Olegario L. Craig Deposition, in MPAA v. 2600

MA; July 5, 2000

See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://cryptome.org/cryptout.htm#DVD-DeCSS (Cryptome Archive)
http://www.2600.com/dvd/docs (2600 Archive)
http://eon.law.harvard.edu/openlaw/dvd/ (Harvard DVD OpenLaw Project)


                                                      VOLUME: I
                                                      PAGES: 1-85
                                                      EXHIBITS: 1-3
                               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 OLEGARIO L. CRAIG,
                     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 3:49 p.m.


             1       APPEARANCES:
                        PROSKAUER ROSE LLP
             3               (By William M. Hart, Esq.)
                             1585 Broadway
             4               New York, New York  10036
                             for the Plaintiffs.
                        FRANKFURT GARBUS KLEIN & SELZ, P.C.
             7               (By Martin Garbus, Esq., and 
                             Edward Hernstadt, Esq.)
             8               488 Madison Avenue
                             New York, New York  10022
             9               for the Defendants.
            11                         ____________



             1                              I N D E X
             2       Witness        Direct  Cross  Redirect  Recross 
             3       OLEGARIO L. CRAIG
             4       (By Mr. Hart)   4                --
                                       E X H I B I T S
                     Exhibit No.                                Page  
                        1       Notice of Deposition.           21
                        2       Subpoena.                       21
                        3       Declaration of Olegario L.
            11                  Craig.                          21



             1                  P R O C E E D I N G S
             2                  OLEGARIO L. CRAIG, 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.  Have you ever been deposed before, Mr. Craig?
             9   A.  Nope.
            10   Q.  Have you ever testified in connection with a 
            11       lawsuit before?
            12   A.  I don't think so.
            13   Q.  How old are you?
            14   A.  30.
            15   Q.  Are you employed?
            16   A.  Yes.
            17   Q.  By whom?
            18   A.  The University of Massachusetts at Amherst.
            19   Q.  How long have you been employed there?
            20   A.  Since July of 1995.
            21   Q.  And has your job capacity changed in any way 
            22       since July of '95?
            23   A.  Yes.  I have acquired more responsibilities, more 
            24       depth of knowledge, and generally sort of have 



             1       been moved away from front line support and into 
             2       second or third tier support, depending on how 
             3       you define the industry terms.
             4   Q.  Second or third tier being higher?
             5   A.  Yes.
             6   Q.  What were your responsibilities when you 
             7       initially went to work for the University of 
             8       Massachusetts?
             9   A.  Analogous to front line help desk support at an 
            10       ISP.  I answered phone calls, I talked to people 
            11       who walk in the front door, I answered E-mail and 
            12       triaged them for type of problem and operating 
            13       system to second and third tier support, if I 
            14       couldn't answer them myself, which was often the 
            15       case.
            16   Q.  Now what do you do?
            17   A.  Now I am primarily responsible for operating 
            18       system issues on Linux and digital Unix systems, 
            19       but I have had a hand in solving problems and 
            20       finding solutions in various operating systems 
            21       and applications --
            22   Q.  I'm sorry, I didn't mean to interrupt you. 
            23   A.  -- and network topologies.
            24   Q.  Do you have a curriculum vitae or resume?



             1   A.  I sort of have one.  I haven't been job seeking 
             2       recently, so I have a very out-of-date job 
             3       description and a very out-of-date resume.
             4   Q.  Can you briefly tell us what your educational 
             5       background is?
             6   A.  Went to the University of Massachusetts as a 
             7       freshman in 1988, studied computer science for 
             8       three years, dropped out for various reasons; 
             9       stayed in the area and went back to UMass after 
            10       two years to pursue a degree in communication, 
            11       which I finished in 1995, May of 1995.
            12   Q.  Is that a bachelor's degree?
            13   A.  Yes, BA.
            14   Q.  Bachelor of arts?
            15   A.  Yes. 
            16   Q.  Do you have any post-graduate degrees or have you 
            17       studied at the post-graduate level?
            18   A.  I have sat in on various classes as part of my 
            19       work, but I don't actually -- I don't have any 
            20       written record of those classes.  I didn't audit 
            21       them formally, as an example. 
            22   Q.  And prior to 1995, did you have any experience 
            23       with computers or the Internet?
            24   A.  Yes, I have been an active participant on the 



             1       Internet since 1986.
             2   Q.  And that's pre the World Wide Web, then?
             3   A.  Oh, yes.  I remember thinking that the World Wide 
             4       Web was yet another newfangled Internet 
             5       application.  Oh, it will never catch on. 
             6   Q.  Is it fair to say that things have changed and 
             7       changed rapidly in the last ten years with 
             8       respect to the Internet?
             9                  MR. HERNSTADT:  Object to the form. 
            10   A.  It depends on what things you're looking at.  
            11       Some things have. 
            12   Q.  Let's talk about bandwidth.
            13   A.  Okay. 
            14   Q.  What kind of Internet connection do you currently 
            15       have at UMass in your office?
            16   A.  In my office I have a hundred megabit Ethernet to 
            17       my desk -- this is actually described in my 
            18       declaration -- a hundred megabit Ethernet to my 
            19       desk which is connected to a gigabit Ethernet 
            20       fiber optic link to the UMass backbone which has 
            21       24 megabit per second link to the general 
            22       Internet, commodity Internet connection is what 
            23       we call it, through Cable & Wireless.
            24   Q.  And what about students at UMass., what kind of 



             1       Internet connections do they have access to 
             2       generally?
             3   A.  Are you talking about the dormitories? 
             4   Q.  Well, if you have different answers for different 
             5       places, tell me.
             6   A.  I do.  The dormitories have a segregated 10 
             7       megabit Ethernet in each dorm.  When I say 
             8       segregated, I mean all the dorms together cannot 
             9       saturate our 24 megabit per second link to the 
            10       Internet at large.  Each of those 10 megabit per 
            11       second Ethernet networks in each dormitory is 
            12       then linked via a hundred megabit uplink to a 
            13       router which connects to our campus FDDI 
            14       backbone.  Those routers are configured not to 
            15       allow each dorm to -- let me back up a second. 
            16                  This is actually not the area that I 
            17       administer, so I'm working on knowledge of 
            18       somebody else's responsibilities here.
            19   Q.  When you say "area," what do you mean by "area"?
            20   A.  I am not responsible for the campus networking, 
            21       I'm only responsible for the computer science 
            22       department.
            23   Q.  Gotcha.  Go ahead. 
            24   A.  Each dorm has a 10 megabit per second internal 



             1       network with a hundred megabit per second uplink, 
             2       so the entire dorm has a 100 megabit per second 
             3       uplink to the router on the campus backbone.  The 
             4       campus backbone is FDDI, digital fiber optical.  
             5       Those are in turn connected to a router which 
             6       connects to the Cable & Wireless point of 
             7       presence in Amherst. 
             8   Q.  And you said a second ago in response to my 
             9       question about what kinds of Internet connections 
            10       the students had access to --
            11   A.  There are various places on campus where students 
            12       can go to use PCs and Macs that are connected 
            13       via, I believe, higher speed networks, hundred 
            14       megabit Ethernet for each PC or Mac, but this is 
            15       a supervised situation with a lab monitor and the 
            16       lab closed at night.
            17   Q.  I'm sorry, is supervised?
            18   A.  Is monitored.  When I was a student, I ran one of 
            19       these, long before it was networked to the 
            20       Internet.  The labs each have monitors, and they 
            21       are expressly for educational purposes:  You're 
            22       not allowed to play games, you're not allowed 
            23       to -- you're not supposed to download things.  
            24       I'm not certain how carefully they monitor 



             1       individual students' activities on each PC or 
             2       Mac.
             3   Q.  Have you had a Napster problem at your school?
             4   A.  Can you define a "problem"? 
             5   Q.  Well, let's start with have you had any problems 
             6       in terms of your servers or networks being 
             7       overloaded as a result of students trading MP3 
             8       audio files through file sharing protocols such 
             9       as Napster?
            10   A.  We have not had anything directly attributable to 
            11       that.  However, I should state that most of the 
            12       servers to which you refer would not be within my 
            13       area of administration, so if there were some 
            14       problems, I could not pinpoint them.
            15   Q.  Gotcha.  And apart from issues of overloading the 
            16       system, as it were, are you aware whether there 
            17       have been any problems in terms of students using 
            18       Napster in violation of any rules of conduct or 
            19       policies of the university?
            20   A.  The university has not prosecuted anyone in 
            21       relation to Napster, nor, to the best of my 
            22       knowledge, have they employed administrative 
            23       sanctions against anyone. 
            24                  If a particular student on the network 



             1       could be shown to be starving the network of 
             2       resources, just hogging as much bandwidth as he 
             3       or she could, there are policies in place under 
             4       which the Office of Information Technologies 
             5       would be free to sanction that student, cut off 
             6       their Internet access, do anything they want, 
             7       regardless of the type of content or transaction 
             8       that caused the problem.
             9   Q.  Gotcha.
            10   A.  It's a shared resource, and part of the 
            11       acceptable use policy that OIT has is a student 
            12       cannot, by means of actions, whether they're 
            13       otherwise legal or not, monopolize the resource 
            14       such that other students can't use it.
            15   Q.  Gotcha.  Do you regard Napster as legal?
            16                  MR. HERNSTADT:  Objection.  He's not a 
            17       lawyer.  If you're asking for his personal 
            18       opinion as opposed to a legal opinion, you can 
            19       answer the question.
            20   Q.  Just so we're clear, to avoid cluttering the 
            21       record with similar objections in the future, I 
            22       will stipulate whenever I ask you a question like 
            23       that, I'm asking for your view and not a lawyer's 
            24       view. 



             1   A.  Okay.
             2                  MR. HERNSTADT:  Let me add then, will 
             3       you also stipulate that anything he expresses in 
             4       terms of his view on what could be considered a 
             5       legal matter is by stipulation not the 
             6       Defendants' position or an admission of anything?
             7                  MR. HART:  He's your witness.  I'm 
             8       just saying I'm not asking a question that calls 
             9       for a legal conclusion. 
            10   Q.  You used the word "legal" in your last answer, 
            11       and we can read it back if you like.  I'm just 
            12       asking what your view of "legal" is. 
            13   A.  Okay.  So which question do you want me to 
            14       answer?
            15   Q.  In your view, is Napster legal?
            16   A.  Okay.  I have read the latest defense brief by 
            17       David Boies as to why he thinks Napster is legal, 
            18       and I think he presents some pretty compelling 
            19       arguments.  I think that Napster, as it exists 
            20       right now, is a method for file transfer, so 
            21       Napster itself, I think, is wholly legal.  It 
            22       sort of falls under what I would see as a common 
            23       carrier definition, regardless of the content of 
            24       the files that are being transferred. 



             1                  (Discussion off the record.)
             2   Q.  Did you ever have any experience in using any 
             3       video compression technologies?
             4   A.  Not since being a student and doing various 
             5       things with videotape while trying to create 
             6       presentations for communications classes.  So not 
             7       in the last five years.
             8   Q.  Okay.  Fair enough. 
             9                  Have you heard of MPEG-4 or DivX?
            10   A.  Yes, I have. 
            11   Q.  And what is your understanding of what that is?
            12   A.  It's a lossy compression algorithm; essentially a 
            13       method for taking video and squeezing as much as 
            14       you possibly can out of it, data that is 
            15       considered unnecessary for the final product, 
            16       much as the water in orange juice is considered 
            17       unnecessary for frozen concentrated orange juice, 
            18       and then putting it into a stream and making it 
            19       playable via a player. 
            20   Q.  Isn't it also like MP3 in the sense that MP3 is 
            21       used to compress audio files for transfer over 
            22       the Internet?
            23                  MR. HERNSTADT:  Objection to form.  
            24       Argumentative.  Go ahead.  If you can answer. 



             1   A.  It is similar in that it compresses.  That is a 
             2       very, very broad statement.
             3   Q.  Have you ever used DivX?
             4   A.  Nope.
             5   Q.  Have you ever used DeCSS?
             6   A.  DeCCS?
             7   Q.  Uh-huh. 
             8   A.  I have not. 
             9   Q.  Do you know what it is?
            10   A.  I do. 
            11   Q.  What is it?
            12   A.  It's a method for -- it's a program that allows 
            13       you to take the contents of a DVD and descramble 
            14       it, decrypt, there are various words being used, 
            15       essentially read it in a readable format from the 
            16       DVD without the use of software sanctioned by the 
            17       MPAA. 
            18   Q.  And how do you know this? 
            19   A.  From reading various documents.  Originally, the 
            20       reason that I came into this is that I was 
            21       looking for a way to play DVDs on my Linux box.
            22   Q.  When you say your "Linux box," what are you 
            23       referring to?
            24   A.  I'm referring to my home computer, which I built 



             1       myself, and I paid extravagant money for a 
             2       hardware DVD player and a hardware DVD decoder 
             3       which I cannot use under Linux.
             4   Q.  When you say hardware DVD player, what are you 
             5       referring to?
             6   A.  I'm referring to two things in that previous 
             7       statement, one of which was a hardware DVD 
             8       player, that is the actual physical player into 
             9       which the DVD sits and which can read disks that 
            10       are formatted in DVD format, otherwise higher 
            11       density than the CD-ROM.  The DVD decoder is a 
            12       piece of hardware, mine happens to be 
            13       manufactured by Creative Labs, that theoretically 
            14       does the decompression and decryption of the DVD 
            15       in hardware so software is not really required to 
            16       access the bits on the DVD.  This offloads the 
            17       necessity of doing decryption and decompression 
            18       on the CPU. 
            19   Q.  I'm sorry, were you finished?  I don't mean to 
            20       interrupt you.
            21   A.  I was just going to say, so theoretically you 
            22       could run it with a slower CPU or with software 
            23       that didn't know how to read DVDs by itself. 
            24                  In answer to your original question, 



             1       the reason I got into this was I looked at a site 
             2       called openDVD, and they had a mention of the DVD 
             3       discussion ongoing at the server at the Harvard 
             4       School of Law, which I went and subscribed to.
             5   Q.  Gotcha.  How long have you owned a Linux-based 
             6       operating system computer? 
             7                  MR. HERNSTADT:  Objection to form.  
             8       How long he's owned the computer or how long he's 
             9       used Linux? 
            10                  MR. HART:  I think the question was 
            11       the latter, but if there's some way you could 
            12       interpret it to mean something else, by all means 
            13       answer the second question. 
            14                  MR. HERNSTADT:  It might be the 
            15       latter.
            16                  THE WITNESS:  I think I understand 
            17       what he means.
            18   A.  I've had Linux as a primary operating system on 
            19       my home computer since 199 -- I want to say 6, 
            20       but it could have been 7. 
            21   Q.  And how much do you have invested in that home 
            22       computer system at this point in terms of sunk 
            23       cost?
            24   A.  It's a difficult thing to answer because I 



             1       upgrade piecemeal.  I buy a new box that I can 
             2       put a new motherboard in, but I keep the old hard 
             3       drive, and then later I buy a new hard drive and 
             4       then scrap the old one or put it in another 
             5       system. 
             6   Q.  Sure, I understand.
             7   A.  That particular system, all told with the stuff 
             8       that's in it right now, I would say over $1,000.  
             9                  Can I make an editorial comment about 
            10       that? 
            11   Q.  If you feel you must, sure. 
            12   A.  Purchasing an equivalent system from one of the 
            13       commercial system integrators like Dell, Gateway, 
            14       IBM, would probably run you upwards of $2,000.  I 
            15       do my own research into hardware integration, and 
            16       there's a fair amount of labor in what I do as a 
            17       hobby and sort of a private consulting business 
            18       that would be soaked up as profit if buying a 
            19       system commercially.
            20   Q.  Gotcha.  You are going to testify at the trial in 
            21       this case; is that right?
            22   A.  I have not been, I think, asked to formally.
            23                  MR. HART:  Mr. Hernstadt is giving me 
            24       the thumb's up, which means he's going to let the 



             1       witness live or someone won a race or something. 
             2                  MR. GARBUS:  Why don't you invite the 
             3       witness to testify.
             4                  MR. HERNSTADT:  No, we intend --
             5                  MR. HART:  I was attempting to have 
             6       the witness testify until Mr. Hernstadt, in the 
             7       middle of his testimony, stuck his thumb up. 
             8                  MR. HERNSTADT:  That was intended to 
             9       communicate to you that we intend to have him 
            10       testify at trial.
            11   Q.  Did you know that?
            12   A.  I had gathered it from inferences, but we 
            13       hadn't -- there was some question as to whether 
            14       this deposition would be videotaped and perhaps 
            15       that would be admissible at trial.  It's going to 
            16       be a hassle for me to go to New York.
            17   Q.  But you can come?
            18   A.  Probably.  I would need to know as far in advance 
            19       as possible as to what day I need to take off 
            20       from work, because we're already short-staffed, 
            21       and there are several vacations due in the months 
            22       of July and August.
            23   Q.  I understand. 
            24                  So far you haven't downloaded DeCSS 



             1       onto your computer; is that right?
             2   A.  That's a good question.  I may have done, because 
             3       it may still be a part of the Linux DVD project's 
             4       source tree, which I downloaded, but have not 
             5       really had a chance to play around with. 
             6   Q.  So you don't know whether you've already 
             7       downloaded DeCSS?
             8   A.  I suspect I have. 
             9   Q.  But you haven't been using it --
            10   A.  No.
            11   Q.  -- in conjunction with your DVD drive to play it 
            12       on your Linux operating system; is that right?
            13   A.  At the present time I'm forced to boot into a 
            14       Microsoft operating system to be able to play 
            15       videos on my DVD player.
            16   Q.  Do you know what language DeCSS operates in, what 
            17       its operating environment is? 
            18                  MR. HERNSTADT:  Objection to form.  If 
            19       you understand the question.
            20                  MR. HART:  That's fine. 
            21   Q.  You can rephrase my question in giving me the 
            22       answer.
            23   A.  DeCSS has been posted, to my knowledge, in 
            24       several different forms.  I understand the 



             1       original executable and source code were written 
             2       for the Windows operating system.  This was for a 
             3       proof of concept, if you will.  As one of the 
             4       pieces of a software DVD player, it's necessary 
             5       to be able to actually read the DVD.  And to do 
             6       so without code that is under NDA or other 
             7       agreement in the open source model is necessary 
             8       for development of an open source player.  
             9   Q.  So it's posted in Windows, is that what you said?
            10   A.  The original source code and executable were 
            11       written for Windows.  However, source code and 
            12       concepts in source code can be easily transferred 
            13       from one operating system to another, it's a 
            14       question of the hooks that you use. 
            15   Q.  Have you, to use your terms, transferred those 
            16       concepts into a Linux application?
            17   A.  Are you asking me whether I've transferred the 
            18       concepts embodied in DeCSS into a Linux 
            19       application? 
            20   Q.  Uh-huh. 
            21   A.  No, I have not.
            22   Q.  Are you personally engaged in that process?
            23   A.  No, I'm not. 
            24   Q.  Apart from your declaration, which we're going to 



             1       mark in a moment, have you prepared any other 
             2       materials for use in connection with this case?  
             3       By "any materials," I mean in any form, whether 
             4       it's written in English or in computer code or 
             5       anything else.
             6   A.  Aside from E-mails that I sent to the public list 
             7       and a couple of things between Wendy Seltzer, and 
             8       Ed Hernstadt and myself, I can't think of 
             9       anything that falls within that definition.
            10   Q.  When you say "the public list," what are you 
            11       referring to?
            12   A.  The discussion list dvd-discuss, which is hosted 
            13       at eon.law.harvard.edu.
            14                  MR. HART:  Let's mark 1, 2, 3.
            15                  (Documents marked as Exhibits 1, 2, 3
            16                  for identification.)
            17                  (Documents exhibited to witness.)
            18   Q.  I've just had the reporter mark and show you 
            19       Exhibits 1 through 3, Mr. Craig.  They should be 
            20       respectively a deposition notice, a subpoena and 
            21       a copy of your declaration. 
            22                  Working backwards, I suppose, turning 
            23       to Exhibit 3 first, is that a true copy of the 
            24       declaration that you submitted in this case? 



             1   A.  Without reading every word, it appears to be.
             2   Q.  Thank you. 
             3                  With respect to Exhibits 2 and 1, have 
             4       you ever seen either of those documents before? 
             5   A.  Presuming they are in fact the subpoena and the 
             6       notice of deposition that -- wait a minute.  Yes, 
             7       presuming they are in fact the same documents 
             8       that were presented to me by the server, I've 
             9       seen them. 
            10   Q.  Okay.
            11                  (Discussion off the record.)
            12                  THE WITNESS:  If it's an appropriate 
            13       time for a break, I'd like another cup of water. 
            14                  (Discussion off the record.)
            15   Q.  Mr. Craig, what expertise do you have in the 
            16       design and operation of system networks?
            17   A.  System networks?  I'm not certain I understand 
            18       what you mean.
            19   Q.  I'm going to have to apologize in advance because 
            20       I'm sure that there will be times when I don't 
            21       use the terminology in the proper way.  What I'm 
            22       trying to refer to is, in a very general way, 
            23       networking of computers into larger systems 
            24       whereby computers can interact with each other 



             1       within an environment such as a college or 
             2       university. 
             3   A.  Sure.
             4   Q.  With that definition in mind, I ask you to answer 
             5       the question. 
             6   A.  For, I would guess, the last three years, I've 
             7       been involved with our own -- when I say "our," 
             8       I'm referring to the Department of Computer 
             9       Science and my group, which is called the 
            10       Computer Science Computing Facility, and as a 
            11       group we are responsible for all of the 
            12       networking infrastructure that the Computer 
            13       Science Department utilizes. 
            14                  We have recently moved to a new 
            15       building and had to plan the network there.  We 
            16       had to upgrade several pieces of old networking 
            17       equipment, several sections of old networking, in 
            18       essence, over the past three years, and of course 
            19       that's an ongoing process. 
            20                  I regularly build custom installations 
            21       of operating system software for computer systems 
            22       which are connected to our networking and in some 
            23       cases are being used as clustering systems; in 
            24       other words, computers that have a private 



             1       network that connects between them as well as 
             2       each computer having an external interphase that 
             3       is seen by the rest of the world, and for all 
             4       intents and purposes these compute servers are 
             5       intended to be seen as one machine.  So the 
             6       private network between the systems does the work 
             7       of sharing the data and the processing load, and 
             8       you in essence have not a massively parallel 
             9       computer, that's actually a technical term, but a 
            10       parallel processing cluster.  You can see bigger 
            11       examples of such things at NASA's Beowulf 
            12       project.
            13   Q.  So you really haven't had responsibility for the 
            14       networks that students have access to through 
            15       their dorms, but you have had responsibility in 
            16       designing and implementing the network as it 
            17       exists in the computer lab facility?
            18   A.  That's correct.  That also includes, that 
            19       includes an educational lab that has networking 
            20       comparable to what you would see in the student 
            21       dorms, except that it's a smaller lab so there 
            22       are less computers than you would find, I would 
            23       guess, in a typical college dorm, presuming that 
            24       one out of two students have a computer connected 



             1       to the network.
             2   Q.  When you say you had a lab that was comparable to 
             3       what was in the dorms --
             4   A.  Yes.
             5   Q.  -- you mean comparable in terms of bandwidth and 
             6       speed?
             7   A.  Yes.
             8   Q.  And that is again what? 
             9   A.  That's the computer science ed. lab.  The speed, 
            10       I assume that's what you're asking?
            11   Q.  Correct.
            12   A.  The speed is 10 megabit Ethernet to a hub, which 
            13       then has a connection to a switch which has a 
            14       connection to our main -- actually, it has a 
            15       connection to our router. 
            16   Q.  Now, in your declaration, you made certain claims 
            17       with respect to the size and speed at which 
            18       certain files could be transferred over certain 
            19       types of networks; is that correct?
            20   A.  That is correct.
            21   Q.  I want to take a look at some of the statements 
            22       that you made in your declaration. 
            23                  In Paragraph 4B of your declaration 
            24       you say that you were able to transfer a 1.5 



             1       gigabyte file using a 10 meg switched Ethernet 
             2       connection, and that the transfer time for that 
             3       size file took two hours and 15 minutes; is that 
             4       -- do I have that right?
             5   A.  That is correct.
             6   Q.  Can you tell me what the effective transfer rate 
             7       of that operation was as a function of your 
             8       actual bandwidth?  And if I don't have it right, 
             9       please correct that in your answer.
            10                  MR. HERNSTADT:  Objection to form.  
            11       You can answer it if you can. 
            12   A.  Okay.  The available bandwidth would be measured 
            13       by the smallest bandwidth available over the 
            14       entire connection.  This actually was a better 
            15       situation than you would expect to find in most 
            16       local area networks, because in order to simulate 
            17       a 10 megabit connection without using one of the 
            18       ed. lab computers, which is the only 10 megabit 
            19       Ethernet available to me, I had to downgrade a 
            20       port on the switch to 10 megabits, which is just 
            21       basically flipping a switch in software on the 
            22       port, on the Ethernet switch. 
            23   Q.  Right. 
            24   A.  So the source computer, the computer from which 



             1       files were being transferred, was connected at a 
             2       hundred megabit Ethernet to a switch, and the 
             3       target computer, to which the files were being 
             4       transferred, was connected at 10 megabit Ethernet 
             5       to the same switch.  In all practicality, that 
             6       situation would never exist in a 10 megabit LAN.  
             7       So this figure is actually a better than average 
             8       or even expected best case, but I think it 
             9       suffices for the purposes of illustration.
            10   Q.  Now can you answer my question?
            11   A.  I'm sorry. 
            12                  MR. HERNSTADT:  Objection to the form, 
            13       being argumentative. 
            14   Q.  What was the effective transfer rate?
            15   A.  The effective transfer rate, according to?
            16   Q.  As a proportion of the overall bandwidth of this 
            17       10 meg connection.
            18   A.  Two hours and 15 minutes per 10 megabit per 
            19       second.  That's something, if you want me to pull 
            20       out a calculator, I can work it out.
            21   Q.  Would you? 
            22   A.  Sure. 
            23                  (Witness complies.)
            24                  So that was not actually a very good 



             1       reflection of a 10 megabit per second Ethernet.  
             2       I actually achieved a transfer rate of 15.5 
             3       megabits per second.
             4   Q.  Which means what in plain English? 
             5   A.  It means I achieved faster than the theoretical 
             6       maximum of the 10 megabit per second Ethernet.  
             7       Probably the port was overloading.  I'd have to 
             8       look at the hardware specs to find out why that 
             9       was.
            10   Q.  You're saying the test in 4B isn't good because 
            11       it actually exceeded what you claim to be 10 
            12       megabit per second capacity?
            13   A.  That's correct.
            14   Q.  Okay.  Now, what would you say that the normal -- 
            15       if there is a range, you can give me the range -- 
            16       but the normal effective transfer rate of 
            17       content, let's say, of a 1.5 gig file would be 
            18       over a 10 meg per second switched Ethernet 
            19       connection?
            20   A.  That's a difficult question to answer.  When you 
            21       say normal, are you talking about a typical local 
            22       area network with other users using it?
            23   Q.  Uh-huh. 
            24   A.  I would expect to see a maximum of one third to 



             1       one quarter the theoretical maximum.
             2   Q.  Which would translate into what in terms of 
             3       speed?
             4   A.  That would be 3 to 4 megabits per second.  I'm 
             5       sorry, one third to one fourth.  Less than 3 
             6       megabits per second.
             7   Q.  Less than 3 megabits per --
             8   A.  2.5 to 3 megabits per second. 
             9   Q.  Now, do you know what the size of a DivX 
            10       compressed feature film is on average in terms of 
            11       file size?
            12   A.  That's a very difficult question to answer.  As I 
            13       understand it, the person doing the compression 
            14       makes choices as to how much compression they 
            15       want to obtain.
            16   Q.  Gotcha.  And the trade-off is between file size 
            17       and image quality; is that --
            18   A.  To a certain extent.  There's a law of 
            19       diminishing returns where as you try, assuming 
            20       you're talking about MPEG, talking about 
            21       reduction of MPEG stream, MPEG has various frames 
            22       in it that are not actual still picture frames 
            23       but merely an explanation of what bits had to 
            24       change from the previous frame.  So the more you 



             1       try to squeeze out, the more changes you have to 
             2       make to the previous frame, so the more data you 
             3       have to put into those intermediate frames.   
             4       There comes a point where the quality will be so 
             5       poor that you can't get anything more out of it 
             6       without doing something else. 
             7                  One of the things that I've seen on 
             8       the explanations of DivX -- meaning, I assume 
             9       we're talking about the new hacked version of 
            10       Microsoft MPEG-4 Kodak and not the old 
            11       pay-per-view scheme from Circuit City -- is that 
            12       you can reduce the frame rate, in other words, 
            13       the number of actual frames that the eye sees, 
            14       from 30 per second, which is the rate at which a 
            15       DVD can display, down to 20 or 24, or perhaps to 
            16       even fewer. 
            17   Q.  Would you accept for the sake of this discussion 
            18       that a feature film could be compressed using 
            19       DivX -- the DivX we were referring to as MPEG-4, 
            20       not the Circuit City scheme, as you referred to.  
            21       Throughout I will be referring to the former 
            22       DivX, not the latter.  Okay? 
            23   A.  The former we discussed, not the former in time?
            24   Q.  Correct.  Just to be clear, the compression 



             1       scheme, not the Circuit City scheme, as it 
             2       were --
             3   A.  Right. 
             4   Q.  -- in your words. 
             5                  That one can compress a feature-length 
             6       movie into a file using DivX into a file size of 
             7       650 megabytes.  Does that sound right to you? 
             8                  MR. HERNSTADT:  Object to the form of 
             9       the question. 
            10   A.  I would not actually be able to accept that 
            11       without seeing the results.  I think that what 
            12       you would get at that point would be so degraded 
            13       in quality from the original that it wouldn't be 
            14       worth watching. 
            15   Q.  You've never used DivX?
            16   A.  But I've never used DivX.  I'm basing that purely 
            17       on my knowledge of what has to be thrown out. 
            18   Q.  Have you ever seen DivX displayed?
            19   A.  I have not. 
            20   Q.  Just work with me for a moment.  I won't ask you 
            21       to accept those numbers as gospel, but if we were 
            22       using 650 megabytes as the file size for a DivX 
            23       compressed movie, using what you consider to be 
            24       a, quote, normal transfer time over a 10 megabit 



             1       per second network with the normal amount of 
             2       traffic, what kind of file transfer time are we 
             3       talking about? 
             4                  MR. HERNSTADT:  Objection to the form 
             5       of the question.  It assumes facts not in 
             6       evidence, or, more specifically, what's the 
             7       source of the movie? 
             8                  MR. HART:  Who cares? 
             9                  MR. HERNSTADT:  Well, if it's a 
            10       camcorder as opposed to a DVD you're talking 
            11       about.
            12                  MR. HART:  Stop.  It's not an 
            13       objection anymore.  Let me make it easy. 
            14                  MR. HERNSTADT:  Please, that's what 
            15       we're looking for.
            16   Q.  (*)4B in your dec, you say, a 1.5 gig file 
            17       transferred using 10 meg per second switched 
            18       Ethernet yielded two hours 15 minutes.  You've 
            19       now said that figure is an error, that was 
            20       actually optimistic --
            21   A.  Right.
            22   Q.  -- for a real 10 meg network, according to you. 
            23                  I guess I'm asking with respect to 
            24       what you believe is the normal transfer, 



             1       effective transfer rate of a real 10 meg network, 
             2       with normal traffic, you use a 650 megabyte file 
             3       rather than a 1.5 gig file, right?
             4   A.  Right.
             5   Q.  What kind of transfer time are we talking about? 
             6       (**)?
             7   A.  Can I take out the calculator?
             8   Q.  Absolutely. 
             9                  MR. GARBUS:  Can I hear the question 
            10       back.
            11                  MR. HART:  Fine. 
            12                  (Record read from * to **.)
            13                  (Discussion off the record.)
            14                  THE WITNESS:  Are we off the record?
            15                  MR. HART:  We can be if you'd like.
            16                  THE WITNESS:  I'd like.
            17                  (Discussion off the record.)
            18                  MR. HERNSTADT:  Back on the record.  
            19       Why don't you explain what happened. 
            20                  THE WITNESS:  In my hasty calculations 
            21       answering the earlier mathematical question, I 
            22       forgot to divide by 1024 once yielding 15, an 
            23       answer of 15 megabits per second, which was in 
            24       fact incorrect.  I actually got 1.5 megabits per 



             1       second.
             2                  MR. HERNSTADT:  That was in response 
             3       to the question on what the effective transfer 
             4       rate was of the 1.5 gigabyte file in Paragraph 4B 
             5       of the Craig declaration?
             6                  THE WITNESS:  Right. 
             7       BY MR. HART: 
             8   Q.  Well, more specifically, it was with respect to 
             9       the effective transfer rate of a 10 meg per 
            10       second switched Ethernet connection subject to 
            11       normal traffic?
            12   A.  Uh-huh.
            13   Q.  Right?
            14   A.  Yes.
            15   Q.  We were talking about what you would expect to 
            16       actually see in that network?
            17   A.  Right.
            18   Q.  Your answer as corrected is what, just so we have 
            19       the record clear in one place?
            20   A.  My answer as corrected would be probably one 
            21       third of that, which would be --
            22   Q.  I'm sorry, one third of 10 megs per second? 
            23   A.  One third to one quarter of 10 megabits per 
            24       second.  But the problem in going between these 



             1       figures is that the number of bits being shoved 
             2       down the pipe does not reflect the number of bits 
             3       in the original file, it reflects that number 
             4       plus all of the overhead for the packet, packet 
             5       encapsulation. 
             6                  Each piece of the file is a certain 
             7       number of bits, but then it's shoved into 
             8       something that has a known beginning and ending 
             9       sequence.  And the beginning sequence also 
            10       specifies the length of that packet and sequence 
            11       number, this is No. 2 of I don't know how many 
            12       packets being shoved down, and a bunch of other 
            13       stuff.  
            14   Q.  Right.  So you're saying we have to take into 
            15       account the 2 of 5 or 2 of 10 nomenclature that's 
            16       part of the file?
            17   A.  Right.  So my answer as to what I would expect to 
            18       see down the pipe on an average Ethernet is the 
            19       number --
            20   Q.  On a 10 megabit per second switched Ethernet 
            21       connection?
            22   A.  Right.  I apologize for my imprecision. 
            23                   -- reflects the number of bits that 
            24       would be moving.  It doesn't reflect what I would 



             1       expect to see for file transfer rates over that 
             2       Ethernet, and I perhaps should have made that 
             3       clear.
             4   Q.  Okay.  So what I'm trying to do, this is not a 
             5       trick question, I'm just trying to get it in one 
             6       place, with all your caveats.  And I'm giving you 
             7       the opportunity, I want that to be clear, for you 
             8       to take into account any of these variables, 
             9       taking into account traffic on the network. 
            10                  And what would you, in your best 
            11       approximation, knowing everything you know, your 
            12       experience, say would be the effective transfer 
            13       rate of file content --
            14   A.  File content.
            15   Q.  Okay.   -- using a 10 meg per second switched 
            16       Ethernet connection?
            17   A.  I would guess between one and -- between 1 and 2 
            18       megabits per second of the actual file.  So let's 
            19       take an average of that:  1.5 megabits for the 
            20       file itself. 
            21   Q.  Okay. 
            22   A.  Which is actually what we got doing our math 
            23       here. 
            24   Q.  Okay. 



             1   A.  Now we're going back to the 650 megabyte?
             2   Q.  I'm that predictable, huh?  That's where we're 
             3       going, Mr. Craig. 
             4                  Again, so the record is clear -- and, 
             5       please, part of my tedium is simply to make clear 
             6       the record.  We may understand each other, but 
             7       when somebody like a judge tries to look at this 
             8       later --
             9                  MR. GARBUS:  Or Garbus.
            10                  MR. HART:  Forget Garbus, he's not the 
            11       test. 
            12   Q.  When somebody tries to make sense of this later, 
            13       the record has to be clear.
            14                  So the next question, as you rightly 
            15       predicted, is what kind of transfer time are we 
            16       talking about when we deal with a 650 megabyte 
            17       file using a 10 megabit per second switched 
            18       Ethernet connection with the effective transfer 
            19       rate that you just described?
            20   A.  Right.
            21                  So I would come up with an answer of 
            22       57 and three quarter minutes. 
            23   Q.  Is it fair to say that 10 megabit per second 
            24       switched Ethernet connections are pretty commonly 



             1       available throughout colleges and universities 
             2       throughout the United States?
             3   A.  The technology has been widely available for 
             4       twenty years.  That's pretty much the de facto 
             5       standard. 
             6   Q.  As implemented?
             7   A.  As implemented. 
             8   Q.  Let's switch to the attachment to your dec for a 
             9       come of minutes, Mr. Craig.  This is the 
            10       supplement, as you call it.  In there you give 
            11       some of the sort of technical parameters of your 
            12       experiments, if you will. 
            13   A.  Right.
            14   Q.  Let me go to paragraph 10 where you're talking 
            15       about, in your words, the trace route from target 
            16       computer A to source computer. 
            17   A.  Uh-huh. 
            18   Q.  This data in the columns numbered 1 through 16 
            19       below paragraph No. 10 reflects 16 hops from 
            20       target to source; is that --
            21   A.  That is correct.
            22   Q.  Would you say that that's a normal number of hops 
            23       for an efficient Internet connection between two 
            24       computers, on average?



             1                  MR. HERNSTADT:  Objection to form.
             2   A.  I think that's actually fairly good.  The two 
             3       computers that we used are relatively close to 
             4       one another in terms of Internet topology, and 
             5       the interlying networks are all relatively high 
             6       speed.
             7   Q.  Okay.  Now, does this trace route for target 
             8       computer A to source computer, right, is that 
             9       applicable in any way to the kind of file 
            10       transfer that you made in example 4B of your 
            11       declaration? 
            12   A.  No.
            13   Q.  Is there a difference between a shared network 
            14       and a switched network; and if so, can you 
            15       explain to me what that difference is?
            16                  MR. HERNSTADT:  Objection to form. 
            17   A.  Yes, there is a difference.  The difference is 
            18       that in a shared network, let's take an example, 
            19       simplify it down to its bare bones, of three 
            20       computers connected to a shared network.  Each 
            21       computer has a line, piece of network cable 
            22       running between it and the hub. 
            23                  The hub is a piece of electronics that 
            24       merely copies everything that exists on any of 



             1       the lines to the other two lines so all three 
             2       computers see the same amount of traffic on the 
             3       network.  They all see -- for instance, computer 
             4       A and B will see all communications going to 
             5       computer C.  Computer C will see all 
             6       communications between computers A and B.  It is 
             7       less efficient than a switched network, but it is 
             8       much more cost effective. 
             9                  A switched network, if we take the 
            10       same three computers, each have a cable running 
            11       between the computer and the switch, the switch 
            12       examines each piece of traffic as it comes in, 
            13       each packet, and determines where it needs to go.  
            14       So communications between computers A and B come 
            15       out of the line attached to computer A, and are 
            16       routed to the connection attached to computer B.  
            17       Computer C never sees those communications.  
            18       Likewise, communications between computer C and 
            19       computer A are never seen by computer B.  It's 
            20       much more efficient because you don't have any 
            21       unnecessary packets being translated.  It's much 
            22       more expensive because the electronics has to be 
            23       able to recognize all the protocols being talked 
            24       across. 



             1   Q.  Do you have switched networks at UMass?
             2   A.  I have switched networks in the networks that I 
             3       administer.  The networks in the dorms at UMass 
             4       are not switched, they are shared. 
             5   Q.  Within any one dorm building --
             6   A.  Yes.
             7   Q.  -- all of the computers are on a shared network, 
             8       but when you leave the dorm and treat that 
             9       building as one unit, are the various dorms 
            10       hooked up in a switched facility --
            11   A.  Yes.
            12   Q.  -- to the network?
            13   A.  I'm sorry.  Are you finished?
            14   Q.  I think we both finished the question.
            15   A.  In point of fact it's my understanding -- again, 
            16       this is not a network I administer personally -- 
            17       it's my understanding that each floor of a given 
            18       dorm has a shared network.  Those shared networks 
            19       all have uplinks that connect to, I believe, a 
            20       switch, which then has a hundred megabit uplink 
            21       to the backbone.
            22   Q.  Gotcha.  I think you answered that more 
            23       eloquently than I asked it, and I thank you for 
            24       that. 



             1                  So switching improves network 
             2       efficiency; is that correct?
             3   A.  Yes. 
             4   Q.  And in that process, would one expect to see less 
             5       burden on a switched system than a shared system 
             6       for a given amount of traffic?
             7                  MR. HERNSTADT:  Objection to the form 
             8       of the question. 
             9   A.  It really depends on the traffic.  If you have 
            10       computers talking to one another -- in other 
            11       words, go back to our previous example with the 
            12       three computers.  Add in a fourth computer, or 
            13       the Internet, it really doesn't matter for 
            14       purposes of the discussion --
            15   Q.  Gotcha.
            16   A.  -- that is on what's known as an uplink port 
            17       attached to the switch or the hub. 
            18                  In the case of the switch, any traffic 
            19       going to or from the Internet gets routed onto 
            20       the Internet port, the uplink.  So if all three 
            21       computers behind the switch are talking to the 
            22       Internet and getting data back, then that uplink 
            23       port is going to be the bottleneck. 
            24   Q.  Gotcha.  But let's take a closed system, take an 



             1       example where we have a file that is going to be 
             2       sent from one computer to another within that 
             3       closed system. 
             4   A.  Okay.  Are we talking about --
             5   Q.  Computer A and B.
             6   A.  They're both behind a hub, or they're both behind 
             7       hubs which are attached to switches put on 
             8       separate networks?
             9   Q.  Forget the hub, they are just part of a switched 
            10       network. 
            11                  By comparison, is that network going 
            12       to be a lot less burden than it would be if there 
            13       was a hub or Internet uplink or some other 
            14       variable in the middle of it?
            15                  MR. HERNSTADT:  Objection to the form 
            16       of the question.  If you understand the 
            17       terminology he used, go head and answer it. 
            18                  THE WITNESS:  I think I do. 
            19   A.  Regardless of the technology in between, the two 
            20       computers can only transmit and receive so fast. 
            21   Q.  Okay.  What's that a function of?
            22   A.  That's a function of the cards and, the cards in 
            23       each computer, the network connecting them and -- 
            24       the network connecting them to the hubs, and the 



             1       speed at which the hub is able to -- I'm sorry, 
             2       you said a switch.
             3   Q.  Let's forget hubs. 
             4   A.  Okay.  The speed at which the switch is able to 
             5       write across ports. 
             6                  In a switched network, two computers 
             7       talking to each other will not burden the switch 
             8       any more than four computers with two talking to 
             9       two. 
            10   Q.  Okay.  And can we do that exponentially?
            11   A.  How far do you want to go?
            12   Q.  16 to 16?
            13   A.  If you have -- well, there aren't that many 
            14       switches --
            15   Q.  Switched. 
            16   A.  -- that -- you'd have to show me a picture of the 
            17       topology that you wanted to describe.  This is 
            18       the kind of thing that drives network engineers 
            19       up the wall.
            20   Q.  Excellent.  I'm glad I'm finally getting to you.  
            21       We say that in jest, because everyone is smiling. 
            22   A.  Providing for the instance in which computer A is 
            23       talking to computer Z is a separate equation from 
            24       the instance in which computer A is talking to 



             1       computer B, if there are, for instance, two 
             2       levels of switches in between.  And it's not fair 
             3       to say that if there are two levels of switches 
             4       in between A and Z, that A and Z talking to each 
             5       other is not going to burden B and Y talking to 
             6       each other. 
             7                  MR. HERNSTADT:  Why don't we take 
             8       five.
             9                  MR. HART:  This is a good opportunity.  
            10       I'm sorry for the interruption. 
            11                  (Brief recess.)
            12       BY MR. HART: 
            13   Q.  Have you ever visited the 2600 web site?
            14   A.  I may have done.  I spend half of my working day 
            15       looking for things on the Internet in order to 
            16       solve problems at work.  I couldn't tell you 
            17       every site that I visited in the last month, let 
            18       alone the last five years.
            19   Q.  You have no specific recollection as a result of 
            20       your involvement in this case --
            21   A.  Unless I followed --
            22   Q.  Let me finish my question for the record. 
            23                  You have no specific recollection of 
            24       having gone to 2600's web site?



             1   A.  Unless I followed a link to a page archived there 
             2       related to the proceedings, which would have been 
             3       within the site and not the front page. 
             4   Q.  How did you first get involved in this case?
             5   A.  I believe we've gone over that, but I'll answer 
             6       it again.
             7                  MR. HERNSTADT:  Go ahead. 
             8   Q.  Well, let me phrase the question a little 
             9       differently, because I don't think we did. 
            10                  Did you contact the Defendants or did 
            11       the Defendants or their lawyers contact you?
            12   A.  The Defendants, or their lawyers in this case, 
            13       contacted me. 
            14   Q.  And who contacted you?
            15   A.  Initially Wendy Seltzer acting, I believe, as 
            16       liaison for Ed Hernstadt.
            17   Q.  And who is Wendy Seltzer?
            18   A.  She is the originator of the Open Law Forum at 
            19       Harvard, which at that point I was a subscribed 
            20       member of, the discussion list. 
            21   Q.  Can you tell me how many communications you've 
            22       had with Mr. Hernstadt or his law firm since the 
            23       first communication with him?
            24   A.  I'd have to sit down and look.  It was mostly 



             1       E-mail.  I'd have to sit down and look at them to 
             2       give you an exact number.  I would say a handful, 
             3       fewer than 20, possibly more than 10.
             4   Q.  Was your communication with Mr. Hernstadt 
             5       exclusively by E-mail?
             6   A.  We had a couple of phone calls.
             7   Q.  "A couple" meaning two or three?
             8   A.  Two or three.
             9   Q.  But apart from two or three phone calls, all of 
            10       your other communications with Mr. Hernstadt were 
            11       via E-mail?
            12   A.  That's correct.
            13   Q.  Do you have those E-mails with you? 
            14   A.  Actually, those E-mails I do not, but I can get 
            15       them for you.  Depending on what kind of network 
            16       there is in this building, I could even do that 
            17       this afternoon, but I can't promise that.  I do 
            18       have the E-mail that I have sent to the DVD 
            19       discussion list with me on a floppy disk.
            20                  MR. HERNSTADT:  Off the record for a 
            21       second. 
            22                  (Discussion off the record.)
            23   Q.  I'm sorry, you said you did have on a floppy with 
            24       you what, Mr. Craig?



             1   A.  I have a floppy containing the text of my 
             2       declaration as I submitted it to Mr. Hernstadt.  
             3       It also has all of the messages that I've sent to 
             4       the DVD discussion list, which I thought you 
             5       might want for some reason. 
             6                  Those are the only things of the DVD 
             7       discussion list over which I feel I have the 
             8       right to hand over in terms of giving you 
             9       documents that are relevant to the case. 
            10   Q.  Is this discussion list a public forum?
            11   A.  Yes.  This is all available online.
            12   Q.  If I got online, I could get whatever you 
            13       submitted?
            14   A.  That's correct. 
            15   Q.  Are you aware that there are at least two CSS 
            16       licensed Linux players at present?
            17   A.  I am aware that people have said that there are 
            18       Linux CSS licensed players.  However, I have not 
            19       seen any evidence of one for sale or for download 
            20       anywhere, and believe me, I looked.  So the 
            21       answer to your question is that in my opinion 
            22       they are what's known in the industry as 
            23       vaporware. 
            24                  (Discussion off the record.)



             1   Q.  To your knowledge, is DeCSS itself a DVD player?
             2                  MR. HERNSTADT:  Objection to form. 
             3   A.  So as part of that question it sounds like you're 
             4       asking me what a DVD player is.
             5   Q.  No, I'm just asking you whether DeCSS in and of 
             6       itself is a DVD player?
             7   A.  In the sense that it does not output files to the 
             8       screen by itself, I couldn't say that it is. 
             9   Q.  To your knowledge, is there currently available 
            10       an unlicensed Linux-based DVD player available?  
            11       And by "unlicensed," I mean one not licensed by, 
            12       to use CSS?
            13   A.  The Linux DVD project, LiViD is how it's 
            14       acronymized, with a capital L, a capital V, a 
            15       capital D and smaller case Is, will play video 
            16       from DVDs.  It is not perfect in that the frame 
            17       rates are not -- the quality overall is not what 
            18       you would see on a well-installed Windows system 
            19       as an example.   The audio can be out of sync at 
            20       times.  Still very much in beta, if that is 
            21       appropriate.  It's a term of art meaning software 
            22       that's not really ready for complete release.
            23   Q.  So to go back to my question, can you give me an 
            24       answer? 



             1   A.  It's available.  It is a DVD player.  It's not a 
             2       fully functional DVD player.
             3   Q.  Have you used it?
             4   A.  To some degree, yeah.  I've seen the quality of 
             5       what it puts out.
             6   Q.  Where did you get it from? 
             7   A.  The LiViD download tree.  
             8                  (Discussion off the record.)
             9   Q.  Do you know if this beta version of a Linux DVD 
            10       player incorporates DeCSS software?
            11   A.  I have not looked at the source code to see what 
            12       is there and compare it to DeCSS.  It is my 
            13       understanding that the portion of the Linux DVD, 
            14       the portion of the LiViD project that does the 
            15       reading of the DVD, including the descrambling 
            16       part of the --
            17   Q.  Decryption?
            18   A.  I don't want to use either of those words, 
            19       really, because it's not quite what it does.  But 
            20       the transfer of the files on the DVD into a 
            21       readable format was written at about the same 
            22       time, the first version was written at about the 
            23       same time DeCSS came about, and I am given to 
            24       understand, based on the mailing list of the 



             1       development project, that the guy who wrote that 
             2       code, a fellow by the name of Derek Fawcus, 
             3       communicated to a great extent with John 
             4       Johansen, the fellow who apparently first posted 
             5       DeCSS, and that there is evidence of -- what's a 
             6       good word -- cross fertilization between the code 
             7       bases.  At one point DeCSS was included as part 
             8       of the CVS repository that one could use to build 
             9       Linux DVD, LiViD.
            10   Q.  CVS standing for what?
            11   A.  Concurrent Versioning System.  It's a method to 
            12       maintain a code base such that multiple people 
            13       can download it, work on it, make changes, fix 
            14       bugs, upload it again, and then merge the various 
            15       version into a coherent whole. 
            16   Q.  You yourself are not a participant in the LiViD 
            17       project?
            18   A.  I am not a participant.  I have not modified any 
            19       code; I have not submitted anything to it.
            20   Q.  You said there's a mailing list of LiViD 
            21       participants; is that right?
            22   A.  Yes. 
            23   Q.  So it would be quite possible to exchange 
            24       information among LiViD participants within that 



             1       group without necessarily posting that 
             2       information to the public, the general public?
             3                  MR. HERNSTADT:  Objection to the form 
             4       of the question. 
             5   A.  Not really.  The way that an open source 
             6       development model works is that you put what 
             7       you've got in a public place, and anyone can come 
             8       and work on it.  And anyone who has an idea that 
             9       looks like it works, that idea gets incorporated 
            10       into the development tree. 
            11   Q.  Gotcha. 
            12   A.  The whole point of being an open source model is 
            13       that there are many more eyes to look at the 
            14       code, and, therefore, bugs are found much, much 
            15       faster.  This is one of the reasons Linux has 
            16       exploded in the last five years. 
            17   Q.  How does one get onto the LiViD mailing list?
            18   A.  One sends an E-mail to the LiViD mailing list 
            19       server saying, "subscribe me to the list." 
            20   Q.  Have you subscribed to the list?
            21   A.  I have not. 
            22   Q.  But if, for example, you had something to 
            23       contribute in this context, you could get on that 
            24       list?



             1   A.  Uh-huh.  Or even if I was just curious.
             2   Q.  You could get on the list?
             3   A.  Yes.  There's no restriction on access. 
             4   Q.  You described a few moments ago in your testimony 
             5       what Mr. Fawcus did or didn't do and what Mr. 
             6       Johansen did or didn't do.  How do you know that?
             7   A.  I have seen excerpts from the archives of that 
             8       list.  I've also seen excerpts of interviews with 
             9       Mr. Johansen and statements attributed to Derek 
            10       Fawcus, but I cannot state with absolute 
            11       certitude that what I saw was a true 
            12       representation of events.
            13   Q.  Okay.  That's fair.
            14                  Have you seen the declaration of Chris 
            15       Moseng in this case?
            16   A.  Yes. 
            17   Q.  Do you know Mr. Moseng?
            18   A.  Nope.
            19   Q.  Have you ever spoken with him?
            20   A.  No.  We've exchanged E-mails.
            21   Q.  That was going to be my next question. 
            22   A.  Okay.
            23   Q.  You've exchanged E-mails?
            24   A.  Yes.



             1   Q.  What was the subject of those E-mails?
             2   A.  He also did some file transfer testing, and at 
             3       one point he sent me mail indicating the results 
             4       of his testing and comparing it with mine, and 
             5       made some comments about, made some comments as 
             6       to the direction he was going to take in his 
             7       declaration.
             8   Q.  And what did he say to you about that? 
             9   A.  I don't at this time recall.  I'd have to look at 
            10       the E-mail again.  Again, you're more than 
            11       welcome to it if you need it.
            12   Q.  Can you produce it to me right now?
            13   A.  I cannot.  It didn't occur to me that it would be 
            14       material. 
            15   Q.  Okay.  Did you review the document request with 
            16       Mr. Hernstadt or Mr. Garbus prior to your 
            17       appearing here today?
            18   A.  We talked about it when I was in the offices 
            19       here, but we didn't really talk about it before 
            20       then, to my recollection.  I could be wrong.
            21   Q.  Are they representing you for the purpose of this 
            22       deposition?
            23   A.  Yes. 
            24   Q.  Were you asked by them to bring any documents 



             1       responsive to the document request to this 
             2       deposition?
             3   A.  No. 
             4   Q.  Is it your understanding that under the subpoena 
             5       you were required to bring with you certain 
             6       documents called for by the document demand?
             7   A.  It was my understanding I was going to give 
             8       testimony related to the document that I had 
             9       already submitted, the declaration, and as to 
            10       facts in my head.  I brought other things with me 
            11       as they occurred to me, just in case. 
            12   Q.  Did you get any advice from Mr. Hernstadt or Mr. 
            13       Garbus about what you were or were not supposed 
            14       to bring to the deposition? 
            15                  MR. HERNSTADT:  You can answer that. 
            16   A.  Not to my recollection, no.
            17   Q.  When did you first engage Mr. Garbus's firm to 
            18       represent you? 
            19                  MR. HERNSTADT:  Object to the form of 
            20       the question, assumes facts not in evidence. 
            21   A.  I did not act to engage Mr. Garbus's firm.  It 
            22       was my understanding that for the purposes of 
            23       this declaration, they would be representing me 
            24       insofar as I am giving evidence on their behalf. 



             1                  MR. HERNSTADT:  You mean declaration 
             2       or deposition? 
             3                  THE WITNESS:  Deposition.  I'm sorry.  
             4       Thank you. 
             5   Q.  Are you saying that you chose yourself to read 
             6       the subpoena and decide what or what you did not 
             7       have to bring here today? 
             8                  MR. HERNSTADT:  Objection to the form 
             9       of the question. 
            10   A.  I believe Ed told me this morning on the phone 
            11       that -- that's not quite the question you asked. 
            12                  No, I don't think so. 
            13   Q.  No, you don't think what?
            14   A.  No, I don't think that I made the decision as to 
            15       what to bring and not to bring entirely on my 
            16       own.
            17   Q.  Then who did?
            18   A.  I believe that I talked to Mr. Hernstadt this 
            19       morning about it.
            20   Q.  So you were advised as to what you were 
            21       responsible for bringing or not bringing to the 
            22       deposition by Mr. Hernstadt; is that correct?
            23                  MR. HERNSTADT:  Objection to the form.
            24   A.  Yes.



             1                  MR. HART:  You can object, you're 
             2       right.
             3   Q.  Now I want the answer.
             4   A.  I think so. 
             5   Q.  You think so? 
             6   A.  Yes. 
             7   Q.  Is "yes" an affirmative answer? 
             8   A.  Yes. 
             9   Q.  Thank you. 
            10                  MR. HART:  Let's take three minutes 
            11       here.  Excuse me. 
            12                  (Discussion off the record.)
            13   Q.  So you did have communications with Mr. Moseng 
            14       via E-mail regarding his testimony.  Did you also 
            15       have communications with him concerning yours?
            16                  MR. HERNSTADT:  Objection to the form.  
            17       It misstates the testimony.
            18   A.  I'm also curious, are we on the record?
            19   Q.  We are absolutely on the record.
            20   A.  You just said that you wanted to take three 
            21       minutes.
            22   Q.  We were only taking three minutes because we got 
            23       interrupted.  I think we're back on the record.
            24   A.  I'm sorry.  I misunderstood.  Could you restate 



             1       the question?
             2                  MR. HERNSTADT:  Could you read it 
             3       back?
             4                  (Question read.)
             5                  MR. HERNSTADT:  And you got my 
             6       objection.
             7   A.  Only to the extent that I mentioned my 
             8       methodologies, and I think I mentioned a choice 
             9       piece of phrasing that I plan to use.
            10   Q.  Which was?
            11   A.  The orange juice analogy.
            12                  THE WITNESS:  Can we take a couple of 
            13       minutes?
            14                  MR. HART:  Sure. 
            15                  THE WITNESS:  I think I need to talk 
            16       to Ed about some stuff.  I don't understand the 
            17       legal terms that are being used, so I want to 
            18       make sure I'm not answering incorrectly, if I 
            19       may. 
            20                  MR. HERNSTADT:  Yeah, come on. 
            21               (Witness and Mr. Hernstadt leave room.) 
            22       BY MR. HART: 
            23   Q.  Do you wish to change any of your answers in view 
            24       of your conversation with Mr. Hernstadt?



             1   A.  No, thank you. 
             2   Q.  Have you had occasion to see a declaration filed 
             3       in this case or produced in this case by a Dr. 
             4       Michael Shamos?
             5   A.  Yes, I have. 
             6   Q.  And when did you first see that?
             7   A.  A few days ago.  Less than a week. 
             8   Q.  And how did you come to first see that?
             9   A.  It was mentioned on the dvd-discuss mailing list. 
            10   Q.  Again, just because I'm old and my memory is 
            11       starting to fail me, this is the Harvard group?
            12   A.  That's the Harvard group. 
            13   Q.  Thanks. 
            14                  And what was said regarding it? 
            15   A.  The first mention of it was John Young saying 
            16       that it was available in Cryptome.  Therefore the 
            17       members of the list, myself included, looked at 
            18       various statements that Dr. Shamos had made and 
            19       tried to figure out where they had come from, how 
            20       he had come to the conclusions he had come to, 
            21       and whether his figures, opinions and conclusions 
            22       really bore weight, in our opinion, our 
            23       collective opinion, being the list. 
            24   Q.  I see.  Well, let me ask you this:  Insofar as 



             1       you're concerned, what are your conclusions 
             2       concerning Dr. Shamos's conclusions?
             3                  MR. HERNSTADT:  Are you going to show 
             4       him the declaration?
             5                  MR. HART:  No, right now I don't think 
             6       we need to. 
             7   A.  I find it surprising that he presented an 
             8       experiment which is not reproducible.  By that I 
             9       mean that there are too many things left out -- 
            10       and I don't think that this was a case of things 
            11       being blacked out by counsel -- too many things 
            12       left out in order to faithfully reproduce the 
            13       circumstances and equipment of his experiment. 
            14   Q.  Like what? 
            15   A.  I'd have to look at the declaration again to be 
            16       sure of all of the items, but --
            17                  MR. HERNSTADT:  If you want the 
            18       declaration, you can have it.
            19                  MR. HART:  He said "but." 
            20   Q.  Do the best to answer it without the declaration.
            21                  MR. HERNSTADT:  Fine.  I'll tell him 
            22       the same thing.  If you can answer without, go 
            23       ahead.  If you want the declaration, you should 
            24       ask for it. 



             1                  MR. HART:  Thank you, Ed. 
             2   A.  In particular he talks about compressing a DVD 
             3       into a DivX, and then gives a transfer time for 
             4       that DivX without stating what size the resulting 
             5       DivX was.  So "I transferred something and it 
             6       took this long," but the "something" wasn't 
             7       really defined. 
             8                  It states that everything was done by 
             9       himself or his assistants acting at his 
            10       direction.  The assistants' expertise is not 
            11       assessed, and there are questions as to what was 
            12       done by whom when. 
            13                  There are obviously portions of the 
            14       chat log, the IRC chat log that are redacted in 
            15       some way.
            16   Q.  Why is that a concern?
            17   A.  There are -- they're talking about how they're 
            18       going to do something, and there are pieces of 
            19       that conversation missing. 
            20   Q.  Pieces of conversation missing, or simply the 
            21       identity of one of the participants?
            22   A.  No, I don't know what's missing, because it's 
            23       missing, but there are pieces of the conversation 
            24       that are not there, and it's obvious, by trying 



             1       to follow the flow of conversation, that the flow 
             2       is interrupted.  One of those pieces specifically 
             3       refers to how the transfer is going to be 
             4       accomplished.  That can be somewhat inferred from 
             5       context. 
             6                  I had one more thought at the 
             7       beginning of this and now I've lost it. 
             8                  Oh, yes.  The file that he downloaded 
             9       in trade from his unknown accomplice on the 
            10       Internet, we don't know how it was produced, 
            11       where was the DivX from, did it actually have its 
            12       origin in a DeCSSed DVD, and if so, how does he 
            13       know that.  And if not, why is it relevant? 
            14                  You'll have to forgive those of us who 
            15       are amateurs and not lawyerly, we do a great deal 
            16       of speculation on this list as to things.  Some 
            17       of it probably seems pretty foolish.
            18   Q.  I'm not making any judgment about what's foolish 
            19       and what's not, I'm just trying to get at the 
            20       truth here. 
            21   A.  Okay. 
            22   Q.  Did you ever hear of Dr. Shamos before?
            23   A.  No.
            24   Q.  Does it surprise you that people are trading DivX 



             1       files of movies on IRC or in other locations via 
             2       the Internet?
             3                  MR. HERNSTADT:  Objection to the form 
             4       of the question. 
             5   A.  I'm not certain why I should be surprised at 
             6       people transferring files.  I guess I really 
             7       don't understand your question. 
             8                  MR. HART:  Read the question back, 
             9       please. 
            10                  (Question read.)
            11                  MR. HERNSTADT:  I'll also object 
            12       because it assumes facts not in evidence.  If you 
            13       can answer it, go ahead. 
            14   A.  File transfer is essentially the function of the 
            15       Internet.  It does not surprise me to find that 
            16       files are being transferred on the Internet.
            17   Q.  How about files of movies?
            18   A.  Movies are files, just like anything else. 
            19   Q.  (*) If, for example, someone used DeCSS to -- I 
            20       think "unscramble" is the preferred word in your 
            21       lexicon, rather than "decrypt"?
            22   A.  Not really, but I haven't found a good word.  
            23       "Reformat," perhaps.
            24   Q.  For the sake of the question, we'll use the word 



             1       "reformat." 
             2                   -- to reformat a DVD movie that was 
             3       CSS encoded -- with me so far?
             4   A.  Uh-huh.
             5   Q.  -- and processed it by DivX to compress it, okay, 
             6       and made that movie file available on the 
             7       Internet, would you regard that as -- without 
             8       permission of the owner of the rights of the 
             9       movie, would you regard that as a normal function 
            10       of the Internet? (**)?
            11                  MR. HERNSTADT:  Objection to the form 
            12       of the question, it's an incomplete hypothetical, 
            13       calls for legal conclusion.  If you can answer 
            14       it, go ahead. 
            15   A.  I'm sorry, can you read back the question. 
            16                  (Record read from * to **.)
            17   A.  No, because the actions that you describe are not 
            18       part of the Internet, they were actions on the 
            19       part of an individual.
            20   Q.  Okay.  We were talking during the break about 
            21       Napster and different views, and I'm not going to 
            22       repeat any of that conversation on the record 
            23       here, but I guess more to the point right now, 
            24       I'm going to ask you what your views of the 



             1       propriety of file sharing of movies on the 
             2       Internet is based on the hypothetical I just gave 
             3       you; namely, the DeCSSed DivX movie put up on the 
             4       Internet, made available to others, without 
             5       permission of the copyright owner.  Is that okay 
             6       or not okay in your book?
             7                  MR. HERNSTADT:  Objection to the form 
             8       of the question, compound, assumes facts not in 
             9       evidence, calls for a legal conclusion. 
            10   A.  I guess it would have to depend on many things.  
            11       I would want somebody else's opinion, probably 
            12       one of the gentlemen in this room at the least, 
            13       as to whether the file available for download, 
            14       that this person made available for download, was 
            15       in fact a copyright violation.  I am given to 
            16       understand that there are cases in which that 
            17       might not be the case. 
            18                  If it's not a copyright violation, 
            19       then of course I'm okay with it.  If it is a 
            20       copyright violation, then it's my view that such 
            21       things occur and are pursued by, again, people 
            22       like the gentlemen in this room, for copyright 
            23       violation, and that there are many ways to 
            24       prohibit people from doing that or deter people 



             1       from doing that, I guess is the best word, and 
             2       existing copyright law takes care of that very 
             3       nicely. 
             4                  And in that regard, once copyright 
             5       infringement has been alleged, then it's up to 
             6       the people who have the beef about it to go after 
             7       the person who posted it originally. 
             8   Q.  Why is it that you don't like to refer to DeCSS 
             9       as a decryption device? 
            10   A.  I'm not an encryption expert.
            11   Q.  Okay.  Accepted. 
            12   A.  But I do know a great deal about its practical 
            13       use.  And if I had a dictionary in hand, I'd look 
            14       up the definition of "encryption," but it 
            15       involves the mixing of a piece of what we'll call 
            16       text in this discussion, with a secret; and in 
            17       order to get the text back in a readable form, 
            18       you have to know the secret. 
            19                  And as a matter of accepted fact among 
            20       cryptologists, as I understand it, the secret 
            21       can't be part of the entire thing that you are 
            22       decrypting; the secret has to be applied in some 
            23       other manner. 
            24                  Again, as I understand it, a DVD 



             1       contains the keys which are necessary to 
             2       unscramble its message right on the DVD, and so 
             3       it is possible, by examining the DVD, and with no 
             4       other information, to find what is there.  So 
             5       it's just taking what's on the DVD and 
             6       rearranging it so that it's readable by an MPEG 
             7       player.  That's not decryption.
             8   Q.  Have you ever tried to ascertain or access the 
             9       keys in a DVD?
            10   A.  I have not. 
            11   Q.  Do you believe that there's a greater potential 
            12       for infringement when you are dealing with 
            13       digital media and the Internet than with analog 
            14       copies and nonelectronic transmission?
            15                  MR. HERNSTADT:  Objection, calls for 
            16       legal conclusion, calls for speculation, assumes 
            17       facts not in evidence.  If you can answer the 
            18       question, go ahead. 
            19   A.  I don't believe so.  Certainly not with the 
            20       current state of technology.
            21   Q.  So, for example, the phenomenon that's known as 
            22       Napster is not, in your view, the product of 
            23       technology and poses no greater threat of 
            24       unauthorized copying than existed before MP3 and 



             1       before file sharing and before the Internet? 
             2                  MR. HERNSTADT:  Objection, misstates 
             3       the testimony. 
             4   A.  I believe that there is an ongoing lawsuit to 
             5       determine whether that's legal.  I certainly 
             6       couldn't comment. 
             7   Q.  I'm not asking you to comment whether it's legal.  
             8       I'm asking you whether the technology enables the 
             9       proliferation of copies, given both the digital 
            10       nature of the content, the format that it's in 
            11       digitally, and also given the facility to 
            12       transmit things over the Internet electronically?
            13                  MR. HERNSTADT:  Object to the form of 
            14       the question.  What are you talking about?  I 
            15       mean, I can't actually let him answer that.  Are 
            16       you talking about MP3 or are you talking about 
            17       movies?
            18                  MR. HART:  Do you want to instruct 
            19       him? 
            20                  MR. HERNSTADT:  Yeah.  Don't answer 
            21       the question unless you understand what he's 
            22       talking about. 
            23                  THE WITNESS:  Okay. 
            24   A.  I don't think that I'm certain enough of what 



             1       you're asking to answer the question. 
             2   Q.  Before you got Mr. Hernstadt's instruction, would 
             3       you have been willing to answer the question? 
             4   A.  I would have been willing to engage in a dialogue 
             5       with you to try to understand the question. 
             6   Q.  Okay.  Then let's take it one step at a time. 
             7   A.  Okay. 
             8   Q.  My focus is not on legalities.  I'm not asking 
             9       you to draw a conclusion about whether the 
            10       behavior is legal or illegal.  I'm simply asking 
            11       you whether, as a practical matter, the 
            12       technology as it exists today enables the 
            13       proliferation of content in a way that is a 
            14       greater threat because of both the digital format 
            15       and the ease of transmission on the Internet?  
            16       And if you want to break down your answer 
            17       differently with respect to audio and video 
            18       recordings, you may do so.  
            19   A.  With respect to audio recordings and MP3 files, 
            20       from what I have read about the ongoing trial, 
            21       there is no evidence whatsoever that harm has 
            22       been suffered, that people are actually copying 
            23       recorded music and deciding not to buy authorized 
            24       works because they have the copy.



             1   Q.  You appreciate that isn't my question.  You're 
             2       not answering my question.  Are you doing that 
             3       deliberately, or is it because you don't 
             4       understand it? 
             5                  MR. HERNSTADT:  Objection, harassment.
             6   Q.  Would you like to have the question read back to 
             7       you so you can answer the question I asked?
             8                  MR. HERNSTADT:  Objection, harassing 
             9       the witness.  Bill, just do it right.
            10                  MR. HART:  Let's have my question read 
            11       back.  I'll ask you to listen very carefully to 
            12       the question before you answer it.  I'd like you 
            13       to answer my question, please.  Okay?  Thank you.  
            14                  (Question read.)
            15   Q.  I see where you went astray on that one.  I 
            16       apologize.  The "greater threat" is what led you 
            17       to talk about economic harm. 
            18                  I want to, again, confine my question 
            19       to simply the ability to multiply files and to 
            20       transmit them, and that there is a difference 
            21       given the digital medium and the availability of 
            22       the Internet to multiply files and transmit them 
            23       more readily given the technology that exists 
            24       today.  That's the question.



             1                  MR. HERNSTADT:  To my prior objections 
             2       let me add Mr. Cooper's favorite question, 
             3       unintelligible. 
             4   Q.  Do you understand the question?
             5                  MR. HERNSTADT:  Go ahead. 
             6   A.  I think so. 
             7                  The Internet, as a part of its 
             8       function, enables file transfer more easily than 
             9       was previously possible.  As to whether that is a 
            10       threat --
            11   Q.  I'm taking "threat" out of the equation. 
            12   A.  Okay. 
            13   Q.  Okay?  (*) Does compression technology facilitate 
            14       file transfer on the Internet?
            15                  MR. HERNSTADT:  Objection to the form.  
            16       Go ahead. 
            17   A.  In answering this question, I'd like to point out 
            18       that there are two broad categories of 
            19       compression technology:  One is called, generally 
            20       speaking, lossless, and the other is called 
            21       lossy.  Lossless compression technology does 
            22       facilitate file transfer on the Internet because 
            23       you get out of a lossless compression exactly 
            24       what you put into it.  You are able to restore 



             1       the full meaning of what you put into the 
             2       compressor.
             3   Q.  Is MP3 lossy and/or lossless?
             4   A.  MP3 is lossy.  MP3 is lossy and DivX is lossy, 
             5       but we'll just talk about MP3. 
             6                  The recording that you get by 
             7       listening to an MP3 is qualitatively different:  
             8       It is lesser than what you put into the MP3 
             9       recorder from the CD, which is, in turn, less 
            10       than what could be heard at the recording studio. 
            11                  MR. HART:  Why don't you read back the 
            12       question before the lossy versus lossless.
            13                  (*Question read.)
            14   Q.  Same question. 
            15   A.  Can you please define --
            16                  MR. HERNSTADT:  Sorry.  Objection, 
            17       asked and answered. 
            18   A.  Can you please define "facilitate" and "file 
            19       transfer," because in terms of compression 
            20       technology, if we're talking about a lossy 
            21       compression, you can't get back the stuff that 
            22       was lost during compression, so if you need an 
            23       exact copy of the original, it's not there, so 
            24       that's not facilitated.



             1   Q.  (*) Is it your belief the people who are using 
             2       Napster are deterred from using it because it 
             3       involves lossy compression?
             4                  MR. HERNSTADT:  Objection.  Objection 
             5       to the form of the question.  It's well outside 
             6       the declaration here.  If you have an opinion.
             7   A.  Napster doesn't enable compression at all.  
             8       Napster is just file transfer.
             9   Q.  I understand.  Let's read that one back -- we'll 
            10       do it the long way -- because you're under oath 
            11       here.
            12   A.  Uh-huh.
            13   Q.  You have to answer my questions.
            14                  MR. HERNSTADT:  He is answering your 
            15       questions, Bill.  He answered the question about 
            16       facilitate.  Go back and read that answer.  He 
            17       said, if it's lossy, it does not facilitate.  He 
            18       answered your question, Bill.  It wasn't quite 
            19       the answer you want.
            20                  MR. HART:  Enough, Ed. 
            21                  MR. HERNSTADT:  You are badgering the 
            22       witness at this point.
            23                  MR. HART:  Ed, enough.  Let's read 
            24       back the question.



             1                  (*Question read.)
             2   Q.  Is Napster an MP3 centric system? 
             3                  MR. HERNSTADT:  Objection to the form.
             4   A.  The way it's currently being used, it's being 
             5       used to transfer MP3s.
             6   Q.  And you've testified that MP3 is a lossy 
             7       compression device, correct?
             8   A.  That's correct.
             9   Q.  (*) So my question is:  Do you think people who 
            10       are using Napster are deterred because it 
            11       involves the use of a lossy compression device? 
            12   A.  I think the reason I'm having trouble answering 
            13       this question is that you're asking about people 
            14       using MP3s, but you're using the word "Napster," 
            15       and it's not equivalent. 
            16   Q.  We'll do it again, then. 
            17                  MR. HERNSTADT:  Bill, listen --
            18                  MR. HART:  I don't want you testifying 
            19       because we're going to get into a real problem.
            20                  MR. HERNSTADT:  I want to put 
            21       something on the record.
            22                  MR. HART:  Then I want the witness to 
            23       walk out of the room.
            24                  MR. HERNSTADT:  You have no idea what 



             1       I'm going to say.
             2                  MR. HART:  I don't want you coaching 
             3       the witness.
             4                  MR. HERNSTADT:  I'm not coaching the 
             5       witness, Bill, what I'm doing is coaching you.  
             6       You can take this deposition any way you want to.  
             7       I'm permitting you to go well outside the scope 
             8       of anything that's relevant or reasonable because 
             9       I want this witness to be finished and be 
            10       reasonable.  You have to be polite.  Don't badger 
            11       the witness.  Okay?  You can do it the long way, 
            12       you can do it the short way, but do it nice 
            13       either way. 
            14                  MR. HART:  Are you done, Mr. 
            15       Hernstadt?
            16                  MR. HERNSTADT:  I'm done.  You can 
            17       continue now.
            18                  MR. HART:  Thank you.
            19                  MR. HERNSTADT:  You're welcome. 
            20                  MR. HART:  Read the last question 
            21       back. 
            22                  (*Question read.)
            23                  MR. HERNSTADT:  Restate my objections. 
            24   Q.  Do you want to answer the question? 



             1   A.  I think that people who are using MP3s know that 
             2       they are using a lossy compression algorithm, and 
             3       accept that as part of the usefulness of MP3s.  I 
             4       think that people who are using Napster to 
             5       transfer MP3s have already accepted that. 
             6   Q.  Uh-huh.  So the answer to my question whether the 
             7       use of lossy compression, as you call it, has 
             8       deterred people from using it in the context of 
             9       MP3 compression as it's used in Napster file 
            10       transfer protocol is, no, it hasn't deterred 
            11       people just because it's lossy compression, 
            12       right?  Isn't that the answer?
            13                  MR. HERNSTADT:  Objection.  You are 
            14       badgering the witness again, Bill.  He can answer 
            15       the way he wants to.  Asked and answered. 
            16   A.  I would say that that question leaves out the 
            17       fact that people who don't want to use MP3s are 
            18       already not use being MP3s and therefore are not 
            19       using Napster.  So the people using Napster are 
            20       obviously not deterred because they're not the 
            21       ones who decided MP3s are not good enough.
            22   Q.  Do you know how many people that comprises?
            23   A.  I have no idea.
            24   Q.  In the millions?



             1                  MR. HERNSTADT:  Objection, asked and 
             2       answered.
             3                  MR. HART:  I'm sorry?
             4                  MR. HERNSTADT:  Objection, asked and 
             5       answered. 
             6   A.  I do not know. 
             7   Q.  Are there any other areas that you contemplate 
             8       testifying on at trial that we have not already 
             9       discussed here today in your testimony? 
            10   A.  I really have no idea how I will be useful to 
            11       either side in my testimony.  I've certainly not 
            12       had any discussions with Mr. Garbus or Mr. 
            13       Hernstadt regarding how I would testify.  I 
            14       didn't really know for sure until today that I 
            15       would be testifying. 
            16   Q.  Do you consider yourself an impartial witness? 
            17                  MR. HERNSTADT:  Objection to the form 
            18       of the question.  Go ahead. 
            19   A.  To the best of my knowledge, I would be 
            20       testifying to facts.  I don't see how one can be 
            21       partial to facts. 
            22   Q.  How much storage capacity do you have on your 
            23       home computer?
            24   A.  On the largest computer, I have 40 gigabyte hard 



             1       disk. 
             2   Q.  What did that cost you? 
             3   A.  Three months ago, I think -- no, closer to five 
             4       months ago, it cost me between $250 and $300.
             5   Q.  And is the time at which you purchased that hard 
             6       drive relevant to its cost?
             7   A.  Hardware prices tend to go downwards over time. 
             8   Q.  Ever hear of Gnutella?
             9   A.  You're talking about Gnutella with a G in front 
            10       of it? 
            11   Q.  Yes. 
            12   A.  Yes, I have. 
            13   Q.  What is it?
            14   A.  It is the same idea as Napster in terms of a file 
            15       sharing protocol, but it's decentralized.
            16   Q.  Do you know why it's decentralized?
            17   A.  You're asking me to speculate on the design 
            18       decisions of the programmers, and I haven't seen 
            19       any statements by the programmers.
            20   Q.  Is there a technical reason or some other reason, 
            21       based on your knowledge, as to why it would be 
            22       designed to be decentralized?
            23   A.  For the same reason the Internet is 
            24       decentralized.



             1   Q.  Which is?  I'm sorry?
             2   A.  It eliminates a single point of failure. 
             3   Q.  You said a little bit earlier when we were 
             4       talking about hypotheticals about file transfer 
             5       of movies, and you raised an issue about 
             6       copyright protection, that you were "given to 
             7       understand," I think you used the words, that 
             8       there may not be copyright on some, or something 
             9       like that.  I'm not interested in pinning you 
            10       down on that particular thing than I am in trying 
            11       to understand "given to understand."  If you need 
            12       to repeat your testimony so you understand --
            13                  MR. HERNSTADT:  Can you read back the 
            14       question, please.
            15                  THE REPORTER:  I'm sorry, which 
            16       question?
            17                  MR. HART:  I'll rephrase the question, 
            18       just in the interest of moving it along.  You 
            19       look tired, Ed.
            20                  MR. HERNSTADT:  Thank you.  I'm just 
            21       confused by that question.
            22   Q.  Do you recall earlier when we were talking about 
            23       file sharing and video, you made a distinction 
            24       between that which was copyrighted and that which 



             1       was not, or that which amounted to copyright 
             2       infringement and that didn't.  Do you recall 
             3       making that distinction?
             4   A.  I do recall making that distinction.  That's very 
             5       different from copyright protection.
             6   Q.  You said something to the effect you were given 
             7       to understand in certain instances file sharing 
             8       of content on the Internet was not copyright 
             9       infringement.  I don't want to misstate what you 
            10       said, so correct me if I'm wrong.  Is that what 
            11       you said?
            12   A.  That is what I said. 
            13   Q.  When you say you were "given to understand" that 
            14       in such instances, based on what? 
            15   A.  I believe this was regarding a discussion of the 
            16       brief in the Napster case by David Boies -- how 
            17       do you say that? 
            18   Q.  You've said it correctly.
            19   A.  Boies. 
            20                   -- wherein he makes an argument that 
            21       under the law regarding copyrights, that sharing 
            22       of copyrighted works between noncommercial 
            23       parties is not necessarily copyright 
            24       infringement.



             1   Q.  Okay.  Do you share that view? 
             2   A.  I -- that's a legal conclusion.
             3   Q.  No, no, I'm not asking you for a legal 
             4       conclusion.  I'm asking you if that's your view, 
             5       if you adopt that view, if you personally feel 
             6       like that's correct?
             7                  MR. HERNSTADT:  Which question do you 
             8       want him to answer?
             9                  (Discussion off the record.)
            10                  MR. HERNSTADT:  State which question 
            11       you're answering when you answer it. 
            12   A.  I'm sorry, can you read back the --
            13   Q.  I asked you if you shared that view?
            14   A.  I understand you asked me if I shared that view.  
            15       I'm asking her to read back the record so that I 
            16       can understand which view I'm sharing. 
            17   Q.  Mr. Boies's view that file sharing is not 
            18       infringement, that it's okay if it's done as you 
            19       describe it?
            20   A.  I think that -- I'm sorry.
            21                  MR. HERNSTADT:  Let me object to this 
            22       entire line of questioning as calling for legal 
            23       conclusions.  Go ahead.
            24   Q.  We've been over that ground.  I'm not asking for 



             1       a legal conclusion, I'm asking you if that result 
             2       is something you approve of, if you think that's 
             3       okay, if that's right in your gut?
             4   A.  As I the lay person understand it?
             5   Q.  As a lay person involved in computers, involved 
             6       in networks, who put in a declaration in this 
             7       case and participates to the degree that you 
             8       participated in these issues, yes, as a lay 
             9       person. 
            10   A.  Okay. 
            11   Q.  Okay.
            12   A.  I'm sorry, I have a habit of speaking where I 
            13       sometimes pause in the middle.  That was such a 
            14       pause. 
            15                  As I, a lay person, understands it, 
            16       copyright is solely for the promotion of science 
            17       and the useful arts, I think is the original 
            18       phrase.  And to that end, Congress gives 
            19       copyright to authors and creators so they may be, 
            20       so that they are given incentive to keep on 
            21       writing and creating.  And that in order for 
            22       copyrighted works to be of use to the rest of us 
            23       who didn't write them or create them, that 
            24       something called fair use exists where one makes 



             1       use of the copyrighted work, and such use is 
             2       inherently not copyright infringement because 
             3       it's fair use.  And if I understand Mr. Boies 
             4       correctly, there are instances in which sharing 
             5       of copyrighted works is fair use and therefore 
             6       not infringement. 
             7                  MR. HART:  I don't think I have 
             8       anything further for you, Mr. Craig, and I thank 
             9       you for your patience.  And I apologize for the 
            10       difficulties in communications here today.  I'm 
            11       sure it was my fault, not yours.
            12                  MR. GARBUS:  I agree. 
            13                  MR. HERNSTADT:  We're done?  Thank 
            14       you.  Thank you, Mr. Craig. 
            15                  (Whereupon, at 6:22 p.m., the 
            16       deposition was adjourned.)



             1                  C E R T I F I C A T E
             2       I, OLEGARIO L. CRAIG, do hereby certify that I 
                     have read the foregoing transcript of my 
             3       testimony given on July 5, 2000, and I further 
                     certify that said transcript is a true and 
             4       accurate record of said testimony (with the 
                     exception of the corrections listed below):
                     Page      Line       Correction
            16       Dated at                         , this        
                     day of                 , 2000.
            18                              OLEGARIO L. CRAIG



             1                  C E R T I F I C A T E
             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 OLEGARIO L. CRAIG, 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.
            20                              Loretta Hennessey, RMR
            21                              Notary Public
            23       My Commission Expires: 6/10/05