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1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 00 Civ. 20277 - - - - - - - - - - - - - - - - -X 3 UNIVERSAL CITY STUDIOS, INC., : 4 PARAMOUNT PICTURES CORPORATION, METRO-GOLDWYN-MAYER STUDIOS, INC., : 5 TRISTAR PICTURES, INC., COLUMBIA PICTURES INDUSTRIES, INC., TIME : 6 WARNER ENTERTAINMENT CO., L.P., DISNEY ENTERPRISES, INC., and : 7 TWENTIETH CENTURY FOX FILM CORPORATION, : 8 Plaintiffs, : 9 Vs. : 10 SHAWN C. REIMERDES, ERIC CORLEY, : 11 a/k/a "EMMANUEL GOLDSTEIN" and ROMAN KAZAN and 2600 ENTERPRISES, : 12 INC., : 13 Defendants. 14 - - - - - - - - - - - - - - - - - - X 15 Videotape deposition of EDWARD FELTON, 16 taken in the above-entitled matter before 17 Michele Anzivino, Notary Public of the 18 State of New York, taken at the offices of 19 PROSKAUER ROSE, 1585 Broadway, New York, New 20 York on Friday, July 7, 2000 commencing at 21 10:28 a.m. 22 23 NEW YORK REPORTING COMPANY (USA), LTD. 245 PARK AVENUE 24 39TH FLOOR NEW YORK, NEW YORK 10167 25 (212) 792-5623 Fax: (212) 792-5624 2 1 2 A P P E A R A N C E S: 3 PROSKAUER ROSE, LLP 4 1585 Broadway New York, New York 10036-8299 5 Attorney for Plaintiffs (212) 969-3095 6 By: WILLIAM M. HART, ESQ. LEON PHILLIP GOLD, ESQ. 7 FRANKFURT, GARBUS, KLEIN & SELZ, P.C. 8 BY: MARTIN GARBUS, ESQ. 488 Madison Avenue 9 New York, New York 10022 (212) 826-5582 10 Attorney for Defendant Eric Corley 11 12 13 Also present: Eileen McDonald, Videographer 14 15 16 17 18 19 20 21 22 23 24 25 3 1 2 I N D E X 3 4 WITNESS EXAMINATION BY PAGE 5 EDWARD FELTEN 6 Mr. Hart 5 7 INDEX TO EXHIBITS 8 PAGE 9 1 Documents 8 10 2 Documents 8 11 3 Copy of declaration 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 2 THE VIDEOGRAPHER: This is 3 Eileen Dougherty. We are going on 4 the record at 10:30 a.m. on July 7, 5 2000. We are here for the case 6 Universal versus Reimerdes. The 7 witness today is Edward Felten. We 8 are at the location of 1585 9 Broadway, New York, New York. 10 Will the attorneys please state 11 their appearances for the record. 12 MR. HART: Yeah. This is Bill 13 Hart from Proskauer Rose for the 14 plaintiffs. 15 MR. GARBUS: Martin Garbus, 16 Frankfurt, Garbus, Klein & Selz for 17 the defendant. 18 THE VIDEOGRAPHER: Will the 19 court reporter please administer 20 the oath. 21 E D W A R D F E L T E N , 22 having been first duly sworn, was examined and 23 testified as follows: 24 EXAMINATION 25 BY MR. HART: 5 1 EDWARD FELTON 2 Q. Good morning, Mr. Felten. 3 A. Good morning. 4 Q. Have you ever been deposed before? 5 A. Yes, twice. 6 Q. In what matters? 7 A. Both times in U.S. versus 8 Microsoft, the antitrust case. 9 Q. Oh. 10 And if you can just tell me 11 generally what the subject matter was that you 12 testified to in those depositions. 13 A. Sure. The first time was in the 14 main part of the case, and I testified mostly 15 about issues relating to software design and 16 software construction, about operating systems 17 and browsers and how they related to each other 18 in general. And then specifically how 19 Microsoft's products, Windows '95 and '98 and 20 Internet Explorer, related. 21 Q. Okay. 22 And what you just described was the 23 subject matter of both of the depositions you 24 referred to? 25 A. Both depositions talked about those 6 1 EDWARD FELTON 2 matters. 3 And then the second deposition I 4 also talked about -- that was in the rebuttal 5 phase of the trial. And so I talked about 6 rebutting some of the Microsoft witnesses 7 statements on those same topics. 8 Q. Okay. 9 And who were you testifying on 10 behalf of? 11 A. Of the -- of the Department of 12 Justice. 13 Q. Okay. 14 Did you ever testify at the trial 15 or in any of the court proceedings in that 16 action? 17 A. Yes, I testified twice in court. 18 Q. Okay. 19 And was your testimony related to 20 the same subjects that you just described? 21 A. Yes. 22 Q. Was there anything else in your 23 court testimony in addition to what you 24 described regarding your deposition testimony? 25 A. Let me think about that. There was 7 1 EDWARD FELTON 2 a discussion of security issues in -- in my 3 court testimony which I -- which was not on the 4 list I gave you before. 5 Q. Okay. 6 And by "security issues," what do 7 you mean? 8 A. The implications for the security 9 of PCs of various things that Microsoft had 10 done. 11 Q. Okay. 12 And by "security," do we mean 13 preventing people from getting unauthorized 14 access into the P.C. or what? I mean, I just 15 -- 16 A. Both. Both preventing unauthorized 17 access to the P.C. and also privacy issues. 18 That is, what kinds of information about the 19 user of the P.C. become available to other 20 people across the Net. 21 Q. Got you. Okay. 22 I want to mark a couple of 23 exhibits, and I'm trying to do this as 24 efficiently as possible. 25 MR. HART: Ms. Reporter, I'm 8 1 EDWARD FELTON 2 going to hand you Exhibits 1, 2 and 3 3 in that order. Marty, just give 4 us a moment. 5 Q. Mr. Felten, I'll have you identify 6 these for the record once the reporter has 7 marked them. 8 A. Okay. 9 MR. HART: Actually, those 10 copies are for you, Marty, because 11 I prefer the witness refer to the 12 ones that will have exhibit numbers 13 to make it a little easier. 14 (Thereupon, Documents marked as 15 Felten Exhibits 1, 2 and 3 for 16 identification as of today's date) 17 Q. Okay. If you would sequentially, 18 Exhibits 1, 2 and 3, and if you don't mind my 19 just asking -- 20 A. Okay. 21 Q. -- a group question for all of 22 them. 23 A., Have you ever seen the document 24 before, and B., If so, what is it? 25 A. Okay. Number 1, I do not think I've 9 1 EDWARD FELTON 2 seen. 3 Q. Okay. 4 A. I've not seen Number 2. 5 Q. Okay. 6 A. And Number 3 I have seen, and this 7 was a copy of a declaration which -- which I 8 prepared. 9 Q. Okay. 10 A. And it has my C.V. as -- as an 11 appendix to it. 12 Q. Very good. 13 Are you going to be testifying in 14 the trial of this case? 15 A. I expect to. 16 Q. Okay. 17 Is there any reason, to your 18 knowledge, based on your own availability that 19 you wouldn't be able to, assuming that the 20 court goes forward on the date scheduled? 21 A. It depends on the length of the 22 trial. 23 Q. Okay. 24 A. I understand the trial is scheduled 25 to start on the 17th. 10 1 EDWARD FELTON 2 Q. Right. 3 A. And for the first two weeks 4 beginning on the 17th, I'm available. 5 Q. Okay. 6 A. The following week I am not sure 7 about my availability. I have a consulting job 8 that will involve a trip to Ottawa, and I'm not 9 sure which day that will be on. That still has 10 to be arranged with the people I would be 11 visiting. 12 Q. Okay. 13 A. And if the trial goes beyond the 14 third week, then I'm not sure. 15 Q. I understand. 16 Were you asked to collect any 17 documents in your possession or control to turn 18 over in connection with this case or with your 19 deposition? 20 A. No. 21 Q. Okay. 22 When were you first contacted about 23 the possibility of your testifying in some form 24 or another in connection with this case? And 25 by "testifying" I mean both in deposition 11 1 EDWARD FELTON 2 and/or at trial. 3 A. I don't recall exactly when it was. 4 I think -- I'd estimate it was perhaps two 5 months ago. 6 Q. Okay. 7 And who made that contact to you? 8 A. The first -- the first contact I 9 had actually was at a -- at a lunch. Professor 10 Appel was going to have lunch with Mr. Garbus 11 in Princeton and -- and Professor Appel invited 12 me to come along and I talked with Mr. Garbus 13 at that lunch. That was the first contact I'd 14 had. 15 Q. Okay. 16 And prior to being invited to that 17 lunch had you ever heard of this case before? 18 A. Yes. 19 Q. When did you first hear of this 20 case? 21 A. I don't remember exactly when I 22 heard of it. It was, to estimate, perhaps 23 January. 24 Q. Okay. 25 And how did you first hear of it? 12 1 EDWARD FELTON 2 A. In conversations with -- with 3 colleagues. I think that's when I first heard 4 of it. 5 Q. Colleagues where? 6 A. It -- it would have been at a 7 conference, at a discussion during a break 8 session in a conference. 9 Q. Is this a conference at Princeton 10 or elsewhere? 11 A. I went to a number of conferences 12 in January, but I don't -- it would have been 13 elsewhere, but I don't know which conference 14 exactly. 15 Q. Okay. 16 Was Mr. Appel one of the colleagues 17 that you include? 18 A. No. 19 Q. Okay. 20 A. I should -- let me clarify. By 21 "colleagues" I mean people working in the same 22 field as me, not necessarily people at 23 Princeton. 24 Q. Got you. 25 But Mr. Appel was not at that 13 1 EDWARD FELTON 2 conference? 3 A. He was not -- no, he was not at any 4 of the conferences I went to. 5 Q. Now, you work -- I don't mean to 6 interrupt you. 7 A. I'm finished. 8 Q. Okay. I'll try not to do that. 9 You work with Mr. Appel at 10 Princeton? 11 A. Yes. 12 Q. Okay. 13 Can you tell me what differences 14 there are between your two respective 15 specialties or knowledges or areas of 16 expertise? 17 A. Sure. I can talk about some areas 18 in which I have more knowledge and expertise 19 and other areas where he has more if that's a 20 helpful way to do. 21 Q. Fine. That would be great. 22 A. Okay. I think I have more 23 expertise in general, in issues relating to 24 security and cryptography. I have more 25 expertise related to operating systems and what 14 1 EDWARD FELTON 2 you might call Internet software. He has more 3 expertise related to programming languages, 4 software engineering and topics related to how 5 software is generally constructed. 6 Q. And are there areas where at least 7 in general you'd say the two of you overlap in 8 terms of your respective expertises, knowledge 9 or experience? 10 A. Sure. I think we both have -- when 11 I gave you the list of areas there, I didn't 12 mean to imply that he has no expertise in areas 13 where I have more, nor that I have none in 14 areas where he has more. 15 Q. I appreciate that. 16 A. So yes, there's -- there is a 17 significant amount of overlap between -- 18 between our expertise. 19 Q. Okay. 20 When you said a minute ago that one 21 of the areas that you have special knowledge in 22 is in Internet software-- 23 A. Yes. 24 Q. -- what do you mean by "Internet 25 software"? 15 1 EDWARD FELTON 2 A. I mean the workings and designs of 3 things like Web browsers and e-mail software 4 and so on, the sorts of software that people 5 use when accessing the Internet. 6 Q. Okay. 7 And does that also relate to -- 8 does that expertise, if you will, also relate 9 to the networking capabilities and speed of 10 networks with respect to the Internet? 11 A. I think I probably have more 12 experience and expertise than he does relating 13 to how Internet -- the Internet works, sort of 14 the plumbing, the guts of it. 15 Q. Mm-hmm. 16 A. As far as the speeds, I'm not sure. 17 Q. Okay. 18 A. I'm not sure how I would 19 characterize that. 20 Q. Okay. 21 A. Whether I would know more or he 22 would know more. 23 Q. Okay. Fair enough. 24 Can you tell me in your 25 professional estimation what basic factors 16 1 EDWARD FELTON 2 contribute to or play a role in Internet 3 network speed? 4 A. Well, that's a big topic. 5 Q. I understand. 6 A. There are a number of -- and it's a 7 question that can be sort of answered at 8 different technological levels. But let me try 9 to give a basic answer. 10 Q. Please. 11 A. You -- one of the factors is what 12 is -- what are the basic hardware building 13 blocks you are using. 14 Q. Okay. 15 A. But there are a lot of other 16 factors that have to do with the -- the 17 distances over which you are communicating. 18 Q. Geographic distances? 19 A. Geographic distances, yes. 20 Q. Okay. 21 A. With the software that you are 22 using at the end points, with the amount of -- 23 the effective speed you get depends on how much 24 congestion there is in the Net between Point A 25 and Point B, and it also depends in complicated 17 1 EDWARD FELTON 2 ways on sort of the design or architecture of 3 the Internet and the networks. 4 Q. Okay. 5 Are there any other factors in 6 general terms -- 7 MR. GARBUS: Excuse me, what's 8 that noise? 9 MR. HART: I think you are 10 hearing footsteps again, Marty. 11 Just to be clear, I mean, there is 12 a paging system in the office, and 13 you may be hearing that and I 14 apologize for that. 15 MR. GARBUS: I see. I see. 16 A. No other factors come to mind. 17 Q. Okay. 18 A. I may be missing something. 19 Q. Well, we'll coming back to that. 20 Again, I was looking for a sort of general 21 answer -- 22 A. Okay. 23 Q. -- at this point. 24 Did you have an opportunity to 25 review Mr. Appel's deposition transcript before 18 1 EDWARD FELTON 2 you appeared here today? 3 A. Yes. 4 Q. Okay. 5 Did he basically get it right? Are 6 there any things you disagree with in what he 7 said? 8 A. I don't recall disagreeing with 9 anything. 10 Q. Okay. 11 Apart from your declaration which 12 we've marked as Exhibit 3 here, have you 13 prepared any materials, whether written or 14 demonstrative, and by "demonstrative" I'm 15 including such things as software or 16 illustrations of how software works, in 17 connection with your involvement in this case? 18 A. No. 19 Q. Do you plan to, prior to testifying 20 at the trial? 21 A. No, I don't have any plans to do 22 that. 23 Q. Okay. 24 Can you tell me, to the best of 25 your knowledge, what general areas you intend 19 1 EDWARD FELTON 2 to or are prepared to testify on in the trial 3 of this case? 4 A. Sure. 5 Q. Yes. 6 A. Well, of course I'll answer 7 whatever questions I'm asked. 8 Q. Of course. 9 A. But what I would anticipate is I 10 think laid out pretty well in the declaration. 11 Q. Okay. 12 A. And there is a list of four topics 13 here. 14 Q. Okay. 15 There is nothing else, to your 16 knowledge, as we sit here today that you plan 17 to testify on at the trial or that you are 18 right now prepared to testify on at the trial 19 apart from what's in your declaration? 20 A. I don't plan to testify to anything 21 beyond this as opposed to -- if -- if you're -- 22 with regard to what I'm prepared to testify 23 about in this -- I have a lot of general 24 knowledge about computer science and my -- and 25 my areas of specialty -- 20 1 EDWARD FELTON 2 Q. Got you. 3 A. -- which I think I'm prepared to 4 testify about that, but I don't expect to. 5 Q. Got you. Okay. 6 Have you ever personally been 7 involved in a situation where a security or 8 encryption system has been hacked, in a 9 nonpejorative sense, and the results of that 10 hack disseminated to others? 11 MR. GARBUS: By "hack" you mean 12 also broken or compromised? 13 Q. And again, I'm not trying to -- to 14 be pejorative in any sense. If you have a 15 better word, I'll use your word. 16 A. Right. So I'm interpreting 17 "hacked" here to mean broken -- the system was 18 broken or a flaw was found in it. 19 Q. Okay. Fine. 20 A. And the result -- and the results 21 of that -- if you take the results of that to 22 include the knowledge of what was wrong with 23 the system and how the -- how the -- the -- the 24 flaw was discovered and so on, how it was 25 fixed, then yes. 21 1 EDWARD FELTON 2 Q. In how many instances have you been 3 involved in such a situation? 4 A. I'd estimate about a dozen. 5 Q. Okay. 6 In each of those instances, was the 7 proprietor of the system contacted after the 8 flaw was discovered or the system was broken? 9 A. So when I said it doesn't, I meant 10 ones in which I had been involved in 11 discovering the security flaw in one way or 12 another. 13 Q. As opposed to? 14 A. As opposed to ones in which someone 15 else had discovered it and I was aware of what 16 was happening and so on. 17 Q. And in the latter category, how 18 many were you involved in, in that way, where 19 you weren't the discoverer but you were 20 involved to one degree or another? 21 A. Maybe five. 22 Q. Okay. 23 And what -- can we put a time span 24 on all of these? I mean, is there -- 25 A. Sure. We can start in, say, early 22 1 EDWARD FELTON 2 1996 up until about the present. 3 Q. Okay. 4 Now, with respect to any of them -- 5 and I'm including for the purposes of these 6 questions both the ones that you were the 7 discoverer of a flaw in and the ones where you 8 weren't the discoverer but you were involved in 9 some way or another in the exercise. Were 10 there any that involved some kind of contact or 11 communication with the proprietor of the system 12 regarding the existence of the flaw or of the 13 compromise or of the break? 14 A. Yes. 15 Q. Did all of them involve some 16 contact or communication with the proprietor of 17 the system regarding that subject? 18 A. All of them did eventually. 19 Q. Okay. 20 And by "eventually," what do you 21 mean? 22 A. What I mean was that at some point 23 in time the person who discovered the flaw 24 communicated with the -- the -- what you call 25 the proprietor, the -- the creator of the 23 1 EDWARD FELTON 2 system to discuss the flaw. 3 Q. Okay. 4 Now, in the 12 instances where you 5 personally were the discoverer of the flaw, was 6 it you in each of those 12 instances that 7 communicated with the proprietor of the system 8 regarding the flaw? 9 A. Yes. 10 Q. Okay. 11 And how did you do that in each 12 instance? 13 A. If I knew who were the engineers 14 within the -- the -- the proprietor of the 15 system who were responsible for the security 16 aspects of it, I would just call them directly. 17 Q. Got you. 18 A. Although it's not easy to find out 19 who those people are if you don't already have 20 a relationship with the company. 21 Q. Okay. 22 A. And so if you don't, then you have 23 to go in through the front door. 24 Q. Right. 25 A. But -- bug reporting mechanism or 24 1 EDWARD FELTON 2 something like that. 3 Q. Got you. Okay. 4 Now, were any of the 12 instances 5 that you were involved in as the discoverer of 6 the flaw situations where you had some 7 relationship with the company that was the 8 proprietor of the system? 9 A. No, not always. 10 Q. Okay. 11 Was there any where you did have a 12 relationship with the proprietor of the system? 13 A. Yes. 14 Q. How many out of the 12, roughly? 15 A. The majority of them. 16 Q. Okay. 17 And by "relationship" what do -- 18 what do you mean? 19 A. What -- what I mean by that is I 20 had already had some discussions or some 21 dealings with the engineers within those 22 companies who were responsible for the security 23 of the products. 24 Q. Okay. 25 And did that mean that the process 25 1 EDWARD FELTON 2 of your discovering the flaw in the system and 3 communicating it to the proprietor was a role 4 that you played with the company's approval? 5 MR. GARBUS: I would object to 6 the form, but I'll allow the 7 witness to answer it. 8 A. I'm not sure I fully understand 9 what you mean. I didn't need anyone's approval 10 to call these people and talk to them. 11 Q. No -- okay. Fair enough. 12 And I guess what I'm trying to get 13 at, and I apologize for the awkwardness of my 14 question, is you say in the majority of 15 instances you did have some relationship with 16 the proprietor. 17 MR. GARBUS: I think the use of 18 the word "relationship" is vague, 19 and I think you could probably be 20 more specific and get the answers 21 that you want. 22 A. Well, I said what I meant by 23 relationship a minute ago. 24 Q. Right. 25 A. Which was that I had had some 26 1 EDWARD FELTON 2 dealings with the engineers within the company 3 responsible for the security of the product. 4 Q. Okay. 5 A. And that those dealings could just 6 have been a few conversations. 7 Q. Got you. 8 A. Because it -- just to clarify, it 9 does not necessarily mean any kind of formal 10 relationship with the company. 11 Q. Okay. 12 In any of the instances where you 13 discovered the flaw in a security system, was 14 that done with the company's awareness at the 15 time? 16 A. In some of them. 17 Q. Okay. 18 How many of the 12? 19 A. It depends exactly how you 20 interpret "awareness." 21 Q. Okay. 22 A. The companies were -- I'd say in 23 the majority of the cases the companies were 24 aware that we were examining their software -- 25 Q. Okay. 27 1 EDWARD FELTON 2 A. -- in general, or that we were 3 examining software that was in the same general 4 area as theirs. So they might have suspected 5 that we were looking for flaws in their 6 software. 7 Q. In how many instances? 8 A. In the majority of instances -- 9 Q. Okay. 10 A. -- the companies were aware at 11 least that we were out there and we were 12 looking at security vulnerabilities in a 13 particular category of software. 14 Q. And to your knowledge, how were the 15 companies aware of that fact? 16 A. In most of the cases, because -- 17 either because of conversations I had had with 18 the -- the engineers or because we had found 19 previous security flaws in that company's 20 software or because of the reports in press. 21 Q. Okay. Let's take the last two. 22 Because you had previously 23 discovered flaws in that company's security 24 system. 25 A. Yes. 28 1 EDWARD FELTON 2 Q. Not necessarily the same system or 3 the same system? 4 A. There would -- there would have 5 been some cases of each. 6 Q. Okay. 7 And in the instances -- in those 8 instances where you had previously discovered a 9 flaw in one of those companies systems, had 10 you communicated that fact to that company at 11 that time? 12 A. At which time? 13 Q. At the previous time. 14 A. At the time that we discovered the 15 previous flaw? 16 Q. Previous. Correct. 17 A. Let me think, think about the 18 cases. 19 MR. GARBUS: May I hear the 20 last question? 21 (Record read) 22 A. Yes. 23 Q. Okay. 24 And I believe you said as the third 25 prong of your answer a couple of questions ago 29 1 EDWARD FELTON 2 something about because some information 3 concerning a flaw had been published. And I 4 don't want to mischaracterize your testimony. 5 We can go back and reread it. 6 A. I think I said because of reports 7 in the press. 8 Q. Reports in the press. And -- 9 A. Yes. 10 Q. -- can you describe what you mean 11 by "reports in the press"? 12 A. Sure. What I mean is by stories in 13 major newspapers, for example, and Internet 14 media about the existence of flaws and our 15 discovery of them. 16 Q. Okay. 17 Now, in each instance where you 18 were the discoverer of a flaw, did you make an 19 effort to contact the proprietor of the 20 compromised system, if you will, prior to 21 causing the disclosure of any information 22 concerning the weakness to be generally 23 publicized? 24 A. We did make an attempt in every 25 case, but we were not always successful. 30 1 EDWARD FELTON 2 Q. Got you. 3 A. Actually, let me clarify a little 4 bit. 5 Q. Yes, please. 6 A. I can think of at least one 7 instance in which we did report the existence 8 of the vulnerability to the company through a 9 sort of pub -- general public bug reporting 10 mechanism. And nothing happened as a result of 11 that. We were unable to determine who else to 12 talk to inside the company, and later the -- 13 the company reported that -- that they had -- 14 that they essentially don't look through those 15 -- those bug reports. 16 Q. Got you. 17 A. So in other words -- 18 Q. You did -- 19 A. We attempted to reach the right 20 people within the company, but not already 21 having a relationship with the company, we were 22 unable to actually effectively communicate with 23 them. 24 Q. Got you. 25 And just to clarify a general 31 1 EDWARD FELTON 2 public bug reporting mechanism in lay terms, 3 would that be -- 4 A. So that -- 5 Q. -- a facility that the company 6 itself sets up, like a hotline or an e-mail 7 line -- 8 A. That's right, yes. 9 Q. -- that says, gee, if you have 10 discovered any flaws or bugs in our software, 11 please communicate those to us at this address? 12 A. Yes, that's what I meant. 13 Q. Okay. 14 And apart from that instance where 15 your -- which you just described, in all of the 16 other instances that you've been involved in, 17 either the 12 where you were the discoverer or 18 the 5 where you were in some way involved but 19 not the discoverer of the flaw, to the best of 20 your knowledge, was an effort made to 21 communicate with the proprietor of the system 22 concerning the flaw before any information 23 concerning the flaw was generally publicized? 24 A. No, I don't believe that was the 25 case in -- in every -- in every situation. 32 1 EDWARD FELTON 2 Q. Okay. 3 Which ones were the exceptions? 4 A. I can think of a couple in which 5 the information was publicized on the Net, and 6 in at least one case in the news media before 7 -- before, as far as I know, the -- the vendor 8 of the system was -- was contacted. 9 Q. Okay. 10 And so in total, out of the 17 we 11 are talking about, both where you were the 12 discoverer and the ones where you were 13 involved, how many fit into this category? 14 A. Category of -- 15 MR. GARBUS: Category of? 16 Public notice before -- 17 Q. Where some information was 18 disclosed publicly before the proprietor of the 19 system was communicated with about the flaw. 20 A. Out of the roughly 17, perhaps 13 21 or 14 would fall into that category. 22 Q. That is, some disclosure was made 23 publicly before -- 24 A. No, I'm sorry. Some dis -- some -- 25 some disclosure or discussion with the vendor 33 1 EDWARD FELTON 2 occurred before -- 3 Q. Okay. 4 A. -- information became public. 5 Q. So in 13 cases approximately out of 6 the 17 -- 7 A. Approximately. 8 Q. -- the vendor was contacted before 9 any of the public disclosure was made? 10 A. Approximately, yes. 11 Q. Leaving us with approximately four 12 where disclosure publicly was made about the 13 flaw before the vendor was contacted, is that 14 right? 15 A. That's right. 16 Q. Okay. Sorry for the confusion. 17 Thanks for clarifying that. 18 Now, of those four, okay -- and you 19 know which four I'm referring to? 20 A. Yes. 21 Q. Okay. 22 -- how many of those were ones 23 where you were the discoverer of the flaw as 24 opposed to you were just involved but not the 25 discoverer of the flaw? 34 1 EDWARD FELTON 2 A. I believe there was one, one case 3 where we were -- where I was one of the 4 discoverers in which it was -- where -- in 5 which the information became public before the 6 -- 7 Q. Got you. 8 A. -- the vendor was aware of it. 9 MR. GARBUS: Do you want some 10 more water? 11 THE WITNESS: Please. 12 Q. Okay. 13 Let's focus on that one for a few 14 minutes. 15 A. Okay. 16 Q. That's where we are going to spend 17 a little time. 18 How much detail can you give me 19 here today about whose system it was, what the 20 system was, what the flaw was and where it was 21 publicized? 22 A. Sure. So the one that I'm 23 referring to is the one that I referred to 24 before in which we made an attempt to talk to 25 the -- the vendor, but we were unsuccessful in 35 1 EDWARD FELTON 2 doing it. 3 Q. Oh, okay. 4 So let me just have her read back. 5 It's for my sake, not for yours. I'm trying to 6 keep this as accurate as possible. 7 MR. HART: Ms. Reporter, if 8 you'd go back three questions ago, 9 I think, and answer. 10 THE VIDEOGRAPHER: Off the 11 record at 11:00. 12 (Record read) 13 THE VIDEOGRAPHER: Back on the 14 record, 11:05. 15 MR. HART: Thank you. 16 Q. Okay. 17 And before we went off the record, 18 just to make sure we didn't miss a beat here, 19 the one instance where you were involved as the 20 discoverer where information concerning the 21 flaw was publicized before the vendor was 22 effectively contacted was, I believe, the 23 instance you said earlier you had tried to 24 communicate through the general public bug 25 reporting mechanism, but apparently that 36 1 EDWARD FELTON 2 communication didn't work. 3 A. That's right. 4 Q. Okay. 5 Now, of the other three where you 6 weren't the discoverer of the flaw and where 7 something about the flaw was publicized prior 8 to the vendor being contacted, can you just 9 tell me generally the circumstances in which 10 each of those went down? 11 A. Well, the -- I don't recall the 12 specific details, although what I -- what I 13 recall is that -- what I recall is that the 14 people who discovered those flaws did talk 15 about them publicly before they contacted the 16 vendors. I don't -- I don't recall the 17 specific circumstances or why they did that. 18 Q. Okay. 19 Do you regard that as inappropriate 20 in terms of ethical standards or any other 21 practice in your experience with respect to 22 security, testing security or discovering 23 flaws? 24 A. I think it de -- 25 MR. GARBUS: I was going to say 37 1 EDWARD FELTON 2 I object to the form of the 3 question. I also object to the 4 substance. Mr. Felten clearly will 5 answer it. 6 MR. HART: Okay. 7 A. I think it depends on the 8 circumstances really. I don't think there is a 9 general ethical requirement to -- to discuss 10 these things with the vendor before discussing 11 them with anyone else. 12 Q. Is there a general practice that 13 that be done, even if there is not a 14 requirement in other words? 15 MR. GARBUS: I would object to 16 that. I'll allow Mr. Felten to 17 answer it. 18 A. I think there -- there are 19 different schools of thought about what is the 20 best way to proceed in those situations. And 21 -- well, I want to make clear that what I'm 22 talking about here is not whether you discuss 23 these things publicly, but just the timing. 24 Whether one discusses -- I think in general 25 it's helpful to discuss these sorts of issues 38 1 EDWARD FELTON 2 with what -- to discuss them widely. And we 3 are just talking about whether -- who you call 4 first essentially, not whether you call anyone 5 in particular. 6 Q. But is it your testimony that as a 7 matter of practice, professionally speaking -- 8 A. I think -- 9 Q. -- that -- and I don't want to -- 10 maybe I'll should reframe the question, because 11 I don't want to combine it with a lot of double 12 negatives. 13 As a matter of practice, is it the 14 norm to contact the vendor first? 15 MR. GARBUS: Objection. 16 THE WITNESS: I'm not sure 17 there is a norm that's -- that is 18 widely followed. 19 Q. Let me ask you this, because I 20 believe you said, correct me if I'm wrong, that 21 out of the 12 where you were the discoverer, 22 that in every one, say one, the vendor was 23 contacted. And in the one -- for the one 24 exception, you had indeed contacted the vendor 25 through the general reporting bug mechanism but 39 1 EDWARD FELTON 2 that didn't take, if you will? 3 A. Yes, that's right. 4 Q. Okay. 5 A. And the reason we did that -- 6 Q. We or you? 7 A. Me in particular. I say "we" 8 because I'm referring to a research group of 9 which I'm the head. 10 Q. Okay. 11 A. And so if the -- when the contact 12 would occur I would be the one who did it. 13 Q. Okay. 14 A. That would sort of be on behalf of 15 the group. 16 Q. Okay. Got you. 17 A. And the reason that -- the reason 18 that we have typically done it in -- in that 19 way, the reason we've typically contacted the 20 vendor first is that that seems to cause the 21 vendor to -- to be more careful and thoughtful 22 when they issue their first pub -- public 23 reaction to the -- to the discovery of the 24 flaw. It helps -- I've found it helps to give 25 them some time to think about it before they 40 1 EDWARD FELTON 2 have to answer questions from the reporters or 3 from the public about the flaw. 4 Q. Okay. 5 A. And that's -- that's the main 6 reason why -- why -- why we have typically 7 talked to the vendor first. 8 Q. Does it also give the vendor an 9 opportunity to fix, ameliorate or at least put 10 a Band-Aid on the flaw, if you will? 11 A. It lets them start the process of 12 fixing the flaw -- 13 Q. Okay. 14 A. -- but it is not our practice of 15 waiting until they ship to fix. 16 Q. I understand. 17 But is part of your purpose in 18 contacting the vendor before making disclosure 19 generally to give the vendor some kind of head 20 start in attempting to make a fix? 21 A. That's part of it. To make a head 22 start, to have a little bit of time to think 23 about what their approach is going to be to 24 fixing it, and so on. 25 Q. Okay. 41 1 EDWARD FELTON 2 A. And we would typically -- 3 Q. Yeah. Okay. 4 A. So we would typically give sort of 5 48 to 72 hours sort of head start to the 6 vendor, talk to them, and then after a delay of 7 a couple of days discuss the -- the 8 vulnerability publicly. 9 Q. When you say "discuss the 10 vulnerability publicly," in each of the 12 11 instances where you were the discoverer, how 12 did you wind up discussing the vulnerability 13 publicly? And if you can answer generally, 14 that's fine. If you have to go through -- 15 A. Generally in a number of different 16 ways. 17 Q. Go ahead. 18 A. We would put something on our Web 19 site discussing the -- the vulnerability. We 20 would typically send a message to the Risks 21 Digest, which is a -- an online forum for 22 discussing -- for discussing in general the 23 risks and vulnerabilities relating to 24 computerized systems, and send it to other 25 similar places. 42 1 EDWARD FELTON 2 We would talk to any reporters, 3 members of the press who -- who had seen those 4 announcements. And there were, into addition, 5 some people in the press who specifically 6 requested that we inform them when we found 7 something, and we would inform them. And then 8 that would -- that would be the immediate 9 steps. And then we would later pub -- publish 10 papers describing what we had found and what we 11 could learn from it. 12 Q. Okay. 13 A. But, of course, the academic cycle 14 is a bit longer. 15 Q. I understand. 16 A. So those would become available to 17 the public later. 18 Q. Got you. 19 And by "public," are you referring 20 to the academic, scientific and scholarly 21 community or the general public or both? 22 A. Both. 23 Q. Okay. 24 Now, in this first wave of 25 disclosure, if you will, before scholarly 43 1 EDWARD FELTON 2 publications are issued, can you generally 3 describe the content of the disclosure that was 4 made in each instance? 5 A. Well, we would typically describe 6 it in different levels of technical detail 7 because -- because we -- there are different 8 audiences of people who are interested. The 9 general public doesn't necessarily want to know 10 all the bits and bytes, but there's a large 11 community of -- of computer experts who do. 12 And so we would -- we might write two or three 13 different descriptions of -- ranging from 14 sort of what the general public -- what we 15 thought the general public would want to know, 16 what's the general nature of the vulnerability, 17 how can they protect themselves, and so on, and 18 ranging up to more technical descriptions for 19 people who were really interested in the -- in 20 the details and wanted to understand in more 21 detail how -- what the vulnerability was. 22 Q. Okay. 23 And would those more technical 24 descriptions include algorithm as part of the 25 disclosure? 44 1 EDWARD FELTON 2 A. In some cases. 3 Q. Okay. 4 Would it include code? 5 A. In some cases there -- there was 6 code in there. 7 Q. Which cases? We are talking about 8 the 12 now? 9 A. We are talking about, yes, the ones 10 in which we -- in which I was involved as a 11 discoverer. 12 Q. Okay. How many -- I'm sorry. 13 How many of the 12 involved the 14 publication of some form of code in connection 15 with the disclosure of the weakness? 16 A. And here we're talking about just 17 the immediate disclosure that occurs, not what 18 we do -- 19 Q. Scholarly later. 20 A. -- later. Right. 21 The later papers are not only for 22 scholars, but also intended in some cases for 23 -- more for members of the public. 24 Q. Okay. Fair enough. I didn't mean 25 to -- sorry. 45 1 EDWARD FELTON 2 A. Right. I mean scholarly articles 3 in the usual scholarly places. Also, the 4 magazines that are more widely read, 5 information on our Web site which gets accessed 6 by a lot of people with different levels of 7 expertise. 8 But to return back to the 9 clarification to the -- to the initial question 10 -- 11 Q. Right. 12 A. -- in the initial disclosure -- I'm 13 sorry, I've lost the question now. You were 14 asking what was -- 15 Q. I was trying to get at how much 16 detail was disclosed, and you said well, that 17 varied depending on the audience. 18 A. Yes. 19 Q. And I think you said in some 20 instances it was more technical. And then we 21 were focusing on the more technical 22 disclosures, and I asked you whether in any 23 instances that included algorithms, and I 24 believe you said yes. And then I asked you if 25 in any of those instances it included code in 46 1 EDWARD FELTON 2 one form or another, and I believe you said 3 yes. And I think the question we're up to now 4 was out of those 12, which instances of the 12 5 included code in the initial wave of 6 disclosure? 7 A. I could only guess. 8 Q. Well, I don't want you to guess, 9 but if you could approximate that would be 10 great. 11 A. Out of 12, maybe 3 -- 12 Q. Okay. 13 A. -- would be an estimate. 14 Q. Okay. 15 And I'm going to work with that 16 three number for now unless you -- 17 A. Right, with the understanding it's 18 an approximation. 19 Q. I understand. And I -- again, I'm 20 not trying to box you in. 21 A. Sure. 22 Q. We need to organize this in some 23 way, so I'm going to work with those three 24 which involved in the initial wave of 25 disclosure, if you will, some form of code in 47 1 EDWARD FELTON 2 one way or another. Okay? 3 A. Okay. 4 Q. Good. 5 Can you recall whether that 6 involved the inclusion of source code or object 7 code or both? 8 A. I think it would have been source 9 code in the initial -- in the initial 10 disclosure. 11 Q. Okay. 12 A. And I'm talking here again only 13 about the initial disclosure. 14 Q. I understand. 15 And was there a reason why source 16 code was used rather than object code in the 17 initial disclosure? 18 A. Yes. 19 Q. Why was that? 20 A. I can think of two reasons. Number 21 one is that the -- the soft -- the flaws that 22 we were looking at generally were ones that 23 applied across different platforms, different 24 types of computers, different operating 25 systems. And so with object code you would 48 1 EDWARD FELTON 2 have had to make -- we would have had to make a 3 different version for each platform. 4 Q. Okay. 5 A. And in the initial disclosure, one 6 of the things we want to do is get the 7 information out there quickly. 8 Q. Right. 9 A. And so it's more expedient in that 10 situation to -- to distribute source code. 11 Q. That's reason one, correct? 12 A. Right. 13 Q. What was reason number two? 14 A. Reason two is with -- is that 15 source code is generally easier for people to 16 read. And again, in the sort of the quickie 17 initial disclosure -- 18 Q. Got you. 19 A. -- that's -- we would rather do 20 less work than more in order to get it out 21 quickly. So if we had to do one thing, that's 22 what we would do. 23 Q. I understand. 24 And with respect to the inclusion 25 of source code in these initial public 49 1 EDWARD FELTON 2 disclosures, was that annotated code with 3 comment or was it -- and you probably have a 4 more scientific term for this. I would say 5 unexpurgated code. 6 A. It could be either. 7 Q. What was it, in fact, in the three 8 instances? 9 A. I'm not sure which one it would 10 have been. 11 Q. Okay. 12 A. Generally, we would have taken what 13 we had -- 14 Q. Got you. 15 A. -- what we would have developed 16 ourselves in our own internal experimentation, 17 and if that had comments in it, then the 18 comments would probably be there when we 19 disclosed it. If it didn't when we were 20 working with it internally, then probably it 21 would not. 22 Q. But you can't remember as you sit 23 here today? 24 A. I can't remember the specific cases 25 what -- what the situation was. 50 1 EDWARD FELTON 2 Q. Do you have data within your 3 possession or control in some form that would 4 give you an answer to that if you were able to 5 look? 6 A. I might be able to. We -- we may 7 have access to some of the initial disclosures. 8 I don't think we have them all. 9 Q. And when you say we might have 10 access, what do you mean? 11 A. What I mean is that if things were 12 sent in e-mail there might be -- there might be 13 -- I might still have copies of some of the 14 e-mail, for example. 15 Q. Okay. 16 And again, we are not -- just to be 17 clear, we are not talking about the disclosure 18 of the vendor, we are talking about the initial 19 public disclosure? 20 A. Right, the initial public 21 disclosure, that's right. 22 Q. Okay. 23 Now -- and those e-mails would be 24 resident somewhere on a computer somewhere at 25 Princeton somewhere within your office area or 51 1 EDWARD FELTON 2 your lab? 3 A. If I have them, yes. 4 Q. Yeah. I understand. Okay. 5 Now, in the three instances that 6 we're talking about, to the best of your 7 recollection was -- what was the code that was 8 part of the initial public disclosure; was it 9 code of the system that had the flaw, was it 10 code of the thing that enabled you to detect 11 the flaw or was it something else? 12 A. It would not have been code of the 13 flawed system, because we did not have 14 permission. In most cases we did not have 15 source code for the flawed system, and in cases 16 where we did, we did not have permission to 17 publish it. 18 Q. Okay. 19 A. That is, you know, we had received 20 it under some kind of confidentiality agreement 21 or under some kind of license that did not 22 allow us to republish it. So it would have 23 been code -- it would have had to have been 24 code related to the exploitation of the 25 vulnerability or demonstration of it. 52 1 EDWARD FELTON 2 MR. HART: Okay. Can you just 3 read the last answer back? And, 4 again it's my brain, not your 5 testimony. 6 (Record read) 7 Q. Okay. 8 So again, focusing on the three 9 instances approximately where you were the 10 discoverer of the flaw, where the initial wave 11 of public disclosure included code in one form 12 or another -- 13 A. Mm-hmm. 14 Q. -- it's your testimony that you did 15 not disclose the code of the system because you 16 got access to the system code or the system 17 itself by either confidentiality agreement or 18 license; is that -- 19 A. That's right, yes. 20 Q. Okay. 21 A. In -- some companies have policies 22 in which they will provide source code for 23 products to any academic researcher under some 24 kind of confidentiality agreement, and under 25 some cases we had that -- that kind of 53 1 EDWARD FELTON 2 arrangement. So I don't -- I didn't mean to 3 imply that it was a special arrangement made 4 between the vendor and us necessarily. 5 Q. Got you. 6 A. It may have been a sort of blanket 7 one that they make available to everyone in the 8 academic community. 9 Q. Fair enough. 10 But just to be clear, with respect 11 to the three instances where the initial public 12 disclosure involved the publication of code in 13 one form or another, in each of those three 14 instances you had gotten access to the system 15 or to the system code through some kind of 16 license or confidentiality agreement? 17 A. To the source code. 18 Q. Okay. 19 A. Via -- right. 20 Q. Okay. 21 A. Either I or my boss had signed a 22 piece of paper promising not to publish that 23 code. 24 Q. Got you. Okay. 25 And you said that was disclosed, 54 1 EDWARD FELTON 2 therefore, in the initial wave of public 3 disclosure as not the source code of the system 4 but rather what? 5 A. Source code that was needed in one 6 way or another to discuss or demonstrate the -- 7 the vulnerability that we -- that we were 8 disclosing. 9 Q. Okay. 10 And can you tell me as you sit here 11 today with respect to the three -- or 12 approximately three instances that we're 13 talking about, what in each of those three 14 instances was included in the dissemination, 15 how much code, what did it reveal? 16 A. No, I can't tell you the specifics 17 as I sit here today. 18 Q. Okay. 19 Can you tell me generalities? 20 A. Well, in general we would disclose 21 -- 22 MR. GARBUS: I think he's 23 answered that already. 24 A. -- whatever we thought was 25 necessary in order to -- in order to 55 1 EDWARD FELTON 2 communicate the message that we were trying to 3 communicate, the nature of the vulnerability. 4 Q. Got you. 5 A. The fact that the -- what the risk 6 was to -- to members of the public, what the 7 cause of the vulnerability might have been and 8 so on. 9 Q. Okay. I'm sorry. I didn't mean to 10 -- 11 A. That's all. 12 Q. Cool. 13 When you say to alert the public in 14 each of these three instances, what was the 15 concern for public safety or security? 16 A. Well, there are several aspects to 17 that. There are several reasons to alert the 18 public in this sort of situation. 19 One is that members of the public 20 were using software systems which made them 21 vulnerable, and we thought they had a right to 22 know that, to understand what the nature of the 23 vulnerability was, what the conse -- possible 24 consequences were. 25 Also, we thought that the public 56 1 EDWARD FELTON 2 had a -- a need to sort of understand the track 3 record of the various vendors over time. 4 Q. Okay. 5 A. And understand that. 6 We felt the people who were 7 thinking about buying into a particular 8 technology in one way or another, either by 9 using it, by partnering with the vendor, by -- 10 or whatever way, had a right to understand what 11 they were getting. And we also believed that 12 discussion of these sorts of vulnerabilities 13 leads to progress in understanding how to build 14 better systems. 15 Q. Okay. 16 And all of these considerations 17 that you just described in your last answer 18 were applicable in the initial public 19 disclosure of the flaw in the three instances 20 where we're talking about where code was 21 present in one form -- 22 A. That's why we -- the reasons I gave 23 you were why we communicate with the public 24 about these things -- 25 Q. Okay. 57 1 EDWARD FELTON 2 A. -- and whatever disclosures we make 3 in general are motivated by those -- by those 4 goals. So without going into specifics 5 because, as I said, I don't remember the 6 specific circumstances in detail -- 7 Q. Right. 8 A. -- we -- in each of these 9 situations we would have done what we thought 10 were best to achieve those goals. 11 Q. Got you. Okay. 12 Now, in each of the three instances 13 where there was an initial public disclosure 14 that included some code in one form or another, 15 okay, did any of those three involve the making 16 available to the general public of some kind of 17 executable utility that would enable people to 18 use that utility to take advantage of the flaw? 19 A. By "executable utility," you mean 20 object code -- 21 Q. Well -- 22 A. -- in particular or what? 23 Q. Yeah, I guess. And obviously you 24 have a little bit more expertise in that area 25 than I do, so I apologize for my clumsiness. 58 1 EDWARD FELTON 2 But when I say an "executable 3 utility," what I mean is software that is 4 operable to do a machine function or a process. 5 And specifically in this context, despite my 6 question, I'm talking about software that's 7 operable on a machine to actually take 8 advantage of the flaw that was discovered. 9 MR. GARBUS: Can I have the 10 question read? 11 (Record read) 12 MR. GARBUS: I object to the 13 question. I think the witness has 14 already answered it. 15 MR. HART: Okay. I don't want 16 you to testify, Marty. I'd like an 17 answer to the question. 18 MR. GARBUS: Okay, but -- 19 MR. HART: Marty, if you have 20 an objection, state the objection 21 briefly. I do not want you 22 coaching the witness. 23 MR. GARBUS: I don't care to be 24 lectured. 25 MR. HART: I'm not lecturing. 59 1 EDWARD FELTON 2 MR. GARBUS: I'm objecting to 3 the question on the grounds that 4 the witness has already answered 5 the question. 6 MR. HART: He has not. Are you 7 instructing him? 8 MR. GARBUS: I have no 9 objection to allowing the witness 10 to answer the question. I am not, 11 in any objection that I make, going 12 to tell this witness not to answer 13 any question. 14 MR. HART: Good. So can I have 15 an answer? 16 MR. GARBUS: I'm entitled to 17 state the grounds for my objection, 18 and I would appreciate it if you 19 would not interrupt me. Go ahead, 20 Mr. Felten. 21 MR. HART: Thank you, 22 Mr. Garbus. 23 A. Okay. There's a distinction here 24 between exploiting the vulnerability and 25 demonstrating it -- 60 1 EDWARD FELTON 2 Q. Okay. 3 A. -- okay, which I want to draw. 4 Q. Okay. 5 A. And by "demonstrating" what I mean 6 is showing that -- showing that the flaw or the 7 vulnerability exists by actually doing 8 something which -- which the designers of the 9 system say is supposed to be impossible. 10 Q. Mm-hmm. 11 A. And by "exploiting" I mean using 12 that capability of violating the designer's 13 rules to actually do something which is illegal 14 or damaging. 15 Q. Got you. 16 A. So we would not distribute code 17 which -- which breaks the law, say, which 18 allows you to break into someone else's 19 computer, but we would -- but we would, if -- 20 in certain circumstances distribute code which 21 demonstrated that the rules could be violated. 22 Q. Okay. 23 And appreciating the distinction 24 that you just made -- 25 A. Yes. 61 1 EDWARD FELTON 2 Q. -- how do you -- how did you do 3 that in actuality? 4 A. So, let me give an example, okay? 5 Suppose that -- suppose that we had found a 6 flaw which let someone construct a Web page 7 such that when someone views the Web page the 8 Web page can sort of take over their Web 9 browser and do whatever the constructor of the 10 page wants it to do, okay? So you can 11 demonstrate that by making a Web page which, 12 say -- by making a Web page which demonstrates 13 that it can create some harmless file on the 14 person's machine. 15 Q. Right. 16 A. As opposed to something which 17 actually seizes control of their machine. 18 Q. Okay. Let's -- that's an 19 instructive example. 20 A. So it steps outside the rules of 21 what the browser's security system says is 22 supposed to be possible, and it does something 23 which demonstrates that those rules are not 24 enforced. 25 (Record read) 62 1 EDWARD FELTON 2 Q. I just want to concretize what you 3 said in the context of the specific ones you've 4 -- the situations you were involved in. And 5 you gave an instructive example. 6 With respect to the three where 7 some code was included in the initial public 8 disclosure of the weakness of the system, was 9 there public dissemination of computer code 10 that was functional code to enable someone to 11 defeat the system or to take advantage of the 12 flaw? 13 A. Well, whatever code we would have 14 distributed would be functional code in the 15 sense that I'm taking from your previous 16 explanations and the questions, that is, code 17 which actually describes or specifies behavior. 18 Q. Right. 19 A. That's what code is designed to do, 20 to describe behavior. 21 Q. Got you. 22 A. And -- I'm sorry. Could I repaet the 23 question back then? 24 Q. Well, let me -- let me ask it a 25 different way, because I think we're getting 63 1 EDWARD FELTON 2 hung up unnecessarily here. 3 MR. GARBUS: That was the basis 4 of my previous objection, that you 5 were not understanding what the 6 witness was saying. And that's why 7 -- 8 MR. HART: Well, I think I am, 9 Marty. 10 MR. GARBUS: -- and that's why 11 -- 12 MR. HART: I don't need to be 13 lectured either. So if you have an 14 objection, make it. Otherwise, 15 let's proceed. 16 MR. GARBUS: And that's why 17 there is confusion. 18 MR. HART: I don't think there 19 was any confusion, Marty. If you 20 have an objection, make it. 21 Otherwise, let's proceed. 22 Q. You said all code is functional to 23 some degree. 24 A. Yes. 25 Q. Okay. 64 1 EDWARD FELTON 2 A. In the sense that it describes 3 behavior, it has that -- it has that aspect. 4 It's functional in the sense that it describes 5 a particular thing the computer could do. 6 Q. Okay. 7 What I'm trying to get at here in 8 the three instances that we've been focused on 9 for the last 15 or 20 minutes is whether as 10 part of the initial public disclosure you or 11 the people you worked with disseminated 12 software that was immediately operable in 13 someone else's computer to take advantage of 14 the flaw or the defect in the system. 15 MR. GARBUS: Object to the form 16 of the question. 17 A. Not immediately operable in the 18 sense that it was not object code. 19 Q. Okay. 20 A. And again, I don't -- I don't 21 recall the specifics of these situations, but 22 in general as I said, our policy was to include 23 whatever we thought needed to be included to -- 24 to make the points to -- to satisfy the goals 25 that -- that we were trying to satisfy in 65 1 EDWARD FELTON 2 disclosing the -- and discussing the 3 vulnerability. And so to the extent that that 4 required us to -- to disclose code, then we 5 did. 6 Q. Okay. 7 But in disclosing code, were you 8 cognizant of trying to avoid providing 9 something to people that could be used to take 10 advantage of the flaw? 11 A. That was -- 12 MR. GARBUS: I object to the 13 question. It's already been asked 14 and answered. 15 A. That was -- that was one of the 16 things we took into account in deciding what to 17 disclose or what to discuss publicly. 18 Q. And we've been making a distinction 19 so far between what I think was the initial 20 public disclosure -- 21 A. Yes. 22 Q. -- versus what was later disclosed? 23 A. Yes. 24 Q. Okay. 25 Now I'd like to go to the -- what 66 1 EDWARD FELTON 2 was later disclosed -- 3 A. Okay. 4 Q. -- and essentially ask you the same 5 question, which is in terms of disseminating to 6 the public code in any form in these later 7 disclosures, whether you made available to the 8 general public an executable utility or some 9 other piece of software that enabled people to 10 take advantage of the flaw as opposed to merely 11 illustrating the flaw? 12 A. In -- in general, the later 13 discussions were in more detail. They had more 14 technical details in them, they were lengthier, 15 and we had more time to prepare them. So there 16 would be more detail there than was in the 17 initial -- initial discussions. 18 Q. Okay. 19 A. Also, given that time would usually 20 pass before the later, say, academic 21 publications or magazine articles would become 22 available, there would be perhaps new versions 23 of the software, of the flawed software out 24 there, and that would also factor into our 25 calculations. 67 1 EDWARD FELTON 2 Q. Got you. 3 A. So, in general, there would have 4 been more disclosure of details of 5 vulnerability -- 6 Q. Okay. 7 A. -- of vulnerabilities in the later 8 discussion. 9 MR. GARBUS: Can we take a 10 bathroom break after your next 11 question? 12 MR. HART: After a couple of 13 next questions, absolutely. Let me 14 just kind of try and wrap up this 15 area of inquiry. I appreciate your 16 candor. 17 Q. Is it fair to say that with respect 18 to any of the situations where you were the 19 discoverer of system flaw that at no time, 20 whether in the initial public disclosure or in 21 any subsequent disclosure, did you make 22 available an object code utility or an 23 executable computer program that enabled people 24 to take advantage of the flaw? 25 A. We -- in the instances that we were 68 1 EDWARD FELTON 2 in, we were able to show how to demonstrate the 3 flaw without -- without exploiting it to do 4 damage. 5 Q. Got you. 6 A. There is no doubt, though, that 7 discussing how to demonstrate the flaw provides 8 information that someone could use in a harmful 9 way. 10 Q. Got you. 11 But do you see in your mind, 12 professionally speaking, a difference between 13 providing information describing a flaw and 14 providing basically a tool that enables people 15 to take advantage of the flaw? 16 A. I think there is a difference 17 between those things. It depends on the 18 circumstances whether it's possible, for 19 example, to demonstrate a flaw without also 20 providing a way to -- to exploit it. 21 Q. Got you. 22 A. A demonstration plus some other 23 steps may be an exploitation. 24 Q. Got you. 25 But in all of the -- 69 1 EDWARD FELTON 2 MR. HART: Please. 3 Q. But in all of the 12 instances 4 where you were the discoverer of the flaw and 5 you were involved in one way or another in the 6 ultimate public disclosure of that flaw, in no 7 instance did you find it necessary to provide 8 people with the tool to take advantage of the 9 flaw in order to describe it, discuss it, 10 illustrate it or analyze it, right? 11 MR. GARBUS: I'll object to it. 12 That's not what the witness has 13 testified to. That's an 14 oversimplification. 15 A. We did not provide -- we never 16 provided a tool which let someone -- which gave 17 someone all of the steps of breaking into 18 someone's computer and doing damage. 19 Q. And you -- you deliberately avoided 20 doing that; isn't that true? 21 A. That's correct. 22 Q. Thank you. 23 A. We did provide the information that 24 -- that we thought the people -- the public 25 needed in order to understand the situation, in 70 1 EDWARD FELTON 2 order to further research. And that did 3 include code which demonstrated the flaw, which 4 would mean it included necessarily one or some 5 of the steps that someone would need to do 6 damage. 7 Q. Got you. Thanks. 8 MR. GARBUS: Can we take our 9 break? 10 MR. HART: We are going to take 11 our break now. I thank you. 12 THE VIDEOGRAPHER: Off the 13 record, 11:43. 14 (Brief recess taken) 15 THE VIDEOGRAPHER: Back on the 16 record, 11:59. 17 MR. HART: Everybody ready? 18 MR. GARBUS: Yes. 19 MR. HART: Do you want to put 20 your mike back on there, Marty? 21 MR. GARBUS: I'm not doing very 22 much talking, so I'm sure it's not 23 necessary. Go ahead. 24 MR. HART: Promises, promises. 25 Q. Have you ever had occasion to 71 1 EDWARD FELTON 2 examine what's referred to as DeCSS? 3 A. Yes. 4 Q. When did you first do that? 5 A. I don't recall precisely. I would 6 estimate maybe six months ago. 7 Q. Okay. 8 I'm -- six months ago means roughly 9 when? 10 A. Means either early this year or 11 perhaps the end of 1999. 12 Q. Okay. 13 And was this prior to your lunch 14 meeting with Mr. Garbus and Mr. Appel? 15 A. Yes, it was well before that. 16 Q. Okay. 17 And where did you get access to 18 DeCSS in order to examine it? 19 A. I did a Web search and found a site 20 that had it. 21 Q. Okay. 22 Do you recall which site had it? 23 A. No. 24 Q. What form was it in? 25 A. What I got was in the form of a zip 72 1 EDWARD FELTON 2 file that had source code and object code for 3 DeCSS along with a couple other related things. 4 There was something called CSSAuth and there 5 was something called LIVID. 6 Q. LIVID? 7 A. LIVID, L-I-V-I-D. 8 Q. And did you examine CSSAuth? 9 A. I believe I did. 10 Q. And what is it? 11 A. I don't recall now. 12 Q. Did you examine LIVID? 13 A. I don't remember whether I did or 14 not. 15 Q. Do you recall what LIVID was? 16 A. I'm not sure what -- what it is. 17 There's something in -- something in the back 18 of my mind saying it might be a Linux video 19 player, but I'm not sure of that. 20 Q. Okay. 21 So you downloaded the files you 22 just mentioned from a Web site? 23 A. A Web site which I found by Web 24 search. 25 Q. Got it. 73 1 EDWARD FELTON 2 Do you still have those downloads 3 on your computer today? 4 A. Yes. 5 Q. Okay. 6 What have you done with them? 7 A. I have -- I've read the material -- 8 with respect to DeCSS I've read the -- there 9 was -- there was a file in the distribution 10 which was a readme or some sort of descriptive 11 -- short descriptive file saying what was 12 there. I have read the source code, I ran the 13 object code. It didn't do anything on my 14 computer because I don't have a DVD drive. 15 With respect to CSSAuth, I believe 16 that I read descriptive files and source code, 17 as well. 18 Q. Okay. 19 When you say descriptive files in 20 source code? 21 A. And source code. 22 Q. Oh, and source code. Okay. 23 A. So a readme file and whatever -- 24 whatever it is that was there. 25 Q. So that's what I want to come back 74 1 EDWARD FELTON 2 to. You said in the early part of your answer 3 there was a readme file. That was in English? 4 A. That's right. Just saying -- what 5 I recall is it said something like here's a 6 list of the files that are here and this is 7 what each one is -- 8 Q. Got you. 9 A. -- or some such thing. 10 Q. Okay. 11 And what was your purpose in 12 looking at the source code and in running the 13 executable utility, if you will? 14 A. First with respect to looking at 15 the source code, I had read and heard about CSS 16 and the flaws that had been found in it, and I 17 wanted to find out more about that. And so one 18 of the things I wanted to do, one of things 19 that made sense for me to do was to get the 20 code and understand what it did. I also looked 21 at that code in conjunction with Frank 22 Stephenson's paper at one point -- 23 Q. Okay. 24 A. -- again, to understand what this 25 thing did, to understand how CSS worked, how 75 1 EDWARD FELTON 2 the corresponding decryption process worked, 3 and to see for myself what the flaws were that 4 were there and that were described in 5 Stephenson's paper. 6 Q. Okay. 7 And what was your purpose in 8 running the utility? 9 A. I wanted to see whether I could 10 tell what it did on a machine that did not have 11 a -- a DVD drive. And it turns out, as far as 12 I can tell it doesn't do anything if you don't 13 -- it didn't do anything on my machine as far 14 as I can tell. 15 MR. HART: Let the record 16 reflect we have an interruption. 17 (Brief interruption) 18 MR. HART: Let's read the last 19 answer back. I was distracted. 20 I'm easily distracted as Marty 21 knows. 22 (Record read) 23 Q. And was there any value, then, in 24 running DeCSS on your machine as far you were 25 concerned? 76 1 EDWARD FELTON 2 A. It turned out that there was no 3 value to me in the -- in the very brief 4 experiment I did. Had I had a DVD drive, I -- 5 there would have been value because this would 6 have provided a demonstration of that -- of the 7 -- of the flaw in -- in DeCSS. 8 Q. Got you. 9 A. That's the kind of demonstration 10 that I was talking about before when I talked 11 about code which demonstrates that a flaw 12 exists. It would have enabled me to go take 13 some files off a DVD and verify that they were 14 actually the content that was originally on the 15 DVD. So I could have been able to verify for 16 myself without understanding a lot of theory 17 that what people were saying about the 18 weaknesses in CSS was right. 19 Q. Okay. 20 So what is it, to your 21 understanding, that DeCSS does? 22 A. My understanding of what it does is 23 that it -- it allows you to take files which 24 are stored on a DVD disc and copy them onto, 25 say, the hard drive of your computer. 77 1 EDWARD FELTON 2 Q. And in doing that, does it decrypt 3 CSS? 4 A. Yes, it does -- it does perform 5 decryption as part of that operation. 6 Q. Okay. 7 A. Of course, decryption is necessary 8 in order to get the files onto the -- onto the 9 hard drive in a form where they're -- they're 10 usable for many of the purposes that I might 11 want to put them to if I were the owner of a 12 DVD. 13 Q. Do you own a DVD player? 14 A. No, I don't. 15 Q. Do you own a VHS type VCR? 16 A. Yes. 17 Q. Okay. 18 How many computers do you have or 19 have access to in your ordinary routine? 20 A. Let me think. I have -- in my 21 office at work I have one computer. There is 22 also a lab that has maybe 10 computers in it. 23 At home -- this is embarrassing -- I think five 24 computers. 25 MR. GARBUS: All for your 78 1 EDWARD FELTON 2 child. 3 Q. Are any of those computers 4 operating using the Linux operating system? 5 A. Yes. 6 Q. Which ones? 7 A. One of the machines in my home runs 8 Linux and some of the -- some of the 10 in my 9 lab run Linux, maybe three or four would be my 10 -- would be my estimate. 11 Q. Okay. 12 And do you also have Windows-based 13 operating system on any of your home computers? 14 A. Yes. 15 Q. Okay. 16 And what about in the lab? 17 A. Yes, there are some Windows 18 machines in the lab. 19 Q. And what about the computer that's 20 in your office, what operating system does that 21 use? 22 A. Windows. 23 Q. It's a Windows system. Okay. 24 And what kind of Internet 25 connection do you have, if any, with respect to 79 1 EDWARD FELTON 2 your office computer? 3 A. The office computer is connected to 4 our departmental network -- 5 Q. Okay. 6 A. -- which inside the department is 7 100 megabits per second. 8 Q. Okay. 9 And what about with respect to the 10 five computers you have at home, what kind of 11 Internet connection or connections do you have 12 with respect to any of them? 13 A. The connection from my home is a 14 DSL connection which goes to the computer 15 science department at Princeton. 16 Q. Okay. 17 A. And that -- so that between my home 18 and Princeton I get about perhaps 2 megabits 19 per second. 20 Q. Okay. 21 Do you have any other Internet 22 connection at home? 23 A. No. And it's usual -- I should 24 say, all of those -- the bandwidth I'm quoting 25 are internal. That's from one place in the 80 1 EDWARD FELTON 2 building to another place in the building. 3 That's not the bandwidth to arbitrary places on 4 the Net. 5 Q. But the bandwidth that you're 6 talking about which is what, somewhere between 7 2 megabytes a second to 100 megabytes per 8 second, depending on whether we're talking 9 about the DSL at home or the one in your 10 office? 11 A. Megabits per second. 12 Q. I'm sorry. Excuse me. I 13 apologize. 14 Those allow you to connect through 15 a network to Princeton University? 16 A. Just within the computer science 17 department at those rates. 18 Q. I see. 19 And what about the rest of the 20 university? 21 A. I don't know exactly what kind of 22 connectivity we have to the rest of the 23 university. I know there is at least one link 24 between our department's network and the 25 university's backbone, I guess. But that, of 81 1 EDWARD FELTON 2 course, is shared with everyone else in the 3 department. 4 Q. All right. 5 You're saying you have no specific 6 knowledge of the network -- 7 A. But I don't know specifically how 8 fast that is. 9 Q. Okay. I'm sorry. Let me finish 10 the question and then you can give the answer 11 -- 12 A. Okay. 13 Q. -- just to make the record clear. 14 You have no specific knowledge 15 concerning the network at Princeton that's 16 available to people outside of the computer 17 department, for example, like students, and the 18 connectivity and the speeds and the bandwidth 19 of that facility? 20 A. I think I know generally what's 21 available to people within their own little 22 area of the network, but I don't understand how 23 the various local networks -- I don't 24 understand in detail how the various local 25 networks are connected together. 82 1 EDWARD FELTON 2 Q. Okay. 3 And among the local networks that 4 you have some understanding of, would that 5 include networks that students have access to 6 from dorm rooms or other? 7 A. I'm generally familiar with dorm 8 room networks. 9 Q. And what's the bandwidth of those, 10 to your knowledge? 11 A. A typical bandwidth would be 10 12 megabits per second on a shared link. 13 Q. As opposed to a switched link? 14 A. That's correct. 15 Q. Now, are the various dorm rooms set 16 up so that each floor is a shared link unto 17 itself, and then each floor is separately 18 switched? 19 A. I don't know. 20 Q. You don't know the overall network 21 configuration? 22 A. I don't know those details, no. 23 Q. Okay. That's fine. Fine. 24 Do you have any knowledge of video 25 compression technologies? 83 1 EDWARD FELTON 2 A. Only in a very general way. 3 Q. Generally, what do you know if you 4 can sum it up? 5 A. Well, I know that it's -- it's 6 possible to compress video and to get some -- 7 some -- a modest -- relatively modest amount of 8 compression out of them. I know that video 9 compression technologies are widely used 10 because video files are so big. 11 Q. Does that sum up the state of your 12 knowledge in video codex? 13 A. In general. I know some of the 14 acronyms and buzzwords, as well, but I'm not an 15 expert by any means. 16 Q. Give me some of the acronyms that 17 are? 18 A. Well, a compression mechan -- 19 compression algorithms like MPEG and the 20 various versions of MPEG, for example, are 21 widely used. I know that some of my colleagues 22 do research into video compression algorithms, 23 but I'm not really up on their work. 24 Q. Okay. 25 Have you ever heard of Divx? 84 1 EDWARD FELTON 2 A. Yes, I've heard of it. 3 Q. Do you know anything about it? 4 A. I don't -- I don't understand it in 5 any detail. 6 Q. You do you know if it's widely 7 available? 8 A. I don't know that. 9 MR. GARBUS: I object to the 10 use of the word "widely." 11 THE WITNESS: I don't know how 12 widely available it is. 13 Q. Okay. 14 Now, did you ever have any 15 communications with Eric Corley or Emmanuel 16 Goldstein? 17 A. No. 18 Q. Do you know who that is? 19 A. Yes. I understand that that's one 20 person. 21 Q. That's a start. 22 A. And that he's one of the defendants 23 in this case. 24 Q. Okay. 25 A. And that he is the publisher or 85 1 EDWARD FELTON 2 otherwise associated with 2600 Magazine. 3 Q. Had you ever heard of 2600 Magazine 4 before, let's say, your luncheon meeting with 5 Mr. Garbus? 6 A. Yes, yes. 7 Q. Had you ever read it before? 8 A. Yes. 9 Q. Had you ever visited the 2600 Web 10 site before your luncheon meeting with 11 Mr. Garbus? 12 A. Yes. 13 Q. And I'm sorry, you may have 14 answered this. I apologize. 15 Can we place a rough date on your 16 luncheon meeting with Mr. Garbus? 17 A. It was a couple months ago. That's 18 the best I can do. 19 Q. Okay. 20 And can you give me the gist of 21 what was said at that luncheon meeting? 22 A. Sure. There was some general 23 discussion about this case, and Professor Appel 24 was present at the lunch along with Mr. Garbus 25 and me. And so -- and at that point Mr. Garbus 86 1 EDWARD FELTON 2 had discussed, I understand, in the past with 3 Professor Appel, the possibility of his 4 testifying. And so there was some discussion 5 about that. 6 There was some discussion about 7 what the case was about in general, issues of 8 schedule. 9 There was some discussion about the 10 -- the topics that were discussed in a paper 11 that Professor Appel and I wrote and submitted 12 to the Copyright Office and then later to 13 Communications of the ACM, and there was, I 14 think, also some discussion of issues involved 15 in a -- in declarations that Professor Appel 16 had written in other cases previously relating 17 to the role of source code as a means of 18 expression for computer scientists. 19 Q. Okay. 20 Were there areas of potential 21 testimony or analysis that were focused on you, 22 Ed Felten? 23 A. I -- I think there was a general 24 discussion of my background and what my areas 25 of specialization were and so on. But I don't 87 1 EDWARD FELTON 2 recall anything more specific than that. 3 Q. There was no discussion of areas 4 where you might be qualified to testify in the 5 case or provide a declaration at that luncheon 6 meeting? 7 A. I don't remember any discussion at 8 that lunch meeting except that at the very end 9 there was a very brief exchange about whether I 10 might potentially be interested in testifying. 11 Q. And did you -- who -- who asked you 12 whether you might potentially be interested in 13 testifying, Mr. Garbus? 14 A. Mr. Garbus. 15 Q. Okay. 16 And did you respond to that query? 17 A. Yes. I said that I was interested 18 in discussing it more. 19 Q. Okay. 20 A. But not a yes or no. 21 Q. Okay. 22 Was there anyone else present at 23 the luncheon aside from you, Appel and Garbus? 24 A. No. 25 Q. When did you next have occasion to 88 1 EDWARD FELTON 2 speak to anyone or communicate with anyone 3 regarding this case or your involvement in it 4 like an e-mail or in-person or telephonic? 5 A. I talked to Professor Appel not 6 long after that -- I'll wait. 7 (Brief interruption) 8 Q. Okay. 9 A. Now that the tape is back, I talked 10 to Professor Appel not long after that -- that 11 lunch that I just referred to -- 12 Q. Okay. 13 A. -- in general about -- about the 14 possibility of me testifying. 15 Q. Okay. 16 A. That was, I think, the next 17 discussion. 18 Q. Okay. 19 To your knowledge, had Professor 20 Appel already committed to testifying in this 21 case? 22 A. I don't know whether he had 23 committed or not. 24 Q. All right. 25 Did Professor Appel encourage you 89 1 EDWARD FELTON 2 in any way to testify in this case? 3 A. No, I don't think he did. I don't 4 think he expressed an opinion one way or the 5 other about whether I should or should not. 6 Q. Did you have any discussion with 7 Professor Appel in any way about whether you 8 should or should not? 9 A. I don't think I did, no. 10 Q. So what was discussed with Appel 11 regarding your involvement in the case? 12 A. Information about the case, what he 13 might be -- what he was expecting to testify 14 about, which areas and so on. 15 One of the things that I wanted to 16 understand was, you know, what -- where -- the 17 extent to which my testifying would sort of add 18 to what he was saying. 19 Q. Okay. 20 A. Whether -- 21 Q. I'm sorry. Go ahead. 22 A. Whether there were areas, relevant 23 areas in which I had expertise beyond his. 24 Q. Okay. 25 A. So I wanted to understand what he 90 1 EDWARD FELTON 2 might talk about. 3 Q. Okay. 4 Were you able to identify during 5 that conversation with Professor Appel any 6 areas where you might add to what he had to 7 offer? 8 A. I'm not sure whether I identified 9 things during the conversation, but I 10 eventually came to an understanding about that. 11 Q. And when did you come to an 12 understanding about that? 13 A. I think it happened over a period 14 of time starting after the -- the lunch meeting 15 that we talked about and going forward for, I 16 don't know, some period of weeks probably. 17 Q. Okay. 18 And you are in pretty much daily 19 contact with Professor Appel when you're both 20 in the office, is that right? 21 A. More or less, yeah. We -- probably 22 more -- I speak to him the majority of days 23 about one thing or another. 24 Q. Okay. 25 Your offices are adjacent to each 91 1 EDWARD FELTON 2 other? 3 A. Down the hall. 4 Q. Right. Okay. Okay. 5 And did you speak with anyone else 6 other than Professor Appel in trying to clarify 7 or crystallize in your mind what things you 8 might be able to add to what he might testify 9 to? 10 A. Yes. I later spoke to Mr. Garbus 11 and also Mr. Hernstadt. 12 Q. Okay. 13 And can you tell me, relative to 14 the lunch meeting, when that occurred or when 15 those conversations occurred? 16 A. It would have been in a series of 17 phone conversations between -- starting 18 sometime after the -- the lunch meeting and 19 going up until, say, sometime in June. 20 Q. Okay. 21 A. So I would have spoken on the phone 22 to them a few times during that -- during that 23 period. 24 Q. And is it your testimony that it 25 was partly your own reflection, partly your 92 1 EDWARD FELTON 2 discussions with Professor Appel and partly 3 your discussions with Messrs. Hernstadt and 4 Garbus that helped you sort of crystallize in 5 your mind what areas of additional testimony 6 you might be able offer over and above that of 7 Professor Appel? 8 A. I think in understanding what I 9 could testify about, which areas I had sort of 10 knowledge or expertise beyond Professor Appel, 11 it was really my discussions with him that -- 12 Q. Got you. 13 A. -- that helped me understand that. 14 Q. Okay. 15 But that you could ultimately wind 16 up communicating your thoughts to 17 Messrs. Garbus or Hernstadt on that subject? 18 A. We did talk about whether -- about 19 what areas -- in what areas I -- I would be 20 testifying, yes. 21 Q. Okay. 22 In addition to that which Appel was 23 going to cover or might cover, is that right? 24 A. That's right. 25 Q. Okay. 93 1 EDWARD FELTON 2 This is not a trick question. I'm 3 really just trying to focus on what you bring 4 to the table, sir. 5 A. And also to the extent that I have 6 some expertise in the same areas as Professor 7 Appel, there's -- there's obviously some 8 overlap between our testimony, as well. 9 Q. Okay. 10 Can you tell me in subject matter 11 areas what areas you discussed testifying in 12 with Professor Appel and/or Mr. Garbus and/or 13 Mr. Hernstadt, whether those overlapped or were 14 separate and apart or in addition to those 15 Appel might testify to? 16 A. Well, a good place to start is the 17 -- the list of four topics -- that is in the 18 declaration. 19 Q. Right. 20 A. And let me look at that -- 21 Q. Sure. Please. 22 A. -- and see whether there's anything 23 else that comes to mind. 24 Q. Okay. 25 A. I -- I don't recall discussing 94 1 EDWARD FELTON 2 anything else that's not listed here. 3 Q. Okay. 4 Now, we are talking about the four 5 subject matter categories that are identified 6 in Paragraph 3 of your declaration that's been 7 marked Exhibit 3, right? 8 A. That's right. 9 Q. Okay. 10 Let's work backwards, I guess. 11 A. Okay. 12 Q. The fourth category is the 13 relationship between studying and improving the 14 practice of cryptography and computer security 15 related to the foregoing. I guess that is 16 going to lead us into the earlier ones, but I 17 -- is this subject matter, Number 4 in 18 Paragraph 3, that which we were talking about a 19 little bit earlier in terms of detecting 20 weaknesses in systems and system security and 21 making information concerning those weaknesses 22 available? 23 A. We talked earlier about my 24 experiences in doing that, but we did not talk 25 about why it's valuable to the value of that 95 1 EDWARD FELTON 2 sort of testing and that sort of discussion for 3 education and practice in -- in security and 4 cryptography. So we talked about any 5 experience, but not about the topic in general 6 or the implications of -- of discussion. 7 Q. Fair enough. And again, I'm really 8 trying to do this to expedite things. 9 A. Sure. 10 Q. So you'll stop me if I in any way 11 misstate anything you say, please. But we did 12 touch upon what I thought were your beliefs as 13 to the value of testing security systems, if 14 you will, and the value of making the 15 weaknesses known. 16 Is that part of the Subject Matter 17 4, the relationship between studying and 18 improving the practice of cryptography in 19 computer security? 20 A. That's -- that's part of the 21 subject matter, yes. 22 Q. What else in addition to what we 23 talked about is covered by this Subject Matter 24 4? 25 A. The use -- for example, the use of 96 1 EDWARD FELTON 2 information about vulnerabilities and 3 historical vulnerabilities, and testing and so 4 on. The use of all of that in education, and 5 how these sort of activities contribute to the 6 practice, by which I mean the making of better 7 and stronger systems in the future. 8 Q. Okay. 9 A. That's an example of something that 10 goes beyond what we talked about earlier. 11 Q. When you talk about -- I'm sorry. 12 A. I'm done. 13 Q. Okay. 14 When you talk about the value in 15 education, are you talking about using examples 16 of systems and system weaknesses in the 17 classroom with students? 18 A. Yes. 19 Q. Are these undergraduate students, 20 graduate students or both? 21 A. Both. 22 Q. Okay. 23 Have you, in fact, done so? 24 A. Yes. That's a -- it's -- it's an 25 important part of the security course that I 97 1 EDWARD FELTON 2 teach. 3 Q. I see. 4 And were any of the 12 instances 5 where you were involved in the discovery of a 6 flaw or weakness in the system, have any of 7 those been used in your classroom work with 8 your students? 9 A. Yes. Some of them have been used 10 specifically and also as sort of overview of -- 11 of them, also. 12 Q. Okay. 13 A. It's part of what I use in 14 teaching. 15 Q. Okay. 16 But not all of the 12 have been 17 used in your classroom work? 18 A. Not all of those specifically, no. 19 Q. Okay. 20 A. I also use a number of other 21 systems that have been found to be flawed in 22 the past and what can be learned from that, 23 including CSS. 24 Q. Okay. 25 So we are leading to my next 98 1 EDWARD FELTON 2 question which is, have you had occasion at any 3 time in your classroom work with students to 4 use DeCSS? 5 A. I have -- I had a discu -- there 6 was a discussion in -- in one of my lectures in 7 my security class in the spring semester of 8 this year regarding CSS and DeCSS. 9 Q. Okay. 10 And in the course of that 11 discussion, did you at any time operate DeCSS 12 as an executable utility? 13 A. No. What I did was I used the 14 knowledge which I had gotten from examining 15 DeCSS to be able to give a -- an informative 16 and useful lecture about it. So the 17 availability of that -- of that software to me 18 allowed me to -- to teach my course better, to 19 teach about that material. And I did discuss 20 with the students what CSS does, what DeCSS, 21 does and the fact that DeCSS is available on 22 the Net. 23 Q. Did you express any views about 24 this case with your students in connection with 25 these classroom discussions? 99 1 EDWARD FELTON 2 A. No. I did mention that there was a 3 case. At that time I did not know -- I knew 4 very little about the case except that it 5 existed and that it was about the DeCSS 6 utility. 7 Q. Got you. Okay. 8 Have you ever read the court's 9 opinion with respect to the preliminary 10 injunction issue in this case? By opinion I 11 mean sort of the reason, the judge's views of 12 the evidence and the findings. I don't mean to 13 characterize it as a legal matter. I'm just 14 trying to describe what I'm talking about. 15 A. I did read it at one point, 16 although it's pretty far back in time. So I 17 don't have a clear memory of what's in it. 18 Q. Okay. 19 How many classroom sessions 20 involved the discussion of CSS or DeCSS? 21 A. One. 22 Q. And was the entire class session 23 that day devoted to that particular subject? 24 A. Not to CSS specifically. That was 25 a class which was discussing uses of encryption 100 1 EDWARD FELTON 2 to -- to try to restrict the use of various 3 digital content. That topic in general. 4 Q. I see. 5 A. And one of the subtopics was CSS 6 and the experience with it. 7 Q. Okay. 8 Were there any other security 9 systems or encryption systems that were 10 discussed with respect to the protection of 11 digital content, I think as you said, apart 12 from CSS? 13 A. I'm sure I discussed some of the 14 commercial software systems that are designed 15 to do this. I don't recall specifically which 16 ones I talked about. 17 Q. Okay. 18 A. There is relatively little 19 technical information available publicly about 20 some of them, so CSS was probably the one where 21 I had the most access to information about how 22 the system really works. 23 Q. Okay. 24 And why is it that with respect to 25 some of these other systems there is very 101 1 EDWARD FELTON 2 little public information available about them? 3 A. Some of the other systems are still 4 in development. Some of them may be more 5 complicated and, at least as far as I'm aware, 6 less information has been released or reverse 7 engineered about the other systems. 8 Q. And are we talking about some of 9 the other systems that are actually 10 commercially in place? 11 A. Yes. 12 Q. Can you put a name to those even if 13 you can't remember if you discussed them? 14 A. I can't remember whether I 15 discussed specific ones -- 16 Q. Fair enough. But sitting here 17 today -- 18 A. Intertrust Systems is one example. 19 Q. Any others? 20 A. I'm not recalling the names of 21 others. 22 Q. Okay. 23 And you mentioned a minute ago that 24 there were systems more complicated than CSS, I 25 believe? 102 1 EDWARD FELTON 2 A. Yes. 3 Q. Do you regard the Intertrust System 4 as more complicated than CSS? 5 A. I think it probably is. What it is 6 trying to do is more complicated than what CSS 7 is trying to do. Not having access to 8 information about how the Intertrust System 9 works, I can't say for sure, but it seems to me 10 likely that it's more complicated. 11 Q. And what do you base that statement 12 on? 13 A. The fact that it's trying to 14 provide a more complex set of functions, more 15 different kinds of control or ability to 16 specify use, ability to extract payment on a 17 per-use basis and so on. A lot of functions 18 like that. 19 Q. Got you. Okay. 20 Okay. 21 Is there anything else about the 22 relationship between studying and improving the 23 practice of cryptography and computer security 24 that you either intend to testify about or are 25 prepared to testify about in connection with 103 1 EDWARD FELTON 2 this case? 3 A. I can't think of anything I haven't 4 mentioned. 5 Q. Let's move up to Number 3. I 6 promised you I'd try to do this as efficiently 7 as possible. This is Subpart 3 of your 8 Paragraph 3 of our Exhibit 3 declaration, the 9 importance of disseminating and making 10 available information concerning the subject of 11 such tests and the methodology and results of 12 such testing. 13 Now, just again, for clarity's 14 sake, we had talked earlier about the public 15 dissemination of information regarding flaws in 16 systems and the like. Is -- is that what this 17 subject addresses? 18 A. In part. 19 Q. Okay. 20 A. Information about flaws, but also 21 information about methods used to find the 22 flaws -- 23 Q. Okay. 24 A. -- and information about the sort 25 of scientific procedures used and what the 104 1 EDWARD FELTON 2 specific results of testing were, not just 3 there's a flaw of this nature, but how it was 4 found. 5 Q. Okay. 6 A. And -- and the implications of it 7 and information about what went wrong to cause 8 the system to be vulnerable. 9 Q. Okay. 10 Do you -- are you prepared to 11 testify to your views as to the vulnerabilities 12 of CSS and what in your estimation, 13 professional estimation went wrong as it were? 14 A. I have -- I have an understanding 15 of some of the mistakes that the designers of 16 the CSS made. And so I am prepared to testify 17 about that, not in great detail. 18 Q. Okay. 19 A. But at a basic level. 20 Q. Okay. 21 And just tell me basically what 22 your testimony would be. 23 A. Well, on a technical level they 24 made a number of mistakes. One of them was 25 designing their own cipher instead of using a 105 1 EDWARD FELTON 2 standard one that had been well-studied. One 3 was using a 40-bit key size. One of the -- 4 there were mistakes which led to the 5 vulnerability that Frank Stephenson described 6 that allowed someone to find a key with less 7 than a 40 -- a full 40-bit space search. And 8 there are also issues related to the 9 description of distribution of keys which are 10 more technical. I have not thought about those 11 in -- in much detail at this point. 12 Q. Now, you mentioned the 40-bit key 13 size. 14 A. Yes. 15 Q. Okay. 16 Are you aware of any sort of 17 government regulation that was in place at the 18 time with respect to supporting limitations on 19 certain encryption device or codes? 20 A. Yes. 21 Q. And is it true that at the time CSS 22 was first implemented commercially that it was 23 subject to some sort of government regulation, 24 again, I'm not asking for legal views, with 25 respect to export of encryption code that was 106 1 EDWARD FELTON 2 greater in length than 40-bit keys? 3 A. I know there were U.S. government 4 export restrictions that applied more stringent 5 rules to -- to devices that used more than 6 40-bit keys. Whether those rules -- how those 7 rules applied to CSS I can't say. 8 Q. Fair enough. 9 But you were generally aware of the 10 existence of those export limitations, correct? 11 A. Yes. 12 (At this time, Mr. Gold enters 13 the room) 14 MR. HART: That's Mr. Gold. 15 He's a colleague of mine. 16 Q. Now, I think the third category you 17 mentioned -- we are not on the dec, we are in 18 subpart -- 19 A. Okay. 20 Q. -- was something about the way in 21 which the keys were protected or the way in 22 which the hack occurred. Is that -- 23 A. The way -- key management in 24 general, which is about how you choose the 25 keys, how many different keys there are, who 107 1 EDWARD FELTON 2 has which keys, where they're stored and so on. 3 And in the design of a system like CSS key 4 management would be one of the critical issues. 5 Q. Okay. 6 And when you say "key management," 7 what do you mean by that? 8 A. As I said, I guess I gave a 9 definition a minute ago, which -- 10 Q. Okay. 11 A. -- pretty much having to do with 12 everything, how keys are generated, who has 13 them, where they are stored and so on. 14 Q. And what is your understanding of 15 key management with respect to the CSS system? 16 A. I don't recall the details of how 17 it works, although I have read about that. 18 There are -- I know there are certain keys 19 which are stored in every DVD player, and that 20 manufacturers of DVDs have access to certain 21 keys. I don't recall exactly how those fit 22 together. 23 Q. And do you have any knowledge and 24 are you prepared to testify in any way with 25 respect to the particular circumstances of how 108 1 EDWARD FELTON 2 CSS was -- was -- was hacked? 3 A. I don't have any special knowledge 4 about that. 5 Q. Okay. 6 Let me just back up and, again, 7 this is just sort of in an effort to expedite 8 things. You gave an answer several questions 9 ago where you categorized four things about 10 Subject Matter 3 in Paragraph 3, and I want to 11 go back to those four things. 12 (Record read) 13 MR. HART: Okay. Good. 14 Thanks. That helped remind me of 15 where we were at. 16 Q. Issues about key distribution. We 17 just talked about what you know on that 18 subject, yes, in terms of key management 19 relative to CSS? 20 A. Yes. 21 Q. Okay. 22 Let's go to the topic about the 23 mistakes and Frank Stephenson. What can you 24 tell me about that? 25 A. Sitting here right now, I don't -- 109 1 EDWARD FELTON 2 I don't recall specifically what the mistakes 3 were that led to that. I remember reading 4 Stephenson's paper and verifying that with 5 reference to the -- to the -- the code for CSS 6 and DeCSS and understanding what the problem 7 was, but I don't -- don't remember at the 8 moment. 9 Q. And you've read Stephenson's paper, 10 right? 11 A. Yes. 12 Q. It's available on the Internet, 13 right? 14 A. It at least was when I got it. 15 Q. That's right. 16 A. That's where I got it from. 17 Q. Do you recall whether Stephenson 18 included DeCSS as a zip code or downloadable 19 utility? 20 A. I don't recall. 21 Q. Okay. 22 A. I do know, though -- I do recall, 23 though, that when I was reading Stephenson's 24 paper I made reference to the code which I had 25 downloaded. 110 1 EDWARD FELTON 2 Q. And you didn't post the code? 3 A. No. I didn't want to be sued. 4 Q. All right. 5 Have we exhausted -- 6 MR. GARBUS: I object to the 7 use of the word "exhausted." 8 MR. HART: Well, I won't use it 9 to describe you, Marty, but -- 10 Q. Notwithstanding Mr. Garbus's 11 objection, have we covered Subject Matter 3 12 within Paragraph 3 insofar as you're prepared 13 to provide testimony in this case? 14 A. I can't think of anything that we 15 haven't covered. 16 Q. Good. 17 Let's turn to Subject Matter 4 18 within Paragraph 3. And just for the record, 19 it's the methodology, purpose and importance of 20 testing security systems, protecting access 21 and/or use of various computer and/or 22 Internet-related system. What does that mean? 23 A. Well, it's about how and why -- how 24 you go about testing and studying the security 25 level or vulnerabilities in software, how that 111 1 EDWARD FELTON 2 process works -- 3 Q. Okay. 4 A. -- both within an individual lab 5 and sort of how the community process works 6 among all the people working in that area. 7 Q. Okay. 8 A. And why that matters to -- to 9 various people. 10 Q. Okay. 11 So why don't you tell me what 12 you're prepared to testify to in that regard. 13 A. Well, I have a lot of experience in 14 doing this myself. And so I'm prepared to 15 testify about the methods that one uses, about 16 the sort of training that someone would go 17 through in order to learn how to do this, about 18 the interactions between people who do this, 19 what sort of interactions I've had with -- with 20 colleagues elsewhere and others who are engaged 21 in that sort of study. 22 Q. Right. 23 A. How -- how different groups of 24 people studying the same system interact and 25 cooperate with each other. 112 1 EDWARD FELTON 2 Q. Okay. 3 A. And then, in general, and also 4 based on my experience, what value people -- 5 the public and -- and vendors and computer 6 professionals in general get from that testing. 7 Q. Okay. 8 This last subject, the value to the 9 public and the vendors and the like, is 10 something we have covered in your testimony 11 today? 12 A. We've covered it in general, yes, 13 why -- why I think it is valuable to those 14 people. Although I'm not sure we've covered 15 all of the different communities who -- who get 16 value from this sort of testing. 17 Q. Okay. 18 Why don't you identify those 19 communities for me. 20 A. Well, we talked about -- at least 21 about the value that's provided to the vendors. 22 Q. Right. We talked about the value 23 to the public, correct? 24 A. To the public, yes. 25 Q. Right. 113 1 EDWARD FELTON 2 A. And there are also organizations or 3 -- there are also people within organizations 4 who are in charge of maintaining or securing 5 the computer system, system administrators and 6 so on. Those people want to be able to 7 understand the security, the implications of 8 the choices they are making and security 9 implications of the choices they have already 10 made -- 11 Q. Got you. 12 A. -- in deploying software. 13 Q. And these are people that would be 14 aligned with the vendor role even if they don't 15 work for a particular vendor whose systems may 16 have been compromised? 17 A. Not necessarily. 18 MR. GARBUS: Objection. 19 A. Let me give you an example of the 20 person I'm talking about. 21 Q. Please. 22 A. And I'll do it within -- within 23 Princeton University. 24 There's an organization called 25 Computing and Information Technology which sort 114 1 EDWARD FELTON 2 of runs the networks and the public computer 3 clusters and all of that. And they not only 4 handle the operations of those -- all systems 5 but they make decisions about which software 6 would be deployed, what the security policy is 7 going to be, who is allowed to access what and 8 so on. 9 And in order to make informed 10 decisions about what to allow and what they 11 should -- what they should do and what they 12 should allow their customers, their users to 13 do, they need to understand not only specific 14 vulnerabilities in specific systems but also to 15 have a general sense of which kinds of systems 16 are likely to be vulnerable, how common 17 vulnerabilities are and so on. 18 Q. Okay. 19 A. And -- okay. 20 Q. That covers value and identifies 21 the relevant communities? 22 A. I can think of at least one more 23 community, which is law enforcement. 24 Q. Okay. 25 A. Law enforcement agencies are very 115 1 EDWARD FELTON 2 keen to talk to people who have an 3 understanding of security vulnerabilities, how 4 they are found, how to test for them and so on. 5 Q. And why is that? 6 (Brief interruption) 7 A. Could you repeat the question? 8 Q. I'm going to have to have the 9 reporter read it back. I'm sorry for the 10 interruption. 11 (Record read) 12 A. They want to understand what kinds 13 of computer crime are likely to be committed. 14 They want -- they want help in investigating 15 things that have already occurred, and in 16 general they -- they want help with the sorts 17 of forensic analysis which tend to be done in 18 looking for security flaws. 19 Q. Got you. Good. 20 Now, the first three things that 21 you mentioned -- and I think you've presented 22 five. 23 A. Okay. 24 Q. Were methodology, training, and 25 interaction between the interested parties if I 116 1 EDWARD FELTON 2 can use those words. Is that -- 3 A. Okay. 4 Q. I -- 5 A. Sure. I -- I remember talking 6 about all of those things. 7 Q. Okay. 8 What's the significance of 9 training? 10 A. So I -- I believe what I was -- I 11 think what I -- what I was talking about or 12 what you are referring to is how one goes about 13 training people to do this kind of study. 14 Q. Study being? 15 A. Study of -- analysis of -- of 16 systems looking for vulnerabilities. 17 Q. Okay. 18 A. How one goes about training 19 students, for example, to do that or training 20 oneself for that matter. 21 Q. Okay. 22 How does one go about training? 23 A. Partly practice. 24 Q. Right. 25 A. Partly by studying what other 117 1 EDWARD FELTON 2 people have done, the experiences other people 3 have had, how they go about doing it, what 4 their methods are and what they found. Partly 5 it's developing general skill at reverse 6 engineering, which is something you can 7 practice, and also study methods, understanding 8 what tools are available and how they can be 9 used. 10 Q. Now, you mentioned the interactions 11 that take place between interested parties. 12 Can you tell me what you mean by that? 13 A. Sure. We talked earlier about 14 interactions between -- some examples of 15 interactions between vendors of systems and 16 people who find flaws in them. Also, 17 interactions between -- really all the 18 interested parties, vendors, system 19 administrators, members of the public, people 20 who are doing studies of vulnerabilities, and 21 sometimes law enforcement. All of those groups 22 interact with each other -- 23 Q. Right. 24 A. -- in different ways. Even 25 interactions for example, between people who 118 1 EDWARD FELTON 2 are studying vulnerabilities in the same 3 system. Quite a bit of experience in that. 4 Q. Okay. 5 And what do you mean by 6 "interactions"? 7 A. What I mean in that -- in that 8 instance, between different researchers 9 studying the same subject -- 10 Q. Right. 11 A. -- how these people find out about 12 each other, how they communicate their results 13 to each other, how they build on each other's 14 work -- 15 Q. Okay. 16 A. -- and -- and so on. How they 17 sometimes come into collaboration on projects 18 and all that. 19 Q. And tell me what you know about 20 that, what you are prepared to testify in this 21 case in that regard. 22 A. Several -- well, several things. 23 Q. Okay. 24 A. One -- one part -- one thing which 25 I've experienced is that -- well, this is often 119 1 EDWARD FELTON 2 a phenomenon in research where you are working 3 on a problem, working on some topic, and you 4 don't know anyone else who's working on it and 5 somehow you hear of someone else who is doing 6 it. And in my experience, very frequently 7 after there's been some public discussion based 8 on -- my group's work, whether it's in the 9 press or on our Web site, we get people who 10 we've never heard of come to us and describe 11 what they are doing, which is very useful and 12 relevant to -- helps to inform us about what's 13 going on and give us useful information. 14 Q. And how do they come to you, by 15 what means? 16 A. Usually -- usually they'll call me 17 or send me an e-mail. 18 Q. Okay. 19 A. Which, to me, just comes out of the 20 blue. 21 Q. Okay. Got you. 22 And is code shared in those e-mails 23 on occasion? 24 A. On occasion, yes. 25 Q. Okay. 120 1 EDWARD FELTON 2 And so as long as people know that 3 you are working on a particular subject or have 4 an interest in it by some information that's 5 put on a public Web site, you can solicit, 6 comment and further communicate through such 7 things as phone calls and e-mails, is that 8 right? 9 A. You could always discuss things by 10 e-mail, but one of the -- one of the challenges 11 in this situation is that you receive many 12 comments from people, and it's by the technical 13 content in those comments and it's by the 14 sophistication of their reaction to the 15 technical details that we've published that we 16 can spot the people who are really the most 17 interesting ones to -- to talk to. 18 Q. Okay. 19 A. And so it's really the technical 20 parts of the discussion that let me recognize 21 which of the thousand of e-mails I got -- 22 Q. Right. 23 A. -- are likely to lead to a useful 24 technical discussion. 25 Q. Okay. 121 1 EDWARD FELTON 2 So, in other words, you may get a 3 thousand e-mails in regard to a particular 4 topic and you will screen those essentially and 5 look at the ones that you think have the most 6 value or the writer of that e-mail might have a 7 lot to contribute and again get into further 8 communication with that person, is that -- 9 A. Well, in general I'll read 10 everything. 11 Q. Sure. 12 A. And, you know, some -- some person 13 may be pointing out an -- an interesting idea I 14 haven't heard of, has a new way of thinking 15 about a problem or has interesting feedback on 16 something that we have done. That can't happen 17 unless we're -- we are communicating to the 18 public in the beginning details about what -- 19 what we found and how -- 20 Q. I understand. 21 A. -- and why. 22 Q. And after you've communicated to 23 the public some details of what you found and 24 why and you've gotten e-mails from lots of 25 people, what do you then do in terms of 122 1 EDWARD FELTON 2 facilitating the interaction or communication 3 with the people that you're interested in 4 talking with? 5 A. Well, to -- generally I receive a 6 bunch of e-mails, a bunch of phone calls, and 7 respond to each one. Someone sends -- someone 8 has a particularly thoughtful or interesting 9 thing to say, I'm likely to, you know, have a 10 longer return conversation with them. And over 11 time you might develop a dialogue or a 12 collaboration or some sort of relationship with 13 someone that originated this way. And a lot of 14 communications just lead to -- lead to nothing. 15 Q. And where you have a continuing 16 dialogue, how do you conduct that dialogue on a 17 continuing basis? 18 A. Once you already know that you are 19 working in the same area as someone, then you 20 can operate by e-mail, for example. But in the 21 beginning, in my experience you almost never 22 know who those people are. And it's only 23 through the more general kind of discussion 24 that -- it's only that that leads people to -- 25 to start the interaction. 123 1 EDWARD FELTON 2 Q. Got you. 3 A. So it's not the case that there's 4 some small community of people working on this 5 problem who I know in advance -- 6 Q. I understand. 7 A. -- who they are. 8 Q. I understand. 9 MR. GARBUS: Mr. Hart, do have 10 any sense of how long you are going 11 to go? I want to release my wife 12 so we can start our weekend if 13 you're going to go longer. 14 MR. HART: I'm obviously going 15 longer because I'm not finished 16 with my questioning. If you have 17 to release your wife from whatever 18 you've done, as a matter of 19 courtesy, I would suggest that you 20 release her immediately. 21 MR. GARBUS: As a matter of 22 courtesy, can you tell me how far 23 do you -- how long you think you 24 are going to go? 25 MR. HART: I wouldn't expect to 124 1 EDWARD FELTON 2 go more than another hour as a 3 matter of courtesy. 4 MR. GARBUS: Go ahead. 5 Continue. I'm just going to make a 6 call. I can listen to the 7 questions as you are doing it. 8 MR. HART: Okay. I don't know 9 if I can ask questions while you're 10 talking on the telephone. It's not 11 a question of your permission, sir. 12 It's a question of your being 13 distracting. 14 THE WITNESS: Can we just take 15 a quick break in any case? 16 MR. HART: That's fine. I 17 think that's the right thing to do. 18 THE VIDEOGRAPHER: Off the 19 record, 1:02. 20 (Brief recess taken) 21 THE VIDEOGRAPHER: Back on the 22 record at 1:12. 23 MR. HART: Could you just read 24 back the last Q and A, please? 25 We're all -- remind ourselves where 125 1 EDWARD FELTON 2 we were. 3 (Record read) 4 Q. So just to bring some closure to 5 that area before we move on, you're saying that 6 there's value in posting discussion to an open 7 Web site which, in turn, will generate input 8 from a variety of people by e-mail and then 9 further communication -- or a phone, I think you 10 mentioned. And then further communications 11 that are of interest to you would be you 12 pursued by phone or e-mail, is that a fair 13 statement? 14 A. Yes, it helps -- it helps you to 15 find -- it helps the people who are engaged in 16 the study of this area to find each other. And 17 I also think it inspires more people to go into 18 that kind of study. 19 Q. Okay. 20 Okay. 21 Now, I think we are still in 22 Subpart 2 of Paragraph 3, right? 23 A. Yes. 24 Q. Okay. 25 And we were talking about 126 1 EDWARD FELTON 2 methodology, purpose and importance of testing 3 security systems, protecting access and/or use 4 of various computer and/or Internet-related 5 systems, right? 6 A. Yes. 7 Q. And is there anything else beyond 8 what you've already testified here -- to here 9 today that you intend to or are prepared to 10 testify to in this proceeding relative to that 11 subject, Subpart 2 of Paragraph 3? 12 A. There is nothing else that I can 13 think of. 14 Q. Okay. 15 Subsection 1 of Paragraph 3, the 16 function, similarity and/or differences between 17 source code and object code, and we talked a 18 little about that today, is there anything else 19 that we can add that would bear on what you are 20 prepared to or intend to testify to in that 21 proceeding on that subject? 22 A. Well, I think in general I would 23 expect to testify to what source code and 24 object code are. 25 Q. Right. What are they? Sorry. 127 1 EDWARD FELTON 2 A. Sorry, is that a joke or a 3 question? 4 Q. It's actually a question that I 5 said with a smile on my face. But it is a real 6 question. 7 A. Let me finish the -- 8 Q. I'm sorry. Please. 9 A. -- my previous answer. 10 What they are, what they are used 11 for, what they're good for, and why and how 12 people use them as a medium of communication. 13 Q. Okay. Go ahead. 14 A. So -- sorry, could you -- 15 Q. Yeah. All right. 16 Now, could you tell me, based on 17 your last answer, what your testimony is or 18 will be with respect to what they are, what 19 they're used for, what they are good for and 20 I'm sorry, I neglected the last one. 21 MR. HART: We can have the 22 reporter read it back if that's a 23 help. 24 THE WITNESS: Sure. 25 (Record read) 128 1 EDWARD FELTON 2 A. Sorry, is there a question? 3 Q. Yes. I'm sorry. And, again, I'm 4 really just trying to expedite things. 5 If you don't mind, I'd like you to 6 now tell us in your professional opinion what 7 source and object code are, what they are used 8 for, and so on based on your last answer. 9 A. I'll go down the list. 10 First what they are. They are both 11 different ways of expressing a computer program 12 which is a list of instructions or a set of 13 procedures for a computer to carry out or a 14 process of doing something in series of stages, 15 essentially what a computer is going to do. 16 Q. Right. 17 A. There are different -- there are lots 18 of different ranges or notations for expressing 19 computer programs, and generally you would 20 apply the term "source code" to things which are 21 closer to the level at which humans tend to 22 analyze the -- and which humans prefer to 23 analyze the -- the functions of the -- of what 24 the computer is doing. And you generally apply 25 the term "object code" to things that are closer 129 1 EDWARD FELTON 2 to the form in which the computer actually 3 executes the software. In fact, it's really 4 more of a continuum. 5 Q. I understand. 6 A. There are often intermediary stages 7 and so on. 8 Q. I often refer to that distinction 9 as humanly readable versus machine readable 10 code. Would you disagree with that as 11 reflecting the two ends of the spectrum that 12 you just described? 13 A. Well, I think that both of those 14 descriptions you gave are too extreme in that 15 both forms are human readable and both forms 16 are machine readable, and there's value to 17 having machine and humans read -- be able to 18 read any of these forms and analyze them. 19 Certainly we teach students about all these 20 different forms, how to read them, how to write 21 them, what they're for, why they're used and so 22 on. 23 Q. But is it fair to say that to the 24 untutored eye object code is largely 25 unintelligible? 130 1 EDWARD FELTON 2 MR. GARBUS: I'll object to the 3 use of the term "untutored eye." 4 MR. HART: Untutored. 5 MR. GARBUS: I said untutored 6 eye. It depends on whose eye and 7 it depends on what "tutored" and 8 "untutored" means. 9 Q. Of course it does. 10 A. To the untutored eye it's pretty 11 much all gibberish. 12 Q. Of course. 13 A. It typically requires a bit more 14 training and experience to be able to read 15 object code effectively. One often reads or 16 extracts information from object code with the 17 help of -- of software tools. 18 Q. Called? 19 A. There are various different kinds; 20 debuggers, disassemblers and so on. 21 Q. Right. 22 A. Those are examples of the sorts of 23 tools one uses in working with object code. 24 Q. Right. Okay. 25 What else are you prepared to 131 1 EDWARD FELTON 2 testify? 3 A. That was what they are. 4 Q. Correct. 5 A. The next category is what they are 6 used for. 7 Q. Okay. 8 A. And they are used for several 9 things. They are used as a medium of -- that 10 people can use to express ideas about computer 11 programs and what they want the computer to do. 12 I'll leave that aside for now because that's 13 one of the later topics that I mentioned. 14 That's Number 4 on the list. 15 Q. Okay. 16 A. They are also used as computers -- 17 some forms of code can be executed directly or 18 indirectly by -- directly by a computer. All 19 of them can be executed indirectly, at least. 20 So that's another thing they are used for. 21 Q. When you say "indirectly" -- 22 A. What I mean is, at the extreme end 23 object code -- you have something -- you might 24 have something which you can just load into 25 memory and point the microprocessor at that and 132 1 EDWARD FELTON 2 it will execute. 3 Q. Right. 4 A. In other forms you might need help 5 from something -- a compiler to translate the 6 code into a different format. You might use 7 something called an interpreter which can 8 execute code that's written in yet another type 9 of format. And so when I talk about indirectly 10 executed something, I mean with the help of 11 other software. 12 Q. Okay. 13 So as an example, one can take 14 source code and, with the use of a compiler, 15 cause that source code to be converted into an 16 executable piece of code for the machine to 17 operate on? 18 A. That's an example, yes. 19 Q. Okay. 20 A. So these things are used as ways 21 for people to communicate with each other, they 22 are used to have a computer execute them, and 23 they are also used as a way that -- as a method 24 for people to describe what they want the 25 computer to do. So when you write code you 133 1 EDWARD FELTON 2 might be communicating partly to the computer, 3 but you are also communicating to other people 4 and to yourself. 5 Q. When you are communicating to other 6 people and yourself, are you doing that more on 7 the source code end of the spectrum rather than 8 on the object code end of the spectrum? 9 A. It depends what those people want, 10 what they want to learn about the program. 11 Certain kinds of information are most easily 12 extracted from source code and other kinds of 13 information are most easily extracted from 14 object code. 15 Q. Can you tell me what kinds of 16 information are extracted from which type of 17 code? 18 A. Sure. Source code is, as I said 19 before, a little bit easier to read than object 20 code and so it -- it might contain a 21 description of what the program does or is 22 supposed to do at a higher level of 23 abstraction. 24 Q. Okay. 25 A. And so if someone wants information 134 1 EDWARD FELTON 2 that exists or can be expressed at that level, 3 they might look at the source code. 4 The object code contains more 5 information about how the program will execute 6 a particular machine or on a particular 7 architecture, about the efficiency of that 8 execution, about what kind of resources would 9 be required to execute it. Information about 10 bugs or errors in the program might be found in 11 one or both of the forms. 12 Q. Okay. 13 A. So to move -- 14 Q. I just want to try and close that 15 subpart up -- 16 A. Okay, sure. 17 Q. -- which would be to say that the 18 value of the object code is in discerning the 19 efficiency of the program on a number of 20 different levels including how fast it would 21 respect or how effectively it would run? 22 MR. GARBUS: I object to you 23 testifying, Mr. Hart. Now, your 24 job here as I understand it is to 25 ask the witness questions. And 135 1 EDWARD FELTON 2 incorrectly stating or qualifying 3 or narrowing his testimony is 4 inappropriate. I object to the 5 form of the question. I will allow 6 the witness to answer. I've 7 permitted you to testify on a 8 number of occasions in the hope of 9 closing down this deposition. Go 10 ahead, Mr. Felten. 11 THE WITNESS: All right. 12 A. I think what you said is part of 13 the picture. 14 Q. Okay. 15 A. Certain -- certain kinds of 16 information about efficiency, for example, 17 about interaction with the detailed features of 18 a microprocessor or some hardware device might 19 be in the object code, but not in source code. 20 Also, there are certain things 21 about a program which you can only learn or 22 best learn by actually running the program. 23 And in order to do that you have the program in 24 a form such that you can actually run it. 25 Q. What things do you learn only when 136 1 EDWARD FELTON 2 you run the program? 3 A. Some -- some things having to do 4 with efficiency and use of resources by the 5 program are best learned by running the 6 program. There are some forms of testing which 7 -- there are some situations where you can 8 learn about the behavior of a program by a 9 systematic testing method of running the 10 program in different inputs and so on. And 11 that's often more effective than just analyzing 12 the program and scratching your head. So 13 that's -- that's one example. 14 Q. Okay. 15 Do you have anything else to add on 16 the value of the object code form as 17 distinguished from the source code form? 18 A. I think that's all. 19 Q. Okay. 20 Let's just continue with your 21 checklist. You have it in front of you. 22 A. What are they good for? I think 23 I've -- that largely falls -- that largely is 24 covered by information in the other categories. 25 I've talked about testing. I've talked about 137 1 EDWARD FELTON 2 learning about the programs. The next item is 3 using the code as a medium for communication. 4 Q. Okay. Go ahead. 5 A. So let me move on to the -- the 6 last one, which is why and how software code is 7 used as a medium of communication. 8 Q. Please. 9 And so -- a medium of communication 10 in this case between people. 11 And there are a number of ways in 12 which that's done. This -- code is the most 13 precise method that we have for specifying a 14 computer program. If we want to talk about a 15 program or algorithm. The most precise way of 16 doing it is exhibiting code, because that says 17 exactly what the program does without leaving 18 out details. And the code is often in the 19 details. So you often need to see code in 20 order to understand what someone is talking 21 about. 22 Q. Okay. 23 A. Code also can serve as an 24 existential proof of something. You say I can 25 do something and someone, if they doubt you, 138 1 EDWARD FELTON 2 you can show them the code and they can try it 3 out themselves. 4 There are -- in addition, in the 5 process of writing code there are many choices 6 that the author can make. Some of them 7 aesthetic, some of them having to do with how 8 things are named, how things are arranged, how 9 the functions of the software are divided up 10 and organized. And a lot of ideas about how to 11 structure or organize software or a particular 12 program get expressed in the code. 13 Books that talk about how to write 14 programs, how to be an effective programmer are 15 usually filled with examples of code for just 16 this reason. If -- computer programming is 17 about writing code, and in order to be a good 18 writer even of English, you have to read good 19 writing and a lot of it, and maybe read some 20 bad writing, and talk about it and figure out 21 what's -- what's wrong with it. So in all of 22 those ways software code is a way that people 23 can communicate with each other. 24 Also, in writing code you're 25 communicating with yourself because -- I know 139 1 EDWARD FELTON 2 it sounds funny but -- 3 Q. I find a lot of things funny. And 4 believe me, I'm say -- this is very 5 well-spirited. I think you understand that. 6 A. Yeah. 7 Q. Okay. 8 A. I understand that. 9 You are communicating with yourself 10 in the sense that you might write a piece of 11 code and then two months later come back and 12 need to fix it and you want to be able to read 13 it and understand what you meant. And so that 14 sense, it's also -- there's also a 15 certain expressiveness in the way you write it 16 would be -- that would be easy for someone to 17 understand what it is intended for when you 18 come back, and that someone else might be you 19 having forgotten things in the meantime. Those 20 are all examples of why and how software serves 21 as a medium of expression. 22 Q. Okay. 23 A. I know Professor Appel has written 24 about and spoken about examples of people using 25 code as a medium of expression and a way of 140 1 EDWARD FELTON 2 publishing scientific ideas. 3 Q. Right. 4 A. Which -- which I won't go into in 5 detail. 6 Q. Okay. 7 A. But there are lots of examples of 8 people doing that and code serving as a medium 9 of expression and communication between -- 10 between researchers and even from researchers 11 to the -- to the general programming community. 12 THE COURT REPORTER: I just 13 need to change my paper real quick. 14 MR. HART: Okay. 15 Q. Now, in the examples you just gave 16 about code as a medium of expression in 17 communicating ideas, is it typical in your 18 experience to do so by including the code for 19 an entire program in unexpurgated form or is it 20 parsing pieces of a code including annotations 21 within it or what? I mean, you have to give me 22 a better sense of -- 23 A. Well, it depends. It depends on 24 the circumstances, who is trying to communicate 25 what to whom. 141 1 EDWARD FELTON 2 Q. Right. 3 A. So I can't give a general answer. 4 You see all of these in different 5 circumstances. 6 Q. That is an entire program in code 7 form, that is unexpurgated, unannotated 8 fashion. 9 A. You might see an entire program, 10 you might see a part of the program, you might 11 see the program annotated or described and you 12 might see the program described. You might see 13 it in source code or object code or some other 14 formats. All of those make sense in different 15 circumstances. 16 Q. In your professional experience and 17 based on all the testimony you've given here 18 today in terms of communication, interaction, 19 security testing, reverse engineering, what 20 have you -- 21 MR. GARBUS: I object to the 22 form of the question. It has "what 23 have you" in it. 24 MR. HART: I'm sure you do. 25 Thank you, Mr. Garbus. 142 1 EDWARD FELTON 2 Q. Of the various manners in which 3 code could be presented as you just outlined, 4 how typical is it to have an entire program 5 presented in unannotated code? 6 MR. GARBUS: I object to the 7 form of the word "typical." Go 8 ahead. 9 THE WITNESS: I -- I think it's 10 one of the forms that you commonly 11 see, a whole program not annotated 12 or poorly annotated. 13 Q. I'm sorry, not annotated? 14 A. Not annotated or poorly annotated. 15 Q. What does "poorly annotated" mean? 16 A. Few annotations, maybe inaccurate 17 annotations. 18 Q. And it's poorly annotated for what 19 reason? 20 A. By poorly -- 21 Q. Why is it poor? I'm sorry. 22 A. Perhaps "poorly" wasn't the best 23 word for describing what I meant. What I meant 24 is -- perhaps what I should have said is not 25 annotated or minimally annotated. 143 1 EDWARD FELTON 2 Q. Okay. 3 But in your judgment, minimally 4 annotated would be poorly annotated at some 5 level. And what is -- why is it poorly 6 annotated? 7 A. I think I chose the wrong word when 8 I said poorly. What I meant to convey is 9 there's not much annotation there. 10 Q. Got it. 11 MR. GARBUS: He wasn't using 12 poor to mean not having dollars to 13 it. 14 MR. HART: Of course he wasn't, 15 Mr. Garbus, and I think we all know 16 that. So your comment was really 17 gratuitous and unnecessary. 18 Q. Now, can you tell me, in how many 19 instances with respect to your Web site or the 20 Web site that your group uses at Princeton, 21 that you have posted openly to the public 22 unexpurgated, unannotated object code 23 utilities? 24 A. I can think of a few, a few 25 instances. And here I'm interpreting object 144 1 EDWARD FELTON 2 code as something that can be executed 3 directly. 4 Q. Right. 5 A. Whether through an interp -- 6 executed easily just by sort of double-clicking 7 it regardless of what form it's in. 8 Q. That's the gist of the question. 9 And what were those instances? 10 A. Well, first of all -- actually, let 11 me clarify something with respect to the 12 question. If something is object code or 13 executable code or something which, as I said, 14 can just be double-clicked and run, it's not 15 going to have it in commentary or explanation. 16 It just will be the code that executes. 17 Q. Right. 18 A. It says -- it says what it says. 19 Q. Right. 20 In other words, if you put 21 commentary into what would otherwise be the 22 presentation of object code, you are making the 23 code inoperable in a sense as an immediately 24 executable utility? 25 A. It may not be immediately 145 1 EDWARD FELTON 2 executable if it has -- if it has comments in 3 it. 4 Q. Okay. Got you. Go ahead. 5 A. It might be accompanied by 6 comments. 7 Q. Got you. 8 A. Or there might be comments 9 associated with it somehow. 10 Q. Okay. 11 A. About how to use it. There might 12 be a manual or something. 13 Q. Okay. 14 A. We've done that in a few instances. 15 Q. And you were going to tell me what 16 those instances were. 17 A. Well, I'll give you a couple of 18 examples. I'm not sure I can get them all, but 19 -- we've -- one bit of code that we have made 20 available -- we -- because of what I'll 21 characterize as various lawyer-oriented rules 22 of the university we -- we don't often just 23 give out code without requiring people to agree 24 to some very mild license agreement promising 25 not to sue us if something goes wrong or 146 1 EDWARD FELTON 2 something. 3 So if we are going to distribute a 4 whole program with the expectation that people 5 will run it, it we will require people to -- to 6 agree to some -- to something before they take 7 it. But with that understanding. But we do 8 make it available to anyone who wants it. 9 Q. Who signs the license agreement, 10 the recipient? 11 A. The recipient, yes. And it's 12 pretty much boilerplate type of thing. 13 Q. Is that something that's readily 14 available on a Web site, the license agreement? 15 A. I believe it would be. 16 Q. Okay. 17 A. I'm not positive that it's 18 available. 19 MR. HART: I'd like that 20 produced. And if you get it to us, 21 the quicker the better. 22 MR. GARBUS: Okay. 23 THE WITNESS: Right. 24 Q. Is there a URL that you can give me 25 right now where I might -- 147 1 EDWARD FELTON 2 A. Not off the top of my head, no. 3 Q. Okay. 4 A. And it's our usual practice to do 5 that. I can't say -- to associate that 6 agreement. I can't say we've done it every 7 time. 8 Q. And is there anything that is 9 provided by Princeton University and/or written 10 by its lawyers as you mentioned a minute ago, 11 you said it was lawyer-driven, that explains 12 the policy itself? 13 A. The policy of the University -- 14 well, without going into a long exposition on 15 the University's intellectual property policy, 16 if we -- the rules roughly say that if we want 17 to distribute something which might potentially 18 have commercial value, software, then we need 19 to get permission from the University to do 20 that. And generally that permission is readily 21 given and they might -- the University might 22 ask us to put -- to put -- to require a license 23 agreement that involves, say, a liability 24 disclaimer or something with the code. 25 Q. Okay. Got you. 148 1 EDWARD FELTON 2 A. That's the sort of thing I'm 3 talking about as the license agreement. 4 Q. When you say where software might 5 have a commercial utility or value, what do you 6 mean by that? 7 A. So what I mean is that the 8 University -- if we as researchers create 9 something that has monetary value, the 10 University would like to -- would like to get 11 -- get its share. 12 Q. Got you. 13 A. And so we can't just -- if we have 14 something of commercial value we can't just 15 necessarily release it without at least 16 disclosing to them what it is and so on. And 17 there are a bunch of procedures related to 18 that. That's pretty standard at universities 19 and companies for obvious reasons. 20 Q. Are there any policies or 21 procedures or license -- or other kind of 22 written requirements to your knowledge at 23 Princeton which address potential liability 24 arising from code, i.e., it would cause a 25 disruption of someone's system, virus issues or 149 1 EDWARD FELTON 2 just the potential that it could be misused in 3 some way and that somebody could get sued for 4 that? 5 A. My experience has been that if I go 6 to the university and ask for permission to 7 distribute some kind of software because it 8 might potentially have commercial value, then 9 they will generally, regardless of the nature 10 of that software, ask me to require people to 11 sign some sort of license agreement involving a 12 liability disclaimer regardless of the nature 13 of the software. 14 Q. Whether or not it has commercial 15 value? 16 A. Whether or not they judge it to 17 have commercial value. Just the fact that I 18 have talked to them about releasing it. They 19 will generally ask for it. 20 Q. Did you ever go to anybody at 21 Princeton and ask them for permission to 22 disseminate DeCSS in any form? 23 A. No. 24 MR. HART: I'm sorry. I think 25 we were talking about those 150 1 EDWARD FELTON 2 instances where you had posted or 3 caused to be posted to you or your 4 group's Web site at Princeton what 5 I was calling unexpurgated code in 6 the form of an immediately-executed 7 utility. And I think you were 8 going to give me examples of those 9 instances where you had done that, 10 and you started to explain the 11 license procedure. Continue to do 12 that, please. 13 A. Sure. So let me start with one 14 example. It was something called the JAVA 15 filter which was -- which you can think of as 16 being an add-on browser that provides some 17 additional security functionality. 18 Q. Okay. 19 A. It was -- if you installed this 20 thing on a certain version of a certain browser 21 it would give you the ability to have more 22 control over which Java Applets your browser 23 would execute, and that has security 24 implications. 25 Q. Got you. Okay. 151 1 EDWARD FELTON 2 A. So we had developed that as a 3 research projet, and we made it available to 4 the public from our Web site. That's one 5 example. 6 Q. Okay. 7 A. I'm trying to think of some more 8 examples. We -- another example -- I -- I'm 9 not thinking of another example coming out of 10 our lab -- 11 Q. Okay. 12 A. -- although I'm sure there are some. 13 But releasing the software in this way is a 14 routine practice and lots of people in our 15 department have done it. 16 Q. Okay. 17 To your knowledge, have any 18 computer crimes been committed affecting 19 Princeton's computer systems? 20 MR. GARBUS: Object to the form 21 of the question. But you can 22 answer if you know. 23 A. Yes. 24 Q. Can you tell me just briefly what 25 you know about that? 152 1 EDWARD FELTON 2 A. Well, so with the qualification 3 that I'm not going to make -- I'm not going to 4 make expert decisions about what's a crime and 5 what's not. 6 Q. Correct. Absolutely. And I don't 7 want a legal conclusion. 8 A. Based on a common sense 9 understanding, yes, there have been virus -- 10 there have been viruses, there have been 11 instances of people breaking into various 12 computer systems. 13 Q. Are these students, typically, or 14 outsiders or both? 15 A. I do not know of any instances of 16 students doing it. 17 Q. Okay. Okay. 18 A. I don't know if I would have -- 19 Q. Yeah, I understand. 20 A. -- had that occurred, but I do know 21 of a number of instances in which people 22 apparently from the outside broke into 23 Princeton's system as well as the viruses. 24 Q. Do you know if they were prosecuted 25 or any action was taken against them? 153 1 EDWARD FELTON 2 A. I don't know. I wouldn't know if 3 they had. It's not my department -- 4 Q. Got you. 5 A. -- to go after those people. 6 Q. Okay. 7 Were you consulted at all in any 8 connection in terms of the integrity of the 9 system or the forensics or any of the other 10 things you mentioned earlier about law 11 enforcement issues relative to computers and 12 computer crime? 13 A. With respect to crimes at Princeton 14 -- yes, actually. 15 Q. And in which instances were you 16 consulted? 17 A. I'm thinking in particular of the 18 Melissa virus. 19 Q. Okay. 20 A. In that case I was consulted by the 21 FBI and by the U.S. Attorney's office. 22 Q. Okay. 23 Are you aware of Napster? 24 A. Yes. 25 Q. How are you aware of it? 154 1 EDWARD FELTON 2 A. Articles about it in the press 3 primarily. Discussions with people. 4 Q. Were those discussions confined to 5 computer specialists or did they also include 6 laypeople? 7 A. I think I've had discussions with 8 both, specialists and laypeople. 9 Q. Okay. 10 Are you aware whether Princeton has 11 encountered any problems as a result of 12 students using Napster at Princeton? 13 A. I don't know. 14 Q. You are not aware of any? 15 A. I'm not aware of -- of any. 16 Q. Okay. 17 A. Of any problems. 18 MR. HART: I'm not clear what 19 we are doing on the record at this 20 point, because Mr. Garbus' phone 21 rang while you were answering my 22 question and he's now stood up and 23 taken a phone call. So I'm not 24 going to ask you any questions 25 until Mr. Garbus resumes his 155 1 EDWARD FELTON 2 appearance here. 3 Are we back? 4 MR. GARBUS: Yes. 5 MR. HART: Thank you. 6 Q. Now, you co-authored a piece with 7 Professor Appel that was submitted to the 8 Copyright Office in connection with the 9 rule-making inquiry, correct? 10 A. Yes. 11 Q. And who prompted the writing of 12 that piece? 13 A. I think -- the actual writing was a 14 collaborative effort. I think I'm the one who 15 first raised the topic of the Copyright Office 16 soliciting comments. 17 Q. Okay. 18 And how did you become aware of the 19 Copyright Office proceeding? 20 A. I don't remember. 21 Q. Do you think it may have been as a 22 result of any communications you've had about 23 this case? 24 A. No, not as a result of this case, 25 because we worked on that document before I had 156 1 EDWARD FELTON 2 any involvement in this case. 3 Q. Okay. 4 Had you followed the legislative 5 process with respect to the enactment of the 6 Digital Millennium Copyright Act? 7 A. Yes. 8 Q. Did you ever submit any testimony 9 or views in connection with that legislative 10 process? 11 A. Yes. I signed a letter to -- I 12 believe it was to various members of Congress 13 or -- and/or Senators -- 14 Q. Right. 15 A. -- which was signed by a large 16 number of computer security experts, I guess. 17 Q. Okay. 18 And what was the gist of that 19 letter? 20 A. It was a concern about the -- about 21 the effect of the -- of what was then the 22 current draft of the Digital Millennium 23 Copyright Act, and the effect of that on the 24 ability of people like me to do computer 25 security research and to disseminate the 157 1 EDWARD FELTON 2 results of that -- of that research. 3 Q. And specifically, was it the 4 circumvention or that type of proposed 5 circumvention legislation that was part of the 6 DMCA that was the focus? 7 A. The -- the circumvention aspect of 8 the DMCA was -- was at least one of the main 9 topics of the letter. 10 Q. I'm only saying this, not to 11 belabor the point, but because the DMCA as you 12 may know includes a number of different 13 components, and I'm not interested, unless you 14 feel you are going to testify or you may 15 testify, on subjects like ISP liability and 16 boat hull protection and some of the other 17 things that were in the DMCA. 18 A. No, it was -- it was not about any 19 of those topics that you mentioned. 20 Q. Okay. Fine. 21 A. It was primarily in the area of the 22 anticircumvention requirements and the things 23 that are connected to or close to the -- some 24 of the issues in this case. 25 Q. Okay. 158 1 EDWARD FELTON 2 And I'm sorry, the view again, that 3 was expressed generally speaking was? 4 A. Was -- the view -- generally, the 5 view of the -- of the letter and the concern 6 that we were trying to raise was that -- was a 7 concern that the DMCA would make it either 8 impossible or more difficult to do computer 9 security research that involves reverse 10 engineering and studies of vulnerabilities and 11 so on, and also about the effect of the DMCA as 12 it was then on -- on -- dissemination of -- of 13 research results and interaction among 14 researchers and between researchers and other 15 people. 16 Q. Got you. 17 And can you place a rough time 18 frame on when this letter was submitted? 19 A. I'm not sure I can tell you the 20 time frame. I can tell you when it was 21 relative to the passage after the DMCA. 22 Q. Okay. 23 A. It was -- it was within a few 24 months before the DMCA passed. 25 Q. Okay. 159 1 EDWARD FELTON 2 And to your knowledge, were there 3 further bills or proposed bills for the 4 circumvention aspects of the DMCA that were 5 under consideration after the date that you 6 submitted your letter? 7 A. You are referring to bills relating 8 to the DMCA, other -- other bills relating to 9 the DMCA? 10 Q. I'm sorry. And it may have been my 11 question. I apologize. 12 Without yet drawing any conclusion 13 as to what effect your letter may have had on 14 the Congressional legislative process, I'm 15 simply asking you whether you are aware that 16 there was further bill writing and bill 17 proposals with respect to the DMCA and its 18 circumvention provisions that -- that were done 19 or made after the date of your letter. 20 A. My understanding is that when we 21 submitted the letter, the process of writing or 22 editing or whatever the term is, determining 23 the final form of the DMCA was still going on. 24 Q. Okay. 25 And are you aware whether, in fact, 160 1 EDWARD FELTON 2 there were any changes made in the bills or the 3 proposed legislation after the date of your 4 letter with respect to any of the topics that 5 you covered in your letter? 6 A. After the date of the letter there 7 was a -- an exclusion for -- a very limited 8 exclusion for cryptographic research put into 9 the DMCA which, in my opinion at least, was not 10 enough to address -- it was better than nothing 11 but not enough to address -- fully address the 12 concerns that we raised in the letter. 13 Q. And this was for cryptographic 14 research you said? 15 A. It's a -- yes, it's a limited 16 exclusion for cryptographic research. Which, 17 as I said, I think did not go far enough to 18 protect the issues that we were discussing. 19 Q. I understand. 20 And you say that at the time you 21 submitted the letter no such exclusion existed 22 in the legislation you were commenting on at 23 the time? 24 A. It's a little bit hard to tell 25 because there were various drafts and so on. 161 1 EDWARD FELTON 2 Q. Right. 3 A. And it's not easy for an average 4 person to get access to the up-to-the-minute 5 draft of the bill. 6 Q. Got you. 7 A. But there were at least some 8 versions floating around at the time that we 9 submitted the letter which did not have such an 10 exclusion. 11 Q. Did you weigh in any respect in 12 your letter on any other kinds of proposed 13 exclusions or modifications to the bill or 14 bills in respect to anything relating to 15 circumvention? 16 A. I don't recall whether we 17 specifically commented on language in a bill. 18 We raised the issues that I described before in 19 general. 20 Q. Right. Okay. 21 A. And one of the goals of the letter 22 was to make sure that the people who were 23 writing the legislation understood what the 24 values were that we were concerned about. 25 Q. I understand. And I apologize if 162 1 EDWARD FELTON 2 my last question was unclear. I wasn't talking 3 necessarily about commenting on particular 4 language in the bill. But you mentioned that 5 one of the subjects in your letter had been 6 encryption research and the need to address 7 that in some way in the proposed legislation, 8 right? 9 A. No, I don't think -- 10 Q. I'm sorry. 11 A. Let me -- let me characterize that 12 in a different way. 13 Q. Okay. Fine. 14 A. There was a concern that particular 15 -- well, there were many concerns, but the -- 16 one of our desires was to -- in fact, to make 17 sure that the people working on the bill 18 understood that -- that computer security 19 research in general was at risk in the process 20 of writing the bill. Not just encryption, but 21 other forms of -- of security, as well. 22 Q. Like security testing, you mean? 23 A. Well, there -- there are different 24 methods -- different kinds of technologies that 25 people use to try to protect or establish 163 1 EDWARD FELTON 2 security, and encryption is only one of them. 3 Q. Okay. 4 What are the others? 5 A. Access control. 6 Q. Right. 7 A. Physical security. 8 Q. Right. 9 A. Various kinds of software methods 10 for limiting and enforcing restrictions on what 11 programs can do. Encryption is only one 12 subarea of security. 13 Q. Okay. 14 A. And so we wanted to make sure that 15 they had understood that this was not just 16 about encryption, but about security in 17 general. 18 Q. Okay. 19 A. That was one of the concerns. 20 Q. What I'm trying to do -- and again, 21 I'll make my agenda here plain -- is to get at 22 what subjects you covered in the letter and 23 what Congress ultimately did, whether or not 24 there was a causal connection between your 25 letter and what Congress did. And if we can do 164 1 EDWARD FELTON 2 that simply by topic -- I mean, you mentioned, 3 for example, that your letter addressed certain 4 concerns and that ultimately there was a 5 provision and exception, I think you may have 6 used the word, or exclusion, put into the bill, 7 although I think you said you weren't entirely 8 happy with its scope respecting encryption 9 research. I'm trying to get at what other 10 topics you addressed respecting circumvention 11 in your letter and what, to your knowledge, 12 occurred in respect to the passage of the -- 13 the law on those subjects. Does that help? 14 A. Sure. 15 Q. Okay. 16 A. So the letter talked in general 17 about what we were concerned about, it talked 18 about the value of reverse engineering. 19 Q. Okay. 20 A. It talked about the value of being 21 able to do and study circumvention. 22 Q. Okay. 23 A. It talked about how -- talked about 24 the difference, I believe, between 25 circumvention and copyright infringement. 165 1 EDWARD FELTON 2 Q. Okay. 3 A. And a number of related issues like 4 that. I believe there may have been some 5 concerns in the letter, specifically about 6 things that were in the current version of the 7 bill. 8 Q. The then current version of the 9 bill? 10 A. The then current version of the 11 bill. 12 Q. Right. 13 And to your knowledge, were there 14 any additional exclusions put into the 15 legislation as it was finally enacted after 16 your letter, whether or not you can say it was 17 as a result of your letter? 18 A. I don't recall there being any 19 other, I guess what I'd call helpful changes to 20 the bill after the letter. 21 Q. Okay. 22 Do you recall if there is an 23 exclusion for reverse engineering in the 24 legislate as enacted? 25 A. There -- I know that there are some 166 1 EDWARD FELTON 2 -- I know that there's some language in the 3 bill that protects reverse engineering for 4 certain purposes. 5 Q. Okay. 6 A. But I can't tell you specifically 7 what those are. 8 Q. Okay. That's fine. 9 Under whose auspices was this 10 letter submitted? Was it on behalf of a 11 particular society or a group of societies? 12 A. It was signed by a group of 13 individuals. 14 Q. Okay. 15 A. It was a fairly large group. It 16 may have been 50 or more. Some from 17 universities, some from societies, some from 18 companies and perhaps some from government, 19 although I'm not -- I'm not sure about that. 20 Q. Okay. 21 A. In most cases speaking as 22 individuals. 23 Q. Okay. 24 A. But many of the leading experts in 25 security research signed the letter. The goal 167 1 EDWARD FELTON 2 was to sort of give the -- give the people 3 working on the bill something which represented 4 the opinion of -- the sort of majority opinion 5 of experienced security researchers. 6 Q. Okay. 7 Now, with respect to the article 8 that you and Professor Appel wrote that got 9 submitted to the Copyright Office or the 10 Library of Congress in connection with the 11 Copyright Office rule-making proceeding, what 12 was your purpose in submitting that? 13 A. Well, there's a point of view 14 expressed in the -- in the -- in our 15 submission, and we wanted to make sure that 16 they -- they heard that point of view, that -- 17 that people understood that -- that 18 technological access control which prevents 19 researchers from getting at the raw bits of 20 digital works does prevent certain kinds of 21 valuable research on those works, valuable and, 22 as far as we -- as far as we know, legal 23 research on those works. 24 Q. Okay. 25 And -- 168 1 EDWARD FELTON 2 A. And specifically -- if I could go 3 on with that answer. 4 Q. You bet. Sure. Sure. 5 A. The solicitation for comments that 6 -- that was put out specifically asked for 7 information about the effect of the 8 anticircumvention provisions on research and 9 scholarship. And so we wanted to speak to that 10 part of the solicitation. 11 Q. Okay. 12 So, in other words, the Library of 13 Congress had solicited comments as part of an 14 ongoing legislative process to your 15 understanding? 16 A. My understanding is when the DMCA 17 was passed that the Library of Congress was 18 directed or authorized to do -- to make 19 findings at some point later in time, and that 20 this was the process of their -- of their 21 deciding what findings to make. 22 Q. Okay. 23 And that's the general purpose for 24 which you and Professor Appel submitted your 25 piece, namely in furtherance of the taking of 169 1 EDWARD FELTON 2 comments by the Library of Congress as part of 3 the legislative process? 4 A. That's why we submitted it to the 5 Library of Congress, yes. 6 Q. Got you. 7 MR. HART: I would like to have 8 a copy of that letter if I didn't 9 already ask for it, and I -- I 10 really want to thank you for your 11 time and your candor. Thank you. 12 MR. GARBUS: Thank you very 13 much. 14 MR. HART: You are quite 15 welcome. 16 MR. GARBUS: We are done. 17 THE VIDEOGRAPHER: Off the 18 record, 2:02. 19 (Time noted: 2:02 p.m.) 20 ______________________________ EDWARD FELTEN 21 22 Subscribed and sworn to before me on 23 this_____day of____________________, 2000. 24 _______________________________ 25 Notary Public 170 1 2 STATE OF NEW YORK ) ) ss: 3 COUNTY OF NEW YORK ) 4 I wish to make the following changes, for 5 the following reasons: 6 7 PAGE LINE 8 ____ ____ CHANGE: __________________________ 9 REASON: __________________________ 10 ____ ____ CHANGE: __________________________ 11 REASON: __________________________ 12 ____ ____ CHANGE: __________________________ 13 REASON: __________________________ 14 ____ ____ CHANGE: __________________________ 15 REASON: __________________________ 16 ____ ____ CHANGE: __________________________ 17 REASON: __________________________ 18 ____ ____ CHANGE: __________________________ 19 REASON: __________________________ 20 ____ ____ CHANGE: __________________________ 21 REASON: __________________________ 22 ____ ____ CHANGE: __________________________ 23 REASON: __________________________ 24 ___________________________ ____________ 25 WITNESS' SIGNATURE DATE 171 1 2 CERTIFICATION 3 4 I, MICHELE ANZIVINO, a Notary 5 Public in and for the State of New York, do 6 hereby certify; 7 THAT the witness whose 8 testimony is hereinbefore set forth, was duly 9 sworn by me; and 10 THAT the within transcript is a 11 true record of the testimony given by said 12 witness. 13 I further certify that I am not 14 related, either by blood or marriage, to any of 15 the parties to this action; and 16 THAT I am in no way interested 17 in the outcome of this matter. 18 IN WITNESS WHEREOF I have 19 hereunto set my hand this 7th day of July, 20 2000. 21 22 ____________________________ MICHELE ANZIVINO 23 24 25