See related files: (EFF Archive) (Cryptome Archive) (2600 Archive) (Harvard DVD OpenLaw Project)

Chris J. DiBona Deposition, in MPAA v. 2600

CA; July 8, 2000

      7                            Plaintiffs,   
          vs.                                   NO. 00 Civ. 0277 
      8                                         (LAK)
     14   DATE:          July 8, 2000
     15   DAY:           Saturday
     16   TIME:          9:59 a.m.
     17   PLACE:         Weil, Gotshal & Manges LLP
                         2882 Sand Hill Road, Second Floor
     18                  Menlo Park, California
     19   PURSUANT TO:   Subpoena
                         CSR No. 10772
     22   ______________________________________________________
     23   COMP-U-SCRIPTS
     24   1101 South Winchester Blvd., Suite D-138
          San Jose, California 95128
     25   (408) 261-9795


      1   APPEARANCES:
      2   For the Plaintiffs:      PROSKAUER ROSE LLP
                                   BY:  CARLA MILLER,
      3                            ATTORNEY AT LAW
                                   1585 Broadway
      4                            New York, NY  10036
                                   (212) 969-3713
          For the Defendants:      FRANKFURT GARBUS KURNIT 
      6                            KLEIN & SELZ
                                   BY:  EDWARD HERNSTADT
      7                            ATTORNEY AT LAW
                                   488 Madison Avenue
      8                            New York, NY  10022 
                                   (212) 826-5582
          The Videographer:        McMAHON & ASSOCIATES
     10                            BY:  LOU MEADOWS
                                   One Almaden Boulevard
     11                            Suite 829
                                   San Jose, CA 95113
     12                            (408) 298-6686


      2                                                Page
      3   By Ms. Miller                                  5
      7                      INDEX OF EXHIBITS
      8   Plaintiff's                                  Page
      9   1    Subpoena in a Civil Case                 26  
     10   2    Declaration of Chris DiBona in           44
               Opposition to Plaintiffs' Motion 
     11        to Modify the Preliminary Injunction 
               and in Support of Defendants' 
     12        Cross-Motion to Vacate the 
               Preliminary Injunction


      1                           --oOo--
      2            THE VIDEOGRAPHER:  We are going on the 
      3   record.  The time on the screen is 9:59 a.m.  Today's 
      4   date is Saturday, July 8, 2000.  We are located at the 
      5   offices of Weil, Gotshal & Manges, 2882 Sand Hill Road, 
      6   Menlo Park, California.
      7             This is tape 1 of the videotaped deposition 
      8   of Chris DiBona.  The case name is Universal City 
      9   Studios versus Corley et al., venued in the U.S. 
     10   District Court for the Southern District of New York.  
     11   The case number is 0277 LAK.
     12             My name is Lou Meadows, legal video 
     13   specialist and notary, representing McMahon & 
     14   Associates, One Almaden Boulevard, Suite 829, San Jose, 
     15   California 95113.
     16             The court reporting firm is Comp-U-Scripts. 
     17   The court reporter is Karen Buchanan.
     18             Counsel, please state your name, your office 
     19   and whom you represent in this action.
     20            MS. MILLER:  Carla Miller from the law firm of 
     21   Proskauer Rose in New York, New York, representing all 
     22   plaintiffs.
     23            MR. HERNSTADT:  Edward Hernstadt from 
     24   Frankfurt Garbus Kurnit Klein & Selz representing the 
     25   defendants in this action. 


      1            THE VIDEOGRAPHER:  Are there any stipulations 
      2   you wish to put on the record at this time?
      3            MR. HERNSTADT:  Do you want to do the usual 
      4   stips?
      5            MS. MILLER:  The usual stips is fine. 
      6            THE VIDEOGRAPHER:  Please swear in the 
      7   witness.  
      8                       CHRIS J. DiBONA,
      9             being first duly sworn by the
     10             Certified Shorthand Reporter to tell
     11             the truth, the whole truth, and nothing
     12             but the truth, testified as follows:
     13                  EXAMINATION BY MS. MILLER:
     14        Q.  Mr. DiBona, good morning.  As you know, my 
     15   name is Carla Miller.  I'm an attorney representing the 
     16   plaintiffs in this lawsuit.
     17             Have you ever been deposed before?
     18        A.  No.
     19        Q.  Have you ever testified in any court 
     20   proceeding?
     21        A.  No.
     22        Q.  You understand that you've just been sworn to 
     23   tell the truth under oath, and a deposition is a court 
     24   proceeding.  And so I'll be asking you questions and 
     25   you'll be giving me answers to the best of your 


      1   knowledge or recollection, truthful answer, of course, 
      2   just as if we were sitting in a court, even though we 
      3   are in the offices of a law firm and feel somewhat 
      4   informal.  Your deposition is, of course, being 
      5   videotaped, and also the court reporter sitting to your 
      6   right is taking down everything we say.
      7             So just as a matter of housekeeping, it's 
      8   always better if you wait for me to complete my 
      9   question so that the court reporter can take down 
     10   accurately what I've said.  In turn, I will wait for 
     11   you to complete your answers before moving on to the 
     12   next question, and we will proceed from there.
     13            If ever you need to take a break or if 
     14   Mr. Hernstadt wishes to take a break, just let me know 
     15   that and we'll do that.
     16            What is your home address?
     17        A.  Currently it's 1334 Holly Avenue, Los Altos, 
     18   California, 94024.
     19            MR. HERNSTADT:  Do you want to make that 
     20   confidential?  
     21            THE WITNESS:  That's fine.  I'll be moving in 
     22   about two weeks. 
     23            MR. HERNSTADT:  You know how those internet 
     24   people are.
     25            THE WITNESS:  They're my friends.


      1   BY MS. MILLER:
      2        Q.  Are you employed currently?
      3        A.  Yes.
      4        Q.  By who?
      5        A.  VA Linux Systems of Sunnyvale, California.
      6        Q.  And what is the address for VA Linux Systems?
      7        A.  1382 Bordeaux Avenue, and it's Sunnyvale, so 
      8   it's 94089.
      9        Q.  How long have you worked for VA Linux Systems?
     10        A.  Since November of 1998.
     11        Q.  Did you work prior to November of 1998?
     12        A.  Yes.
     13        Q.  And where did you work prior to November of 
     14   1998?
     15        A.  For about six months before '98, I was an 
     16   independent consultant and was one of the founders of a 
     17   cryptography firm that did not get funded.
     18        Q.  What was the name of that firm?
     19        A.  Strong Crypto, Incorporated.  
     20        Q.  I'm sorry?
     21        A.  Strong Crypto.
     22        Q.  Strong Crypto?
     23        A.  Yeah.
     24        Q.  And you said it did not get funded.
     25        A.  Yeah.


      1        Q.  Were you looking for investors for Strong 
      2   Crypto?
      3        A.  Yes, we were.
      4        Q.  Were there any other founders of Strong 
      5   Crypto?
      6        A.  Yes.
      7        Q.  How many?
      8        A.  Three.
      9        Q.  What were their names or are their names?
     10        A.  Arthur Tide, Dave Sifrey, and Dave LaDuc. 
     11            MR. HERNSTADT:  Is there any reason that you 
     12   want to make that confidential?  We can do that.
     13            THE WITNESS:  No, I don't see any reason why.  
     14   It will be an interesting bit of trivia for some 
     15   people.
     16   BY MS. MILLER:
     17        Q.  And how long was Strong Crypto in business?
     18        A.  Three months.  I'd have to go back to my 
     19   records and check for sure.
     20        Q.  And did the company perform any consulting 
     21   projects for any customers during that three-month 
     22   period of time?
     23        A.  I don't think there were any revenue 
     24   customers.  I think there may have been a couple of 
     25   sort of trials, but nothing that would have made us any 


      1   money.
      2        Q.  You say you think there were a couple of 
      3   trials?
      4        A.  Yeah.
      5        Q.  Two or three?
      6        A.  Probably two.  Again, I'd have to go back.  
      7   It's been a while.  And that wasn't really part my part 
      8   of the company.
      9        Q.  What was your part of the company?
     10        A.  I was there as a programmer while working on 
     11   the architecture of the cryptography program we were 
     12   working on.
     13        Q.  How many other employees of Strong Crypto were 
     14   there at the time --
     15        A.  None.
     16        Q.  -- while it was in existence?
     17             None?  Just the four of you, yourself, Arthur 
     18   Dave and Dave?
     19        A.  Yep.
     20        Q.  Prior to your involvement with Strong Crypto, 
     21   did you work before that?
     22        A.  Yes.
     23        Q.  Where did you work?
     24        A.  I was at Tandem Computers.
     25        Q.  And which office of Tandem Computers, here in 


      1   Cupertino?
      2        A.  Right here in Cupertino on Tantau Avenue.
      3        Q.  How long were you at Tandem Computers?
      4        A.  Probably about two years.
      5        Q.  Can you give me the specific dates?
      6        A.  No.  I'd have to go back to my records.
      7        Q.  Okay.  What years, then?
      8        A.  I guess it would go until about '96 through 
      9   early '98.  But again, I'd have to check.
     10        Q.  And what did you do for Tandem Computers?
     11        A.  I worked on smart card identification methods 
     12   for a certificate authority product, not certificate --  
     13   a product for the Singapore government based on the 
     14   Entrust CA; E-N-T-R-U-S-T.  Not T.
     15            THE VIDEOGRAPHER:  Can I get you to raise your 
     16   microphone about three inches?  It's scraping a little 
     17   bit on your shirt.
     18            MR. HERNSTADT:  Raise it?
     19            THE VIDEOGRAPHER:  Yeah.
     20            MR. HERNSTADT:  I've got to lower it.  How's 
     21   that?
     22            MS. MILLER:  Could I have the last answer read 
     23   back, please?  
     24            (The record was read by the Reporter.)
     25            THE WITNESS:  E-N-T-R-U-S-T is the name of the 


      1   company that it was based on.  It was their product 
      2   that we were modifying for the Singapore government.
      3   BY MS. MILLER:
      4        Q.  What is a "certificate authority"?  That's 
      5   what I wanted to clarify in having your last answer 
      6   read back.
      7        A.  Well, it's fairly complex and has nothing 
      8   really to do with this.  So if you really want to get
      9   into this, it will take a while.
     10        Q    Tell me.
     11        A    A certificate authority -- okay, so if you 
     12   have a key which is used to encrypt data, a certificate 
     13   authority is something that creates something called an 
     14   X509 certificate.
     15        Q.  An X509?
     16        A.  Yeah, which you can then use to authenticate 
     17   and encrypt transactions between, say, databases or 
     18   people.  Simply put, it's so you can do secure 
     19   communications in a way that guarantees the person 
     20   doing that communication.
     21        Q.  That guarantees the person doing that 
     22   communication, you mean authenticates the person that's 
     23   engaging in communication?
     24        A.  Yeah.  Authenticates the person and encrypts 
     25   the transmission using the certificate.


      1        Q.  That wasn't so complex.
      2        A.  It's more than that, but it's hard to 
      3   describe.
      4        Q.  I appreciate the explanation.  Thank you.
      5             Prior to your working at Tandem Computers, 
      6   were you employed?
      7        A.  Yeah.
      8        Q.  What was your job prior to Tandem?
      9        A.  I was the e-mail administrator for a law firm 
     10   in Washington D.C., Howrey & Simon.
     11        Q.  And how long did you work at Howrey & Simon?
     12        A.  About a year.
     13        Q.  So that would be 1995 through 1996?
     14        A.  Roughly. 
     15        Q.  Was that your sole responsibility at Howrey & 
     16   Simon?
     17        A.  Yes.
     18        Q.  E-mail administrator?
     19        A.  There were about 1200 clients.
     20        Q.  1200 clients of the law firm or 1200 -- 
     21        A.  Of the mail software.
     22        Q.  And prior to Howrey & Simon, were you 
     23   employed?
     24        A.  Yeah, over at the United States Department of 
     25   State in the Office of Information Management where I 


      1   evaluated cryptography products for the government.
      2        Q.  And when were you employed at the Department 
      3   of State?
      4        A.  I was employed there for about a year and a 
      5   half, two years before Howrey & Simon.
      6        Q.  For the entire time, that year-and-a-half to 
      7   two-year period, were you working in the Office of 
      8   Information Management --
      9        A.  Yes.
     10        Q.  -- for the Department of State?
     11             And prior to that, were you employed?
     12        A.  Yeah, but it was retail jobs before then.
     13        Q.  Did you attend college?
     14        A.  Yes.
     15        Q.  What college?
     16        A.  I attended NOVA, which is a community college 
     17   in Virginia, for my associates degree, and I attended 
     18   but did not complete my computer science degree over at 
     19   George Mason.
     20        Q.  George Mason University?
     21        A.  Uh-huh.  I had one class left.
     22        Q.  When did you obtain your associates degree 
     23   from NOVA Community College?
     24        A.  Gee.  That's a good question.  Probably about 
     25   '92 or '91.  No, '93 probably.  I'd have to go back.  


      1   I've got the certificate at home.
      2        Q.  And what was your field of study at NOVA 
      3   Community College?
      4        A.  Computer science.
      5        Q.  And when did you start at George Mason 
      6   University?
      7        A.  Again, when I was done with NOVA, so I'd say 
      8   probably around '93, '91, '92.  Probably '93, though.
      9        Q.  And how long did you attend George Mason 
     10   University?
     11        A.  I was a full-time student from -- probably 
     12   until about '95 or '96 when I moved.  I'd have to check 
     13   my calendar.  I moved with one class left, so...
     14        Q.  Were you working towards a Bachelor of Science 
     15   degree?
     16        A.  Mm-hmm, in computer science.
     17        Q.  Did you take any classes in programming 
     18   languages?
     19        A.  Yes.
     20        Q.  Which programming languages?
     21        A.  Specifically, C, I took a survey course that 
     22   included ADA, Pascal, C, Assembly and a couple of 
     23   others that escape me.  I also took a class that 
     24   focused on the Scheme language, that's S-C-H-E-M-E, I 
     25   believe.  It's been a long time.  And that pretty much 


      1   is it.
      2            I've also done a lot of work with the assembly 
      3   languages.
      4        Q.  I'm sorry, assembly language?
      5        A.  Yeah, in one of the classes. 
      6        Q.  Just so the record is clear, what is assembly 
      7   language?
      8        A.  That's a very good question.  It depends on 
      9   the context.
     10             When I was doing it, it was the -- it was the 
     11   MAKR assembly language, which means that the language 
     12   compiler went through certain steps to make it easier 
     13   to program assembly.
     14             Assembly is sort of a step up from machine 
     15   code, which is referenced by the operating system.  So 
     16   assembly language when I did it was basically the MAKR 
     17   assembly version of assembly language, precompiled, 
     18   done before you compile it to machine code.
     19        Q.  Now, Mr. DiBona, do you understand that you 
     20   have been identified as an expert witness in this case?
     21        A.  Yes.
     22        Q.  And how was that understanding derived?  In 
     23   other words, what I mean is who first approached you to 
     24   testify as an expert witness in this case?
     25        A.  I'm going to have to defer to Ed. 


      1            MR. HERNSTADT:  You can't.
      2   BY MS. MILLER:
      3        Q.  What's your recollection?
      4        A.  I helped out the FF with their -- with a case 
      5   out here on December 7th or December 9th.  No.  
      6   December 22nd.  It was a different case regarding the 
      7   DVD controversy.  And through that, I was exposed to 
      8   Marty Garbus and Edward Hernstadt over at FGKS.  And 
      9   that led to me writing a declaration for the trial.
     10        Q.  When you say "the case out here," are you 
     11   referring to the lawsuit brought by the DVD Copy 
     12   Control Association --
     13        A.  Yes.
     14        Q.  -- against various individuals and Santa Clara 
     15   Corp.?
     16        A.  Yes.
     17        Q.  And what was your involvement in that case?
     18        A.  I helped organize the local free software  
     19   community to come and attend the case and to hand out 
     20   pamphlets outside so people knew what was going on 
     21   inside of the courtroom.  
     22        Q    When you say the "local free software 
     23   community," do you mean in Northern California?
     24        A.  I mean specifically the Bay Area. 
     25        Q.  Okay.  What pamphlets did you hand out for 


      1   the case?
      2        A.  There were a couple of them.  There was the 
      3   one-pager that 2600 came up with.  I think that was -- 
      4   there was that one.  There was the copy of the source 
      5   code itself to CSS-auth.  We also handed out T-shirts 
      6   that were made by CopyLeft that had the DVD CSS 
      7   software source code on it.  And that was the limit of 
      8   what we handed out.
      9        Q.  When you say the one-pager that 2600 came up 
     10   with, what is 2600?
     11        A.  2600 is a magazine dedicated to exploring 
     12   locks, crypto systems, computer security.
     13        Q.  Did you still have copies of that pamphlet?
     14        A.  Somewhere.  If not, I could print another one 
     15   out.  They're readily available on the net.
     16        Q.  What is CSS-auth?
     17        A.  CSS-auth is a piece of code in C that is 
     18   designed to go through the authentication step for the 
     19   copyright, the content scrambling system that's used in 
     20   the DVD.
     21        Q.  And when you say "piece of code," what do you 
     22   mean by that?
     23        A.  Well, in this case, it's a text file that 
     24   contains code that you use in another program using the 
     25   language C to access the DVD stuff.


      1        Q.  So by "code," do you mean that it's actually a 
      2   computer program or a portion of a computer program 
      3   written in the C programming language?
      4        A.  It's a portion. 
      5        Q.  Mr. DiBona, as I've explained to other 
      6   witnesses in this case, again, I am going to be asking 
      7   you questions obviously about a lot of technical areas.  
      8   And I understand that you obviously have a background 
      9   in computer science.  So some of the questions that I 
     10   ask you might seem somewhat elementary or facetious, 
     11   but you have to understand that we're making a record 
     12   so that anyone who picks up this transcript will have 
     13   an understanding of what you and I are talking about 
     14   when we talk about some of these relatively arcane 
     15   things to those people.  I really don't mean to torture 
     16   you.
     17        A.  You're not.
     18        Q.  But if I ask you to clarify some of the 
     19   acronyms or something that might seem basic to you, I 
     20   just wanted to explain that that's why I'm doing that.
     21            What areas of expertise were you asked to 
     22   testify about for purposes of this case?
     23        A.  Well, primarily my role as a Linux software 
     24   advocate, and also the actual mechanisms used in using 
     25   DeCSS and just how it operates, how it works.  Those 


      1   are my focuses. 
      2            MR. HERNSTADT:  Like so many of our witnesses, 
      3   Mr. DiBona is sort of -- is also a mixed fact and 
      4   expert witness. 
      5   BY MS. MILLER:
      6        Q.  So your two areas of expertise, as I 
      7   understand your last answer, is your role as a Linux 
      8   software advocate and also just in testifying about the 
      9   mechanisms used or how actually DeCSS works?
     10        A.  Yes. 
     11            MR. HERNSTADT:  And insofar as he's getting 
     12   into DeCSS as a program, obviously, he's got expertise 
     13   in computer programming. 
     14            THE WITNESS:  Bruce did an expert -- did he 
     15   do a declaration?  Yeah?
     16            MS. MILLER:  Mr. DiBona, I'm going to ask you 
     17   not to have a private conversation with Mr. Hernstadt 
     18   while we're on the record.  If you need to speak to 
     19   Mr. Hernstadt while we're on a break, that's absolutely 
     20   fine.  But during the course of the actual deposition, 
     21   if you could direct all of your comments to me, and 
     22   I'll direct all of my questions to you.
     23   BY MS. MILLER:
     24        Q.  Did you prepare any report, an expert report 
     25   for submission to the judge in this case?


      1        A.  Yes.
      2        Q.  You did?  Where is that report?
      3        A.  It was submitted to the judge.  I think we 
      4   have a couple of copies here.
      5        Q.  Are you referring to the declaration --
      6        A.  Yes.
      7        Q.  -- that you submitted?  Okay.  We'll get to 
      8   that, then.
      9             So apart from the declaration that you've 
     10   already submitted in the case --
     11        A.  Yes.
     12        Q.  -- are you preparing any other reports for 
     13   submission at the trial?
     14        A.  Not at this time.
     15        Q.  Have you been asked to prepare any reports for 
     16   submission at trial?
     17        A.  No. 
     18        Q.  Are you being compensated for your 
     19   involvement in this case?
     20        A.  No.
     21        Q.  Will you be attending the trial in this case?
     22        A.  Yes.
     23        Q.  Will anyone be paying your travel expenses?
     24        A.  No.
     25        Q.  So we've touched on it a little bit already, 


      1   but can you tell me again who was the first person from 
      2   Frankfurt Garbus Klein & Selz to contact you 
      3   specifically about getting involved in this lawsuit?
      4        A.  I think it was Marty Garbus.  I'd have to go 
      5   back in my records and check, though, to be sure.
      6        Q.  Do you remember the time frame for that 
      7   contact?
      8        A.  Boy.  It would been two and a half months ago, 
      9   three months ago now.  Maybe longer.  
     10        Q.  What month is it now?  That would be about 
     11   April?
     12        A.  Yeah.
     13        Q.  Again, I don't mean to be facetious.  It's 

     14   kind of a blur.
     15        A.  My whole life has been a blur in the last 
     16   couple of months or so.  A lot's been going on.
     17        Q.  I understand.  So two, two and a half months 
     18   ago?
     19        A.  I'd have to check to be sure.  But that sounds 
     20   about right.
     21            Is there a submission date on the declaration?
     22        Q.  Yeah, and we'll get to that.  I'll show you 
     23   that.
     24        A.  That will let me know.  It was a couple of 
     25   weeks before that that I wrote it.


      1        Q.  Very good.  Okay.
      2            Since your initial communication with 
      3   Mr. Garbus, if that's the best recollection you have of 
      4   who you first spoke to, how many different people at 
      5   Frankfurt Garbus Klein & Selz have you spoken with 
      6   about your involvement in this case?
      7        A.  I've spoken with Marty.  I've spoken with Ed.  
      8   I've spoken -- 
      9        Q.  Ed would be Mr. Hernstadt?
     10        A.  Yes, Ed Hernstadt.  I've spoken in a 
     11   peripheral way with Fredda.  What's Fredda's last name?  
     12   She's the assistant to -- 
     13            MR. HERNSTADT:  Marty's assistant.
     14            MS. MILLER:  Thank you, Mr. Hernstadt.
     15            THE WITNESS:  Yeah.  So that's about it.  I 
     16   think there may have been one or two other like 
     17   paralegals walking around, but Ed and Marty have been 
     18   my main contacts.
     19   BY MS. MILLER:
     20        Q.  When you say "walking around," do you mean 
     21   walking around in Frankfurt Garbus' offices?
     22        A.  Yes.
     23        Q.  So you visited their offices?
     24        A.  Yes, I did.
     25        Q.  When did you visit their offices?


      1        A.  I'm trying to think back.  That was -- I'd 
      2   have to check my records to be sure.  It was shortly 
      3   before I worked on my declaration.
      4        Q.  Okay.  Great, so when we get to the 
      5   declaration, that date will help refresh your 
      6   recollection as to all this.
      7             And when you visited Frankfurt Garbus' 
      8   offices, did you meet with Mr. Garbus --  
      9        A    Yes.  
     10        Q    -- and Mr. Hernstadt together?
     11            (Discussion had off the record.)
     12   BY MS. MILLER:
     13        Q.  In the meeting with Mr. Garbus and 
     14   Mr. Hernstadt, what did they tell you about this 
     15   case -- 
     16            MR. HERNSTADT:  Objection to form. 
     17   BY MS. MILLER:
     18        Q.  -- if anything?
     19        A.  Boy.  They were more asking me how the 
     20   encryption methods in the DVD driver works and how the 
     21   DVDs themselves work, because they wanted to be up on 
     22   the technology.  That was most of that meeting.
     23        Q.  So you were just assisting them in their 
     24   understanding --
     25        A.  Yes.


      1        Q.  -- of the technology involved?
      2        A.  Yes, I was.
      3        Q.  Did they tell you who the defendants were in 
      4   that case?
      5        A.  I already knew.
      6        Q.  How did you know?
      7        A.  It had first come up when the MPAA had brought 
      8   their case against the defendants, and it was pretty 
      9   widely known on the internet via Slashdot and other 
     10   news organizations.  And that's how I knew.
     11        Q.  So that's when you first learned about the 
     12   lawsuit, is that fair to say, by reading it on the 
     13   internet?
     14        A.  Absolutely.
     15        Q.  Since your first meeting with the lawyers at 
     16   Frankfurt Garbus firm, have you made any more trips to 
     17   New York?
     18        A.  No.
     19        Q.  How many times since that first meeting would 
     20   you estimate that you spoke with either Mr. Garbus or 
     21   Mr. Hernstadt?
     22        A.  Probably about a half a dozen.
     23        Q.  Since today, or -- excuse me, 'til today, half 
     24   a dozen?
     25        A.  Probably about a dozen times, because, you 


      1   know, Ed's been in town a couple of days.
      2        Q.  And how did most of these communications take 
      3   place?
      4        A.  Via cell phone.
      5        Q.  By telephone?
      6        A.  Yeah.
      7        Q.  Any e-mail communications?
      8        A.  One or two.
      9        Q.  Do you still have those e-mails?
     10        A.  Yes. 
     11            MS. MILLER:  Mr. Hernstadt, at this time I'd 
     12   like to make a request for the production of those 
     13   e-mails that Mr. DiBona still has on his computer 
     14   somewhere, I gather. 
     15            MR. HERNSTADT:  Okay.  We will take that under 
     16   advisement. 
     17            MS. MILLER:  Thanks.
     18   BY MS. MILLER:
     19        Q.  Now, is Mr. Hernstadt's firm actually 
     20   representing you as a witness in this lawsuit?
     21            MR. HERNSTADT:  For the purposes of this 
     22   deposition, yes.
     23            MS. MILLER:  Okay.
     24   BY MS. MILLER:
     25        Q.  Have you ever signed a retainer agreement with 


      1   Frankfurt, Garbus, Klein & Selz for purposes of 
      2   representing you in this deposition?
      3        A.  I don't think I have, no.
      4             MS. MILLER:  I'm going to show you, 
      5   Mr. DiBona, what I'd like to first have marked as 
      6   Exhibit 1.
      7            (Plaintiff's Exhibit 1 was marked for 
      8   identification.)
      9   BY MS. MILLER:
     10        Q.  Mr. DiBona, I've just handed you what's been 
     11   marked as Exhibit 1, which is a subpoena that's been 
     12   issued by the plaintiffs in this case to you.
     13            Could you just take a minute and flip through 
     14   the document, and I'd like to ask you some questions 
     15   about it.
     16        A   Do you mind if I ask you what day it is?
     17        Q.  What day it is today?  
     18        A   Yes.  
     19        Q   It's July the 8th?  
     20        A.  Then this subpoena is kind of ridiculous, 
     21   because it says I have to be somewhere a couple of 
     22   weeks ago. 
     23        Q.  Okay.  Let's stop here, and let me just ask 
     24   you a question.  Have you ever seen this document?
     25        A.  No. 


      1        Q.  Have you seen a document like this?
      2        A.  No. 
      3        Q.  Were you ever asked by anyone to appear today 
      4   for this deposition?
      5        A.  Today?  Yes.
      6        Q.  Who asked you to appear for this deposition 
      7   today?
      8        A.  That was Ed.  Ed Hernstadt.
      9        Q.  Were you asked to bring any documents with 
     10   you --
     11        A.  No.
     12        Q.  -- when you came here today?  
     13            MR. HERNSTADT:  I should note for the record 
     14   that I was never provided with a subpoena for 
     15   Mr. DiBona or a document request for Mr. DiBona.  So I 
     16   had no opportunity to send it on to him.
     17            MS. MILLER:  Okay.  But you were provided 
     18   subpoenas for other witness?  
     19             MR. HERNSTADT:  In fact, no.  I was given a 
     20   large -- for the record, Mr. Hart sent me a bunch of 18 
     21   subpoenas and notices of deposition and a big wad of 
     22   cash, and I told him -- with a cover letter saying 
     23   "Since you've agreed to accept subpoenas for non-party 
     24   witnesses, here that are."  
     25            I explain that I hadn't agreed to that.  I had 


      1   said that I would ask them and, if they told me I could 
      2   accept a subpoena, then I would accept a subpoena.
      3            And before I could do that, he started having 
      4   the process server serve the witnesses with subpoenas 
      5   themselves.  So I sent back all the subpoenas he had 
      6   given to me. 
      7   BY MS. MILLER:
      8        Q.  Mr. DiBona, did Mr. Hernstadt ever ask you if 
      9   he was authorized to accept a subpoena on your behalf?
     10        A.  Not to my recollection, no.
     11        Q.  Okay.  That's all I have on that document. 
     12            MR. HERNSTADT:  When you're done, you can give 
     13   them to the court reporter.
     14            THE WITNESS:  This?  Okay.
     15   BY MS. MILLER:
     16        Q.  So Mr. DiBona, do you know what CSS is?
     17        A.  Yes.
     18        Q.  What is CSS?
     19        A.  CSS is the content-scrambling system used in 
     20   the DVD technology. 
     21        Q.  When did you first hear of CSS?
     22        A.  I heard of CSS probably about six months after 
     23   DVDs were beginning to be marketed by the different 
     24   entertainment companies.
     25        Q.  Six months after?


      1        A.  Yes.
      2        Q.  And do you know when --
      3        A.  That's an approximate.
      4        Q.  Approximately time frame?
      5        A.  It would be an approximate time frame, yeah.
      6        Q.  Can you give me a year, approximately?
      7        A.  I just remember reading about it shortly after 
      8   DVDs were produced and being marketed as a new thing.
      9        Q.  And where did you first read about it?
     10        A.  I have no idea.
     11        Q.  Was it in a magazine, a paper magazine or on 
     12   the internet?
     13        A.  I believe it was a paper magazine or a 
     14   journal.
     15        Q.  But you have no idea what that publication is?
     16        A.  No.
     17        Q.  What do you remember, if anything, reading 
     18   about CSS when you first heard of it?
     19        A.  It was more mentioned in passing as being the 
     20   method that the DVD uses to prevent people from making 
     21   direct copies of it.
     22        Q.  Was the article more focused, then, on the 
     23   introduction of DVDs in the marketplace or on the CSS 
     24   technology specifically?  You say it was mentioned in 
     25   passing.


      1            MR. HERNSTADT:  Objection to form.
      2             You can answer the question if you can.
      3            THE WITNESS:  It's the former, actually.
      4   BY MS. MILLER:
      5        Q.  The former?
      6        A.  Mm-hmm.
      7        Q.  Do you know what DeCSS is?
      8        A.  Yes.
      9        Q.  What is DeCSS?
     10        A.  DeCSS is a program that runs under the Windows 
     11   operating system that is designed to allow you to copy 
     12   decrypted files off of a DVD onto your hard drive. 
     13        Q.  Does the DeCSS -- excuse me.  Strike that.
     14            Does the DeCSS program, to your knowledge, do 
     15   anything else other than what you've just described?
     16        A.  No, not to my knowledge.
     17        Q.  Have you ever used a DeCSS yourself?
     18        A.  In the process of preparing my declaration, I 
     19   did, in fact, use the DeCSS in the method I've said.
     20        Q.  And where did you obtain the copy of DeCSS 
     21   that you used?
     22        A.  I got it off the internet from a link found on 
     24        Q.  What is a link?
     25        A.  A hyperlink.


      1        Q.  What is a hyperlink?
      2        A.  A hyperlink is a -- it's an indicator on a web 
      3   page which allows you to go from web page to web page, 
      4   from site to site.
      5        Q.  So you found the DeCSS program via a hyperlink 
      6   from
      7        A.  Yes.
      8        Q.  Do you recall what site that hyperlink took 
      9   you to?
     10        A.  In fact, it might have been on the opendvd 
     11   site itself.  I just remember clicking on the link.
     12        Q.  But you don't recall from that point where you 
     13   actually went, or you didn't notice?
     14        A.  I didn't notice.  I didn't care.
     15        Q.  When you clicked on that link on the 
     16 site, do you recall whether the utility 
     17   started to download immediately to your computer?
     18        A.  Yes, in fact, it did.
     19        Q.  Was the DeCSS utility that you downloaded in 
     20   object code form?
     21        A.  What do you mean by "object code form"?
     22        Q.  What do you understand "object code" to mean?
     23        A.  To me, object code is the interim step after 
     24   compiling and before linking of, say, source code.
     25        Q.  Let's back up a little bit, then.


      1            What is source code?
      2        A.  Source code is when you use -- is what people 
      3   consider -- for instance, to take a step back, when 
      4   you're programming, depending on the language you use, 
      5   you sometimes choose a higher level of abstraction 
      6   versus a lower level of abstraction to be able to 
      7   program faster than you would if you were, say, 
      8   programming very, very low.
      9            So source code is what you call a program that 
     10   is in a higher level of abstraction than, say, straight 
     11   machine code.
     12            You can program in machine code.  You can 
     13   program in Assembly.  You can program in C.  I consider 
     14   all those things to be source code, but they usually 
     15   have to go through some interim step before they can be 
     16   executed directly on the computer.
     17        Q.  Sure.  
     18        A.  So when you say object code to me, I 
     19   specifically think of the code that is generated from 
     20   source code after it's been put through a compiling 
     21   stage before it has been linked to certain libraries to 
     22   make it executable by the machine.
     23            I don't know if that clarifies.
     24        Q.  That's great.  So the DeCSS utility that you 
     25   downloaded was an executable utility?


      1        A.  It was directly executable.
      2        Q.  And just so, again, we're clear, what is an 
      3   executable as you and I have just used the term?  How 
      4   do you understand that term?
      5        A.  Okay.  So depending on the environment, an 
      6   executable can be a number of different things.
      7        Q.  When you say "environment," do you mean a 
      8   different computer operating system environment?
      9        A.  It could mean an operating system environment; 
     10   it could mean within the virtual machine of a browser 
     11   running Java, for instance; it could mean the microcode 
     12   that sits on a chip inside a computer.  I mean an 
     13   executable can exist in a number of different forms.    
     14            So in the case of DeCSS, the executable that I 
     15   downloaded was directly executable under the Windows 
     16   environment.
     17        Q.  Okay.  And is it fair to say, when you use the 
     18   phrase "it's directly executable," then, it can then 
     19   run under the Windows operating system environment?  
     20   You can actually run the program or operate the 
     21   program?
     22        A.  Yes.
     23        Q.  Thank you.  Just trying to make it plain.
     24        A.  Mm-hmm.
     25        Q.  Do you still have a copy of the DeCSS 


      1   executable on whatever computer you downloaded it to?
      2        A.  Yes, I do.
      3        Q.  And what computer is that?  Was that a 
      4   personal computer or a computer at your office?
      5        A.  No.  It's my personal laptop at home.
      6        Q.  So now, what brand of laptop is this?  You can 
      7   just tell me, if we can just cut through this, how it's 
      8   configured, what operating system environment you were 
      9   using.  I presume, obviously, it was Windows.  But if 
     10   you can just explain to us what the configuration is of 
     11   your laptop that you used to run DeCSS.
     12        A.  The laptop is a ThinkPad 600 made by IBM 
     13   Corporation.  It's got 300 megabytes of ram, an 
     14   18-gigabyte hard drive.  I have a DVD drive in it.
     15             It's actually a dual-built machine.  I 
     16   installed Windows specifically for the purposes of this 
     17   declaration.  I usually run Linux on it.  Linux runs 
     18   great on it.
     19        Q.  Prior to running this DeCSS experiment, you 
     20   did not have the Windows operating system installed on 
     21   this machine?
     22        A.  I did not.  It's shipped with Windows 
     23   installed, so it was there, but I wiped it.
     24        Q.  I'm sorry, did you say that the ThinkPad that 
     25   you had has an 18-gigabyte hard drive?


      1        A.  Yes. 
      2        Q.  What DVD did you use to test DeCSS?
      3        A.  "Air Force One."
      4        Q.  Was that the only one, or were there more?
      5        A.  That was the only one.
      6             Wait.  Let me think.  I may have tried one 
      7   other.  I'm trying to remember which one it was, 
      8   though.
      9        Q.  Okay.  Take your time.
     10        A.  That's the only one I can remember actually 
     11   doing anything concrete with.
     12        Q.  When you say "doing anything concrete with" --
     13        A.  For the purposes of this declaration using 
     14   DeCSS.
     15        Q.  Do you know what a .VOB file is?
     16        A.  Yes.
     17        Q.  What's your understanding of what a .VOB file 
     18   is?
     19        A.  From what I understand, the VOB file is the 
     20   actual file on the DVD which contains the movie in both 
     21   video and audio combined.
     22        Q.  You said that's from what you understand.  
     23   From where did you gain that understanding?
     24        A.  Through the use of the programs.  I mean it 
     25   was the VOB file which your licensed or unlicensed 


      1   player would load and play the actual content from.
      2        Q.  Do you have an understanding of how CSS 
      3   operates vis-a-vis the DVD drive, the DVD player -- 
      4        A.  I believe so, yes.
      5            MR. HERNSTADT:  Objection to the form.
      6            THE WITNESS:  Sorry. 
      7   BY MS. MILLER:
      8        Q.  You believe you have an understanding of how 
      9   CSS operates?
     10        A.  Yes.
     11        Q.  Could you explain that, what your 
     12   understanding is about how CSS operates?
     13        A.  Yeah.  From what I understand, CSS is -- it's 
     14   a multi-step process.  The player first of all -- 
     15   okay.  So at a hardware level, the DVD drives are 
     16   designed not to give data out until it's been 
     17   unlocked.  So at a very high level, the DVD player 
     18   unlocks -- the DVD-playing program on your computer 
     19   unlocks the hardware to allow you to bring the data off 
     20   the hardware and play it using the software.
     21             As we go lower down, it's actually -- it's 
     22   very transactional.  The DVD hardware will give you 
     23   certain information without any keys, and then after 
     24   you have unlocked the drive, it will give you the 
     25   information like the movies and such off the DVD.


      1        Q.  How does the drive get unlocked, if you know, 
      2   if you understand?
      3        A.  From what I understand, a key is passed to the 
      4   hardware which unlocks the regions on the DVD.  It 
      5   actually unlocks the ability of the DVD hardware to 
      6   read the data off the DVD.
      7             So I mean the DVD disk itself doesn't have 
      8   any mechanism.  It's just one big collection of bits, 
      9   right?  So what's really happening is you're unlocking 
     10   the hardware and its ability to read the DVD.
     11        Q.  And I'm sorry, did you say that you believe 
     12   that that unlocking was done through the passing of a 
     13   key?
     14        A.  Yes.
     15        Q.  What component in this model that we're 
     16   discussing actually contains the key, to your 
     17   understanding?
     18        A.  The key has to come from the playing software, 
     19   from what I understanding.  Again, my declaration was 
     20   more focused on the mechanisms of using DeCSS.
     21        Q.  As opposed to the mechanisms of CSS?
     22        A.  Yes.
     23        Q.  From where did you derive this understanding 
     24   of what you just explained to me of the way CSS 
     25   operates?


      1        A.  Partly from reading sources on the internet, 
      2   here and there --
      3        Q.  Do you recall any -- I'm sorry.  If you didn't 
      4   finish your answer, I apologize.  Continue, please. 
      5        A.  -- partly intuiting it from the way the 
      6   utilities like DeCSS and licensed players use; partly 
      7   from the other declarations.
      8        Q.  What sources on the internet did you consult 
      9   to gain this understanding, if you recall?
     10            MR. HERNSTADT:  Objection to form.
     11            You can answer.
     12            THE WITNESS:  I'm honestly not sure.  I didn't 
     13   keep a record of what I read.
     14   BY MS. MILLER:
     15        Q.  Can you think any web sites where you might 
     16   have read something about DeCSS?
     17            MR. HERNSTADT:  Objection to form and so far 
     18   calls for speculation.
     19   BY MS. MILLER:
     20        Q.  I'm not calling for you to speculate.  I'm 
     21   just asking for you to recall if you can. 
     22        A.  I'm sure some of the information came from -- 
     23   I can't say with any real sureness, so I'm not going to 
     24   bother.
     25        Q.  Okay.  Fair enough.


      1            You said that you also read some declarations 
      2   in the case.
      3        A.  Yes.
      4        Q.  Which declarations did you read?
      5        A.  The one that covered CSS.  I don't remember 
      6   the author, so sorry.
      7        Q.  Do you recall how you received these 
      8   declarations or how you came to read them?
      9        A.  I read them off of the cryptome web site.  
     10   Cryptome is an archive of all the documents in the case 
     11   on the net. 
     12        Q.  Do you know the URL for that web site?
     13        A.  I believe it's
     14        Q.  Now, to your -- strike that.
     15            To your understanding, are the .VOB files that 
     16   comprise the DVD movie encrypted?
     17        A.  It matters what stage you read them.  If you 
     18   read them off of the drive directly without using a 
     19   player, after the drive has been unlocked, they stay 
     20   encrypted as you copy them over.
     21            If you read them using a player that has the 
     22   decryption stuff built into it, then they're decrypted 
     23   as part of that playing process.
     24        Q.  As part of the playing process?
     25        A.  Yes.


      1        Q.  As you understand it, when they are on the DVD 
      2   itself, they are encrypted; is that correct?
      3        A.  Yes, they are.
      4        Q.  As far as the operation of DeCSS that you 
      5   testified to earlier, I believe you said that DeCSS 
      6   decrypts the movie files as contained on a DVD.  Does 
      7   it then make a copy of those files?    
      8            MR. HERNSTADT:  Objection.  Form.
      9            You can answer that if you understand it.
     10            THE WITNESS:  I think the best way to 
     11   characterize DeCSS is as a tool of decryption and not a 
     12   tool of copying, because it facilitates the copying of 
     13   the VOB file off of the DVD into an decrypted VOB file 
     14   on your hard drive.
     15            That said, I can copy the file without it.  
     16   But DeCSS is useful in that it decrypts that file.
     17   BY MS. MILLER:
     18        Q.  So how does it facilitate the copying of the 
     19   file?
     20        A.  It will read the file from the drive and 
     21   deposit it somewhere else, so...
     22        Q.  And in the experiment that you ran, where did 
     23   it deposit it?
     24        A.  I had it put it on my hard drive.
     25        Q.  And the way DeCSS operates, can the user 


      1   determine where the file should be deposited --
      2        A.  Yes.
      3        Q.  -- to give you options?
      4            What other options does it give you?
      5        A.  I'd have to go back and look at the program to 
      6   answer that in a complete way, but you can definitely 
      7   choose where to put the file.
      8        Q.  So for example, you could submit it to some 
      9   other auxiliary storage mechanism other than a hard 
     10   drive like a tape drive, for example, if you recall?
     11        A.  No.  It's specifically for copying it onto a 
     12   hard drive.
     13        Q.  So in terms of the user selection, are you 
     14   just telling it which directory on the hard drive to 
     15   put it, if you recall the way it operates?
     16        A.  If I remember correctly, yes.
     17        Q.  So the user just designates where on the hard 
     18   drive or which hard drive the DeCSS should deposit the 
     19   file to; is that correct?
     20            MR. HERNSTADT:  Objection as to form.
     21   BY MS. MILLER:
     22        Q.  If you recall.
     23        A.  Yes.  You can tell DeCSS where to put the 
     24   file.
     25        Q.  Mr. DiBona, do you actually have a DVD player, 


      1   a stand-alone DVD player, a device like a VCR?
      2        A.  Yes, I do.
      3        Q.  What model DVD player do you have?
      4        A.  It's the --
      5            MR. HERNSTADT:  Go ahead.  You can answer.
      6            THE WITNESS:  It's the low-end Sony model.  I 
      7   don't know the exact model number.
      8            You can subpoena the document if you like, but 
      9   I don't know what it is.
     10            MS. MILLER:  Off the record.
     11            (Discussion had off the record.)
     12   BY MS. MILLER:
     13        Q.  What type of internet connection do you have 
     14   from your home computer?
     15        A.  I have a DSL.
     16        Q.  And what is a DSL?
     17        A.  Digital Subscriber Line.
     18        Q.  Do you know at what speed you can transmit 
     19   files via the DSL that you have in your house?
     20        A.  Ours is -- I believe it's 192 kilobits per 
     21   second, maybe 212.
     22        Q.  Now, would you describe that as a standard 
     23   DSL -- strike that -- a standard internet connection 
     24   for most consumers, or would that be fairly high speed?
     25            MR. HERNSTADT:  Objection to form.  Calls for 


      1   speculation.
      2            I'll let you answer that if you can.
      3            THE WITNESS:  I'll be honest with you, if you 
      4   look at the broad spectrum of connectivity across the 
      5   United States, there is no typical connection anymore.
      6   BY MS. MILLER:
      7        Q.  By that do you mean that there are so many 
      8   different types of connections to the internet and 
      9   speeds that a user has a variety of choices?
     10        A.  I think that's fair, yes.
     11        Q.  Going back to the test that you performed 
     12   using DeCSS, other than decrypting the movie file and 
     13   allowing you to copy it to your hard drive, do you 
     14   recall whether DeCSS performed any other functions or 
     15   allowed you to perform any other functions?
     16            MR. HERNSTADT:  Object to the form of the 
     17   question.  It's also asked and answered.
     18            Go ahead.
     19            THE WITNESS:  I've already answered that.  To 
     20   my recollection, the functions of DeCSS and 
     21   specifically the way that I used it was specifically 
     22   for decrypting and copying the file onto my hard drive.
     23   BY MS. MILLER:
     24        Q.  Have you ever heard anything about a merge 
     25   function within the DeCSS utility?


      1        A.  No.
      2        Q.  Have you ever looked at the source code for 
      3   DeCSS?
      4        A.  No.
      5        Q.  Do you have any understanding or knowledge of 
      6   the programming language that it's written in?  
      7            MR. HERNSTADT:  Objection to form, and also 
      8   asked and answered.
      9            THE WITNESS:  I don't know what language it  
     10   it was written in.  I haven't seen the code.
     11            MR. HERNSTADT:  Can we take three minutes 

     12   before we get into the declaration, if that's okay? 
     13            MS. MILLER:  Sure. 
     14            THE VIDEOGRAPHER:  Off the record, the time is 
     15   11:00 o'clock a.m. 
     16            (Break taken from 11:00 to 11:08 a.m.)
     17            THE VIDEOGRAPHER:  On the record, the time is 
     18   11:08 a.m.  Please continue.
     19             MS. MILLER:  Mr. DiBona, I'd like to mark as 
     20   Exhibit 2 the declaration that you had previously 
     21   testified that you already submitted in this case.  
     22   Once the court reporter has marked it, she'll give it 
     23   to you.
     24            (Plaintiff's Exhibit 2 was marked for 
     25   identification.)


      1            THE WITNESS:  Thank you. 
      2   BY MS. MILLER:
      3        Q.  Have you had enough time to look it over?
      4        A.  I was just browsing.
      5        Q.  You're familiar with this document, correct?
      6        A.  Yes.
      7        Q.  Could you just identify what this document is?
      8        A.  This is the declaration that was filed, 
      9   written by me, includes my resume, the -- so there you 
     10   go.
     11        Q.  First of all, I'd like to turn your attention 
     12   to page -- well, actually, the pages aren't numbered, 
     13   but if you flip to Paragraph 21 --
     14        A.  Okay.
     15        Q.  -- which looks like is the last page of the 
     16   declaration.  The declaration is dated May 1st, 2000; 
     17   is that correct?
     18        A.  Yes.
     19        Q.  And you testified earlier that you thought you 
     20   were first engaged by the Frankfurt Garbus firm to get 
     21   involved in this case a couple of weeks prior to filing 
     22   this declaration?
     23        A.  I think so.
     24        Q.  Okay.  So does the date of the declaration 
     25   help refresh your recollection as to when you were 


      1   first contacted about your involvement in the case?
      2        A.  Not particularly.
      3        Q.  Not particularly?  So your prior testimony 
      4   stands?
      5        A.  Yes.
      6        Q.  Did you review any documents in preparing this 
      7   declaration, anything at all?
      8        A.  My resume.  I had to freshen that one up.  
      9   That was pretty old by the time I went to go and 
     10   include it on this document.
     11        Q.  To just follow up on that, you actually 
     12   updated your resume that's attached as Exhibit A to 
     13   your declaration within the May time frame or right 
     14   around the time the declaration was filed? 
     15        A.  Yeah.  I had to.  It didn't include the most 
     16   recent three items of my work experience.
     17        Q.  So as of today, this declaration is still 
     18   completely up to date?
     19        A.  Yes.
     20        Q.  Okay.  Any other documents besides your 
     21   resume?
     22        A.  Had to be updated or -- 
     23        Q.  No.  That you reviewed in preparing this 
     24   declaration.
     25        A.  Not particularly.  Most of my declaration was 


      1   more procedural.  So it was just a matter of me 
      2   documenting exactly how the mechanisms work.
      3            MR. HERNSTADT:  I assume you're also excepting 
      4   the article, the article that's attached as 
      5   Exhibit B to the declaration.
      6   BY MS. MILLER:
      7        Q.  Well, I'm assuming that you did read that 
      8   article before attaching it.  Is that correct, 
      9   Mr. DiBona?
     10        A.  It is correct that I read it before attaching 
     11   it.
     12        Q.  Did you visit any web sites in preparing this 
     13   declaration?
     14        A.  Not particularly.  Again, the nice thing about 
     15   my declaration is that it didn't require a lot of 
     16   research so much as documentation of how these 
     17   mechanisms worked.
     18        Q.  Okay.
     19            MR. HERNSTADT:  Again, I assume you're asking 
     20   in addition to whatever web site he visited that he 
     21   testified about earlier to get the DeCSS.
     22            MS. MILLER:  Correct.  We'll get to all that 
     23   as we go through the declaration.  But we've already 
     24   gotten a lot of it, so hopefully we can zip right 
     25   through this.


      1   BY MS. MILLER:
      2        Q.  If I could turn your attention, Mr. DiBona, 
      3   back to the first page of your declaration.
      4            Now, you've already testified about your 
      5   current employment with VA Linux Systems.  In 
      6   Paragraph 1, you say that "VA Linux Systems is the 
      7   country's leading company providing hardware and 
      8   software products for Linux users and internet 
      9   infrastructure companies."
     10            What are VA Linux Systems' products?  Let's 
     11   start with hardware first, if you don't mind.
     12        A.  VA sells servers, desktops and large-scale 
     13   scientific computing clusters based on Linux. 
     14        Q.  And when you say "computing clusters," could 
     15   you just explain what that means, please.
     16        A.  Sure.  The scientific computing market, say 
     17   weather simulations, nuclear test simulations, they 
     18   require a lot of computing power.  And one of the ways 
     19   that those problems are attacked are by aggregating a 
     20   number of smaller machines together and using them as 
     21   a -- as sort of a team to fight the problem.  So we 
     22   sell those teams of machines.
     23        Q.  You actually configure the clusters, then, as 
     24   part of the services of VA Linux Systems in addition to 
     25   just selling the machines, I would imagine?


      1        A.  VA has a professional services organization 
      2   who specializes in that, among other types of 
      3   installations.
      4        Q.  And what about software products?
      5        A.  VA operates a number of web sites on line, one 
      6   of which is sourceforge in which we allow open-source 
      7   developers to have a place that's administered 
      8   professionally where they can develop software.  And 
      9   from that, a lot of software is developed which we then 
     10   use with our customers for whatever their needs are.
     11        Q.  So is it fair enough to say that you provide 
     12   hosting services for open-source software development 
     13   efforts?
     14        A.  It's accurate to say that, yes.
     15        Q.  What is VA Linux Systems' current customer 
     16   base, if you know?
     17            MR. HERNSTADT:  Objection.  Form.  It's vague.
     18            If you understand what she means.
     19            THE WITNESS:  Honestly, if I knew it I 
     20   probably couldn't talk about it because of the SEC 
     21   regulations.  It's based on -- you know, we have our 
     22   earnings report in about a month.
     23            But honestly, I don't know it.  It's not my 
     24   part of the business.
     25   BY MS. MILLER:


      1        Q.  And what is your current role at VA Linux 
      2   Systems?
      3        A.  My job is Linux community evangelist for VA 
      4   Linux Systems, which means that I -- think of it as -- 
      5   in a traditional company, it would be developer 
      6   relations.
      7        Q.  So is it fair to say you are the liaison 
      8   between VA Linux Systems and Linux developers?
      9        A.  It would be more fair to say I'm part of the 
     10   liaison team.  There is three or four of us.
     11        Q.  When did you first become familiar with the 
     12   Linux operating systems, Mr. DiBona?
     13        A.  Early 1994 was when I first tried to install 
     14   it on a 4625 that I owned.  I started using it hard 
     15   core sort of mid '94 as part of my school work.
     16        Q.  And when was the Linux operating system 
     17   developed, if you know?
     18        A.  Linux is -- as an operating system should be 
     19   considered as two things or many, many things.  The 
     20   Linux kernel began development in the very early '90s.  
     21   It hit sort of a point where it was more viable in '91 
     22   to '93.  And then it was combined with other tools 
     23   created by the Free Software Foundation, and those 
     24   tools had been in development at least a decade at that 
     25   point.


      1        Q.  Now when you say it "became more viable," what 
      2   do you mean by that?
      3        A.  Reliable, useful, actually able to do real 
      4   work and not just as a dot experiment.
      5        Q.  What's your understanding of the availability 
      6   of application software systems for running under the 
      7   Linux operating system at this point?  
      8            MR. HERNSTADT:  Objection to form.  What do 
      9   you mean by that?  
     10   BY MS. MILLER: 
     11        Q.  Do you understand what I mean by "application 
     12   systems"?
     13        A.  Not particularly, no.
     14        Q.  You've just testified what an operating system 
     15   is or what the Linux operating system is.
     16        A.  I haven't really.
     17        Q.  Could you tell us what an operating system is?
     18        A.  An operating system itself, first of all, 
     19   there is two kinds -- there is a number of different 
     20   ways of describing an operating system.  From its 
     21   purest definition, an operating system is something 
     22   that intercedes on behalf of the user to get things 
     23   done on the computer, right?  That's very high level 
     24   abstraction.
     25            An operating system from a computer-science 


      1   perspective is the piece of software that handles 
      2   resource, handles devices, handles the CPU and memory 
      3   of a machine.
      4            So -- but most people now think of operating 
      5   systems as being everything.  They think of it as being 
      6   the windowing system, the graphical user interface the 
      7   user has, they think of it being the tools they use for 
      8   moving files around, for using their network utilities.  
      9   And that's not really true so much.
     10            So an operating system from a Linux 
     11   perspective, you have the Linux kernel, which is again 
     12   the piece of software that maintains the memory, the 
     13   CPU, the different resources in the computer.  Then you 
     14   have all the utilities on top of it that make up sort 
     15   of that user interface.
     16        Q.  When I'm using the phrase "application system" 
     17   as distinguished from the way you've just described an 
     18   operating system, what I mean by that is a software 
     19   program that allows a user to perform a particular 
     20   task, such as word processing or a financial 
     21   spreadsheet application.  That's what I'm describing or 
     22   referring to when I use the term "application system."
     23            Do you understand that?
     24        A.  Yes, I do.
     25        Q.  Okay.  Are there application software packages 


      1   available to run under the Linux operating system as 
      2   you're aware?
      3        A.  Yes, there are.
      4        Q.  What types of application systems run under 
      5   the Linux operating system to your knowledge?
      6        A.  From an office productivity standpoint?  
      7        Q.  Yes.
      8        A.  You'll have -- there is Star Office, which is 
      9   a Sun Microsystems products; there is Applixware, which 
     10   is -- 
     11        Q.  I'm sorry?
     12        A.  Applix, A-P-P-L-I-X-W-A-R-E.  Again, it's 
     13   another software suite by a company called Applix, 
     14   which is I think in Germany, but don't quote me on 
     15   that.  Or quote me on that; just know that my knowledge 
     16   is not very deep there.
     17            There are open-source office applications, 
     18   there is AbiWord, there is KOffice, there is the Gnome 
     19   software suite has a number of -- it's got a 
     20   spreadsheet, it's got a calendar, it's got a word 
     21   processor.  And those are all integrated.
     22            So there is no surfeit of office productivity 
     23   applications under Linux.  And there is Emax which is 
     24   the all-encompassing tool that was written by Richard 
     25   Stallman and others.


      1        Q.  I'm sorry, written by whom?
      2        A.  Rich Stallman and others, many, many others.
      3        Q.  To your knowledge, are there any 
      4   software-based DVD players that run under the Linux 
      5   operating system?
      6        A.  From what I understand, I know there are 
      7   software packages that will play decrypted VOB files, 
      8   and that's xmovie.
      9            As far as software-based DVD players, do you 
     10   mean licensed or unlicensed?
     11        Q.  I mean any players that you're aware of, 
     12   whether licensed or unlicensed.
     13        A.  As far as I know, I have not used any.  I've 
     14   heard of some being in development, but until I've got 
     15   it on my laptop and it's playing a DVD, I don't believe 
     16   it exists.
     17        Q.  It's vaporware at that point?
     18        A.  Yeah.  There is a lot of vapor out there.
     19            So no, as far as I'm concerned, the only way 
     20   to play a DVD is to have the decrypted VOB file and 
     21   xmovie on on your machine.
     22        Q.  Under Linux?
     23        A.  Under Linux. 
     24        Q.  Okay.  What are the ones -- scratch that.  
     25   Strike that.


      1             What are the Linux DVD players that you've 
      2   heard about that are under development?
      3        A.  Okay.  This was one called OMS, and I'm pretty 
      4   sure -- I was surfing the web about three or four days 
      5   ago, and I came across it.  And it's supposed to be 
      6   the -- Open Media System, I believe, is what OMS stands 
      7   for.  It looks pretty good from the screen shots I've 
      8   seen.  I didn't try to install it or anything.  I 
      9   didn't have time.  
     10        Q.  Do you recall how you came across OMS surfing 
     11   the web?  Do you recall what web site you found 
     12   information about that player on?
     13        A.  I believe it was the LinVideo, 
     14   web site.  That can be verified very easily.  I could 
     15   find it again in a second if need be.  But I'm sure 
     16   anyone visiting a browser could find it.
     17        Q.  Any other development projects you're aware of 
     18   besides OMS?
     19        A.  No.  None.
     20            It's not to say I don't think they exist; I 
     21   just don't have any personal knowledge of them.
     22        Q.  Have you ever heard of the LiVid project?
     23        A.  I think OMS is part of the LiVid project, but 
     24   I'm not certain.
     25        Q.  So when you're saying OMS, you're actually 


      1   including within that the LiVid project development 
      2   efforts?
      3        A.  I think that OMS is the result of the LiVid 
      4   project.  The LiVid project is the Linux video project 
      5   to play DVDs, and the software package they wrote was 
      6   OMS.  But again, I'm not sure.
      7        Q.  Have you ever heard the acronym "LSDVD"?
      8        A.  Yes, but I have no idea what it stands for.
      9        Q.  Even -- not withstanding the fact that you 
     10   don't know what it stands for, do you know what it is?
     11        A.  No.  I'm sorry, I don't.
     12        Q.  You've just heard the acronym?
     13        A.  (Nods head up and down.)  
     14            There is a lot of projects surrounding DVD.
     15        Q.  What are some of the other projects that 
     16   you've heard about?
     17        A.  There is LiVid, there is -- which I think is 
     19            I don't know the rest of them.
     20        Q.  But you know there were many of them?
     21        A.  I'm certain there are many of them.  That 
     22   said, I don't know which ones they are.
     23        Q.  So how are you certain that there are many of 
     24   them?  I mean how did you gain the knowledge that there 
     25   are many of them?


      1        A.  Well, if you consider that in the 
      2   English-speaking programmer community, there is already 
      3   two or three projects, and there is a lot more people 
      4   than just English speakers in the world who don't 
      5   really socialize outside their language.  I know there 
      6   is many of them.  There is a lot of programmers out 
      7   there.
      8            So it's an assumption, absolutely, but I think 
      9   a fair one.
     10        Q.  Okay.  Have you ever personally been involved 
     11   in developing application systems to run under the 
     12   Linux operating system?
     13        A.  Yes.
     14        Q.  And which systems are those?
     15        A.  I'm currently writing a personal information 
     16   manager under Linux.
     17        Q.  Are you working independently in that effort 
     18   or with another group of people?
     19        A.  Just by myself.  It's slow going, because I 
     20   have a very busy job.
     21        Q.  Apart from this personal project, then, any 
     22   commercial applications that you've been involved in 
     23   developing for the Linux operating system, or is that 
     24   the only one?
     25            MR. HERNSTADT:  Objection.  Form.  Assumes 


      1   facts not in evidence, and by that I mean "commercial."
      2            MS. MILLER:  I'm asking him if he's working 
      3   on or if he has worked on any other.
      4            MR. HERNSTADT:  I was just confused when you 
      5   said "apart from."  Okay.  I'm sorry.
      6            If you understand it better than I did, please 
      7   answer.
      8            THE WITNESS:  I think I do.  I think I 
      9   understand your question.
     10   BY MS. MILLER:
     11        Q.  Would you like to have the question read back?
     12        A.  No.  I mean I haven't done any work on any 
     13   commercial software for Linux, "commercial" meaning 
     14   closed-source proprietary software.  I haven't been 
     15   involved in that kind of software for a while now. 
     16        Q.  I'd like to direct your attention to 
     17   Paragraph 3 of your declaration, Mr. DiBona.
     18            Actually, before we go there, Paragraph 2 
     19   initially.  In the third sentence there, you say that 
     20   "Developed over the last decade over the internet, 
     21   Linux was released under the GNU, General Public 
     22   License ('GPL')."  
     23            The next sentence, "The GPL license provides 
     24   that anyone can use Linux, but they must promise to 
     25   make any program derived from or based on the Linux 


      1   source code open and freely available in its turn, so 
      2   as to promote the spread of the Linux and similar 
      3   software."  
      4            Do you see that language that I've just read?
      5        A.  Yes. 
      6        Q.  Now, the GPL license, are there any 
      7   repercussions if anyone breaches the GPL license 
      8   vis-a-vis the obligation to make available source code 
      9   that's based on the Linux source code?  
     10            MR. HERNSTADT:  Objection to the form.  Vague.
     11            You can answer it if you can.
     12            THE WITNESS:  No more than there are 
     13   repercussions for violating a regular license or 
     14   another license that any person would have with another 
     15   person.  I mean the person who holds the copyright to 
     16   the software whose license has been violated is free to 
     17   sue. 
     18   BY MS. MILLER:
     19        Q.  So then there is nothing within the philosophy 
     20   of the open-source Linux communica- -- strike that -- 
     21   Linux community that would preclude a developer of 
     22   software for Linux from registering a copyright for 
     23   that software?  
     24            MR. HERNSTADT:  Objection to form.
     25            THE WITNESS:  Actually, could you just restate 


      1   it?
      2            MS. MILLER:  Sure.  Could you read the 
      3   question back, please.
      4            (The record was read by the Reporter.)
      5            THE WITNESS:  Okay.  So there is the concept 
      6   of derived works in the GPL.  If you were to take code 
      7   that is in a currently GPLed program and create a new 
      8   program from it, that program itself would have to be 
      9   GPLed as well, whether I owned the copyright or not.
     10            If I were to -- for instance, if I wanted to 
     11   create a program that did something and I took a bunch 
     12   of software code from, say, the Linux kernel that was 
     13   similar to what I'd need, took it, make some 
     14   modifications and then released this piece of software, 
     15   it would have to be released under the GPL because of 
     16   the viral nature of the GPL.
     17            So whether I own copyright or not doesn't 
     18   contravene the goals of the GPL.
     19            Does that make sense?  I'm not certain that 
     20   totally answers your question.
     21   BY MS. MILLER:
     22        Q.  I'm not either.  
     23            What do you mean by the GPL being viral?
     24        A.  What I mean is that if you use a piece of code 
     25   that is GPLed in a program, then that program becomes 


      1   GPLed specifically.  So it has the --
      2        Q.  Is to pursuant to the GPL license terms?
      3        A.  Yeah.  That is one of the terms of the GPL 
      4   license.  So if you were then to redistribute that 
      5   piece of software, it would have to be GPLed as well.  
      6   So there you go.  It's considered viral because, of 
      7   course, it spreads.
      8        Q.  Gotcha.  But notwithstanding the fact that if 
      9   I were to create a piece of software that was GPLed, as 
     10   you've described it, and incorporating on prior pieces 
     11   of software that were under the GPL license and create 
     12   an original work on top of that, would I be able to 
     13   register a copyright in my own name on that work?  
     14            MR. HERNSTADT:  Objection to form and insofar 
     15   as it's asking for a legal conclusion or legal advice. 
     16   I know that's not what you're asking him.  I'm just 
     17   making my record.
     18             So let me direct you, don't answer anything 
     19   that might be considered a legal opinion, but based on 
     20   your personal knowledge, if you can answer, go ahead.
     21   BY MS. MILLER:
     22        Q.  I'm actually asking for your understanding of 
     23   GPL license itself.
     24        A.  It's my understanding.  
     25        Q.  Okay.  That's all I'm asking for.


      1        A.  First of all, there is no such thing as an 
      2   original work.  If you take code from someone else, 
      3   it's not original anymore, is it?
      4        Q.  To the extent that I add original pieces to 
      5   that, that delta, as I'm using it, could be considered 
      6   an original work.  And that's the way I'm using it in 
      7   this hypothetical.
      8        A.  Okay.  Considering the definition we're using 
      9   here of "original," you've got -- could you restate the 
     10   question?  Sorry.  It's easy to lose track.
     11            (The record was read by the Reporter.)
     12            MR. HERNSTADT:  Restate all the objections.
     13            Go ahead.  
     14            THE WITNESS:  From what I understand, you 
     15   would be copyrighting your changes.  You wouldn't be 
     16   copyrighting the derived software code.
     17            That said, your changes would include any 
     18   modifications you made to the code that you co-opted.  
     19   So it would cover a lot of the software, but you would 
     20   have to acknowledge copyright of the software which you 
     21   co-opted.
     22            Again, that's my understanding.  That's how I 
     23   treat the GPL.
     24   BY MS. MILLER:
     25        Q.  Okay.  Fair enough.  Thanks very much.


      1            Now turning to Paragraph 4 of your 
      2   declaration, you indicate that you very closely 
      3   followed the efforts of various individuals and/or 
      4   groups to develop a DVD player for machines using the 
      5   Linux operating system (as well as for other 
      6   open-source operating systems) including those of the 
      7   international LiVid group."  
      8            What individuals' efforts have you followed 
      9   very closely that you refer to in that paragraph?  Do 
     10   you know their names?
     11        A.  I don't.
     12        Q.  Do you know their nicks or nicknames on the 
     13   internet?
     14        A.  What I mean by "closely followed" was the 
     15   original LiVid group was hosted on a machine called the 
     16   Open Projects Machine, and that was hosted in our 
     17   network.  So when I say "closely followed," I try to 
     18   pay attention to the people hosted on our network, 
     19   because if they get in trouble, I need to be 
     20   responsible to give them support if need be or say 
     21   "What are you doing" or whatever.
     22            So specifically for the LiVid group when the 
     23   initial cease and desist went out from I believe the 
     24   DVD CCA, again, I may be wrong, it's been probably six, 
     25   seven months now, right, I sent an e-mail to the LiVid 


      1   group saying, "What would you like us to do?  We're 
      2   here for you."
      3            And they said at that point that they would 
      4   probably go to Germany and get away from the laws of 
      5   the United States so they could enjoy the freedoms of 
      6   development they had there.
      7        Q.  When you say "we were hosting," you do you 
      8   mean VA Linux Systems --
      9        A.  Yes.
     10        Q.  -- your employer was hosting the LiVid group's 
     11   development efforts?
     12        A.  Yeah.  VA has hosted -- VA hosts currently 
     13   somewhere around I suppose 6,000 open-source projects 
     14   on our network via sourceforge.  Back then, it was a 
     15   much smaller number of projects.  But still it's 
     16   something we've always felt was our moral obligation, 
     17   since our company is based on the efforts of these 
     18   folks.
     19        Q.  The next sentence of Paragraph 4, you say you 
     20   "also followed with great attention the related efforts 
     21   by some individuals and/or groups to 'crack' the CSS 
     22   code that encrypts the data on DVDs."
     23            What individuals or groups were you referring 
     24   to in that declaration or that paragraph?
     25        A.  Specifically LiVid; in general, just the 


      1   different efforts out there.  It's an interesting 
      2   problem, so...
      3        Q.  What to your knowledge were the efforts of the 
      4   LiVid group to crack the CSS code?
      5        A.  Reverse engineering.
      6        Q.  How did you gain that knowledge?
      7        A.  Just through reading their web site as to what 
      8   they were doing and how they were going about it.
      9        Q.  Do you have an understanding of what they were 
     10   attempting to reverse engineer to crack the CSS?
     11        A.  Sure.  The CSS, the Contents Scrambling 
     12   System, was the only thing that was keeping the Linux 
     13   users from being able to watch DVDs under Linux.  
     14   Because the file system on the DVD was understood.  
     15   That was no problem.  The MPEG encoding mechanism 
     16   that's used for DVDs, again, it's understood.   There 
     17   are already players out there.
     18             The only thing standing in our way was this 
     19   inability to read the data off the disks.  So that was 
     20   keeping people from being able to play their DVDs on 
     21   their laptops or desktops, whatever. 
     22        Q.  To your knowledge, were there attempts by the 
     23   LiVid group to reverse engineer particular DVD players?
     24        A.  As far as particular DVD players, I didn't get 
     25   that deep into it.  It was our stated goal to reverse 


      1   engineer CSS.  So they had to do that to do what they 
      2   wanted to do.
      3        Q.  And where did you first hear about or read 
      4   about that stated goal?
      5        A.  I believe it was on their web site.  But 
      6   again, this was a long time ago.
      7        Q.  How long ago do you first recall reading about 
      8   this stated goal of the LiVid group?
      9        A.  Well, I think when they -- everyone was 
     10   talking about how DVD under Linux was a good thing that 
     11   needed to get done, right?  So two groups were formed 
     12   specifically, and that was LiVid and LS -- LSVideo or 
     13   LS -- 
     14        Q.  LSDVD?
     15        A.  LSDVD, yeah.  And I guess the LS one was 
     16   supposed to be the licensed player, and the LiVid one 
     17   was the unlicensed player.  Again, I'd have to go back.
     18            But from what I understood then, and this was 
     19   about -- I guess about a year ago, maybe a little bit 
     20   longer.  I don't know.  I'd have to do some searching 
     21   on the net to be able to figure that out, to find out 
     22   when they started their project.  Because that would be 
     23   about when I would have heard about it.
     24        Q.  How do you know that the LSDVD group was 
     25   intended to be the licensed group, as you just 


      1   testified?
      2        A.  I'm not sure.  It just seems like that's where 
      3   it fits in my brain.
      4        Q.  Do you remember reading about the development 
      5   efforts of the LSDVD group on a web site somewhere?
      6        A.  Not really, no.
      7        Q.  So you have no recollection of where you 
      8   learned about the LSDVD group's efforts to be licensed 
      9   as you testified?
     10            MR. HERNSTADT:  Objection to form.  Sorry.  
     11   Objection to form.  I think that misstates the 
     12   testimony.  
     13            Go ahead.
     14            THE WITNESS:  Okay.  Again, the one I followed 
     15   closely was LiVid.  I didn't follow the LSDVD.  They 
     16   weren't hosted on our network, frankly.  I did care 
     17   what they were doing, great, whatever, more power to 
     18   them.  
     19            Again, I was more interested in what was going 
     20   on with LiVid.  LiVid was the higher-profile project, 
     21   also. 
     22   BY MS. MILLER:
     23        Q.  Do you know the names of any of the 
     24   individuals involved in the LSDVD project?
     25        A.  No.


      1        Q.  Do you know the names of any of the 
      2   individuals involved in the LiVid project?
      3        A.  I could probably go back and figure it out.  I 
      4   probably know people who were in it, but not off the 
      5   top of my head, no. 
      6            MR. HERNSTADT:  Off the record.
      7            (Discussion had off the record.)
      8   BY MS. MILLER:
      9        Q.  Turning your attention to Paragraph 5 of your 
     10   declaration, Mr. DiBona, where you refer to the Court's 
     11   preliminary injunction decision in this case, when was 
     12   the last time you read that decision?
     13        A.  Some time ago.
     14        Q.  Can you give me an approximate time frame?  I 
     15   mean six months ago?
     16        A.  No.  I'd say probably right as I was preparing 
     17   this document.
     18        Q.  So around end of April, early May?
     19        A.  Yeah.  Well, it would be before May, because I 
     20   mean I guess this was filed in very early May, so 
     21   probably late April.
     22        Q.  And you haven't read the decision since then?
     23        A.  No.
     24        Q.  Didn't read it in preparation for this 
     25   deposition?


      1        A.  Nope.
      2        Q.  Now, you say in Paragraph 5 that you are, 
      3   "aware of the Court's apparent belief that DeCSS poses 
      4   a great risk of copying by 'pirates' who could use 
      5   DeCSS to create innumerable, commercially viable 
      6   infringing digital copies of a DVD movie."  
      7            What in your mind is a "commercially viable 
      8   infringing digital copy of a DVD movie"?
      9        A.  It's worth noting that I was aware of the 
     10   Court's apparent belief that DeCSS poses that risk, not 
     11   that I personally agree with it.  
     12            For me, if you're asking what I -- I guess --  
     13   what exactly are you asking?  
     14        Q.  I'm asking what you meant when you used the 
     15   phrase "commercially viable, infringing digital copies 
     16   of a DVD movie."
     17        A.  Specifically, I meant that it was worth using 
     18   the mechanisms of DeCSS to get a copy of the movie 
     19   versus just going out and spending $20.                 
     20            Frankly, I think people's time is worth more 
     21   than the trouble of using DeCSS to do large-scale 
     22   pirating via the net or via backup mechanisms that 
     23   would lend themselves well to the file size of the 
     24   DeCSS.
     25            I mean from a materials cost alone, you know, 


      1   just bringing the copy of the VOB files, the encrypted 
      2   VOB files is more costly than buying a DVD.  So that's 
      3   what I meant by commercially viable. 
      4            MS. MILLER:  Could you read back the last 
      5   answer, please.
      6            (The record was read by the Reporter.)
      7   BY MS. MILLER:
      8        Q.  What's your understanding of the materials 
      9   cost associated with using DeCSS?  
     10            MR. HERNSTADT:  Objection to the form. 
     11   BY MS. MILLER:
     12        Q.  As you've used it in the last answer that you 
     13   just gave.
     14            MR. HERNSTADT:  Then I object to the compound 
     15   questions, because he gave several examples.  Do you 
     16   want him to just do one at a time?
     17            MS. MILLER:  Your objection is noted, 
     18   Mr. Hernstadt. 
     19   BY MS. MILLER:
     20        Q.  But you used the phrase "materials cost."
     21        A.  So if I wanted to copy Air Force One, for 
     22   instance, that's about 4 gigabytes of data.  To 
     23   transport 4 gigabytes of data, I either have to have a 
     24   high-speed network connection that would lend itself 
     25   well to transmitting that, which would be costly.  I'd 


      1   either have to put it on a hard drive and pass that 
      2   around, and the hard drive to hold that would cost a 
      3   minimum of $100.  I would have to back it up to tape 
      4   which could handle that size of file, say a DAT or a 
      5   VXA tape or something, and those would cost a maximum 
      6   of say 20 to $30 just for the tape itself, not counting 
      7   the cost of the drive or the machine to run the drive, 
      8   right?  
      9            So all these things cost more in my mind than 
     10   just buying the stupid DVD and having the convenience 
     11   of being able to play it.  And that's not even counting 
     12   my time, which I billed out pretty expensively, back 
     13   when I was consulting, so...
     14        Q.  Okay.  We'll come back to that.
     15            In Paragraph 6 of your declaration, you say 
     16   you "have no personal knowledge of anyone using DeCSS 
     17   to view or copy a DVD."  Do you see where I'm reading 
     18   there?
     19        A.  Mm-hmm.
     20        Q.  Okay.  But you've just previously testified 
     21   that when you used DeCSS, it creates a copy of the .VOB 
     22   files; is that correct?
     23        A.  Yes.
     24        Q.  You say that "except for," and continuing 
     25   reading at Paragraph 6, "a single professional 


      1   demonstration presented by at the Atlanta 
      2   Linux Showcase trade show at which DeCSS was used to 
      3   play (but not copy) a DVD."  
      4        When was this Atlanta Linux Showcase trade show 
      5   that you referred to in Paragraph 6?
      6        A.  I suppose that would have been October or 
      7   November of 1999.  A short visit to 
      8   would show you the date of that show.
      9        Q.
     10        A.  Yeah.
     11        Q.  Now, you've already testified that you used 
     12   DeCSS in conducting tests that you've documented in 
     13   this declaration, and we'll get to that aspect of your 
     14   declaration.  But does DeCSS in and of itself have any 
     15   player functionality?
     16        A.  No.  
     17        Q.  So in this demonstration at the Atlanta Linux 
     18   Showcase trade show, how was DeCSS used to play a DVD?
     19        A.  That was probably a misstatement in No. 6.  I 
     20   should have clarified that or actually written that 
     21   correctly, I should say.  It's my assumption they used 
     22   DeCSS to get the data off of the DVD so they could play 
     23   it using xmovie or another utility.
     24        Q.  Do you actually know what utility they used to 
     25   play it?


      1        A.  I do not.
      2        Q.  So you're assuming they used xmovie?
      3        A.  I'm assuming they used xmovie because that's 
      4   sort of the default VOB player that people would use on 
      5   their Linux, and it was under Linux.  So I knew that 
      6   they had to use something.
      7             That said, it may have been an earlier 
      8   version of this OMS player we spoke about earlier.  I 
      9   don't know.  It's been a while.  It may have even been 
     10   a while when I wrote this.
     11        Q.  But you don't know at all, in fact, what they 
     12   used to play the movie at this Atlanta Linux Showcase 
     13   trade show?
     14        A.  I'd say that's correct.
     15        Q.  It's correct that you don't know?
     16        A.  It's correct that I don't know.
     17        Q.  But to your understanding, DeCSS only executes 
     18   under the Windows operating system, correct?  
     19            MR. HERNSTADT:  Objection.  Form.
     20   BY MS. MILLER:
     21        Q.  Do you know if they were running the DeCSS 
     22   program during this demonstration under the Windows 
     23   operating system?
     24        A.  It was my impression that they weren't running 
     25   Windows at all there.  So they must have -- if they 


      1   used DeCSS at all, they would have had to have used it 
      2   prior to the show to make the VOB files decrypted and 
      3   available.
      4        Q.  I see.  So you're not even sure whether or not 
      5   they used DeCSS to decrypt the VOB files?
      6        A.  Now that I think about it, no, I'm not.
      7        Q.  Okay.  So this statement in Paragraph 6 of 
      8   your declaration that DeCSS was used to play but not 
      9   copy a DVD, you actually -- as you've testified here 
     10   today, you have no knowledge of whether or not DeCSS 
     11   was even used?
     12        A.  In retrospect, this Paragraph 6 may be -- I 
     13   should say the last bit of it on from "except" on 
     14   through "DVD," could possibly be incorrect.
     15        Q.  Could possibly be incorrect?
     16        A.  Yeah.  It may be appropriate to say that DeCSS 
     17   was used as part of the process of getting the VOB file 
     18   which they then played at the show, but again, I can't 
     19   prove that.  I can't state that with any certainty.
     20        Q.  So is it fair enough to say that as you've 
     21   just corrected this paragraph in your declaration that 
     22   you have no personal knowledge of anyone using DeCSS to 
     23   view or copy a DVD, full stop?
     24        A.  Yeah.  That would be an appropriate way to 
     25   rewrite that paragraph.


      1        Q.  Paragraph 7, you say you were asked in early 
      2   April "by counsel for the defendants in this lawsuit to 
      3   investigate the use by the Linux community - and/or 
      4   anyone else -  of DeCSS in any context, including to 
      5   view or copy DVDs."  
      6            Do you the sentence that I have just read?
      7        A.  Mm-hmm.
      8        Q.  And then you say, going on in the next 
      9   sentence, that between April 10th and 20th, you "posted 
     10   general inquiries about DeCSS-related copying to the 
     11   Linux, other open-source and 'hacker,' (in the 
     12   nonpejorative sense...) communities via a variety of 
     13   mailing lists and websites, including but not limited 
     14   to the SVLUG and DeCSS mailing lists and the 
     15 website."  
     16             Do you see what I've just read?
     17        A.  (Nods head up and down.)
     18        Q.  I just want to talk to you about this survey 
     19   that I just read.
     20            What other mailing lists and web sites, first 
     21   of all, did you post these inquiries besides the two 
     22   you just mentioned?  Because you say "including but not 
     23   limited to."
     24        A    As part of this mail, I asked people to 
     25   forward this around.  So it's sort of an assumption 


      1   that they would then pass it around to whomever.  I 
      2   posted it specifically myself to SVLUG and the DeCSS 
      3   mailing list.
      4        Q.  And SVLUG is the Silicon Valley Linux Users 
      5   Group?
      6        A.  Yes, it is.
      7        Q.  So personally, you posted it to the SVLUG and 
      8   the DeCSS mailing list and, those three?  
      9        A.  It should be stated the web site, 
     10   the system administrator for that web site said he 
     11   would be putting something up on that web site so 
     12   people could see my query.  I did not personally put 
     13   that up there.
     14        Q.  Do you know whether the system administrator 
     15   ever did?  Did you ever check that for yourself?
     16        A.  I'm pretty sure he did.  I didn't actually 
     17   check myself, but I have no reason to think otherwise. 
     18        Q.   But personally you posted to the SVLUG and 
     19   the DeCSS mailing list?
     20        A.  Yes.
     21        Q.  Now, I believe that you testified just a 
     22   couple of answers ago that you had asked people to pass 
     23   this along to other sites.  Is that correct?
     24        A.  Yeah.
     25        Q.  Do you know if anyone, in fact, did that?


      1        A.  I have no way of knowing for sure.
      2        Q.  Did anyone ever respond to an e-mail saying, 
      3   "Hey, I passed this along to X site"?
      4        A.  No.
      5        Q.  So you don't know whether, in fact, the 
      6   inquiry that you posted went anywhere beyond the SVLUG 
      7   and DeCSS mailing lists?
      8        A.  That's correct.
      9            MS. MILLER:  How much time?  
     10            THE VIDEOGRAPHER:  Two minutes. 
     11   BY MS. MILLER:
     12        Q.  So besides posting the inquiries to the SVLUG 
     13   and DeCSS mailing lists, you also reference in the 
     14   first part of that sentence that you have constant 
     15   contacts and conversations with members of the Linux 
     16   community.
     17        A.  That's correct.
     18        Q.  Do you see that phrase?  So were your constant 
     19   contacts and conversations with members of the Linux 
     20   community again part of this survey in addition to the 
     21   postings that you put on these mailing lists?
     22        A.  I'd say it's consistent to say that the people 
     23   who I talked to about this issue, none of them had ever 
     24   used DeCSS.  So I don't know if that answers your 
     25   question.


      1        Q.  I'm just trying to get a sense of the universe 
      2   of people that were --
      3        A.  That saw this query.
      4        Q.  -- that were the subjects of this general 
      5   inquiry that you made when you were conducting this 
      6   survey, let's say, of the use of DeCSS.  I'm just 
      7   trying to get a feel for the population, if you will.
      8        A.  All right.  I spoke with people about this at 
      9   the different Bay Area Linux Users Groups, BayLUG, the 
     10   Silicon Valley Linux Users Group, as well.  We had an 
     11   install fest, and I talked with people about it there.   
     12            I don't want to confuse anyone to make you 
     13   think it's a professional survey I did.  It's cursory 
     14   at best.
     15            MS. MILLER:  We will get to that.  But I think 
     16   that's a good time to take a break, because the 
     17   videographer tells me it's time to change the tape.
     18            THE VIDEOGRAPHER:  Off the record.  This marks 
     19   the end of videotape 1.  The time is 12:03 p.m. 
     20            (Break taken from 12:03 to 12:09 p.m.)
     21            THE VIDEOGRAPHER:  On the record, this marks 
     22   the beginning of videotape No. 2 in the resumption of 
     23   the deposition of Chris DiBona on July 8, 2000.  The 
     24   time is 12:09 p.m.  Please continue.
     25   BY MS. MILLER:


      1        Q.  Okay, Mr. DiBona, we were talking before the 
      2   tape break about Paragraph 7 of your declaration.  Now, 
      3   I take it you're not a statistician; is that correct?
      4            MR. HERNSTADT:  Object to the form.
      5            THE WITNESS:  That is correct.
      6   BY MS. MILLER:
      7        Q.  Do you have any training whatsoever in 
      8   statistics, or did you take any course work in 
      9   statistics?
     10            MR. HERNSTADT:  Objection to form.
     11            THE WITNESS:  I did take a statistics course 
     12   in school, of course, as well as a discrete math class 
     13   that dealt with permutations and such.  Outside of 
     14   that, no.
     15   BY MS. MILLER:
     16        Q.  I believe you indicated in your last answer 
     17   that this survey wasn't intended to be a statistically 
     18   valid survey.
     19            MR. HERNSTADT:  Objection to form.  That 
     20   misstates the testimony.
     21            Go ahead.
     22            THE WITNESS:  It was meant more to give a 
     23   feeling of what technically capable and competent 
     24   people could do and were doing with DeCSS.
     25   BY MS. MILLER:


      1        Q.  Then the universe of technically competent and 
      2   capable people that you've just testified to, as far as 
      3   your knowledge, would be limited to the SVLUG and DeCSS 
      4   mailing lists where you personally posted the 
      5   inquiries?
      6            MR. HERNSTADT:  Objection to form.  
      7   Argumentative.
      8            Go ahead.  You can answer.
      9            THE WITNESS:  I don't want to imply that only 
     10   the people I talked to are technically competent.  That 
     11   would be incorrect.
     12            That said, the people that I did query are 
     13   technically competent.  But by no measure did I talk to 
     14   every single person on the planet who has the technical 
     15   capability to run DeCSS.
     16   BY MS. MILLER:
     17        Q.  Paragraph 8 in your declaration, you say that 
     18   approximately 2,000 people responded to your e-mails 
     19   and postings; is that correct?
     20        A.  That's actually grammatical error on my part.  
     21   It's my assumption that about 2,000 people received the 
     22   e-mail that I sent out specifically myself on the DeCSS 
     23   and SVLUG mailing lists.
     24            Of those, the only two people who replied -- 
     25   well, of those, that's what I speak about in 


      1   Paragraph 8.  So I don't want to -- I did not get 2,000 
      2   responses.
      3        Q.  That's what I'm trying to make sure that we 
      4   clarify.
      5        A.  I should have written that much better.
      6        Q.  So the best of your recollection is you sent 
      7   out approximately 2,000 e-mails?
      8        A.  I sent off one or two e-mails to a list that 
      9   had a thousand or so members.
     10        Q.  Gotcha.
     11        A.  So, yeah.
     12        Q.  And two people responded?
     13        A.  Two people responded positively that they had 
     14   used DeCSS to view DVDs.  I got a number of people who 
     15   replied saying "I've got it but I never used it," or "I 
     16   never used it."  So basically I got back a couple of 
     17   negatives as well as the two very positive ones here.
     18        Q.  A couple?
     19        A.  A few.  I'd need to go back and check.
     20        Q.  Do you still have these e-mail responses?
     21        A.  I believe I've got them saved.  I did have a 
     22   system crash a couple of months ago, but I believe 
     23   these are saved.  I would have to go back and check to 
     24   be sure.
     25        Q.  If you could go back and do that check, I'd 


      1   appreciate it.
      2            MS. MILLER:  And Mr. Hernstadt, I'd like to 
      3   call for a production of those e-mails if Mr. DiBona is 
      4   able to retrieve them.
      5            MR. HERNSTADT:  Okay.  You have that request.
      6            I'm sorry, just to clarify, do you also want 
      7   the one he sent out?  
      8            MS. MILLER:  Love to have it.
      9            MR. HERNSTADT:  Okay.  All the e-mails 
     10   involved?
     11            THE WITNESS:  Now, some people did insist on 
     12   anonymity.
     13            MS. MILLER:  That's fine.  If you want to 
     14   redact their names or redact their e-mail mailing list, 
     15   just so you understand, we have a confidentiality 
     16   stipulation in this case that will allow a party to the 
     17   lawsuit to protect the identities of individuals whose 
     18   identities require protection.  Mr. Hernstadt knows how 
     19   to appropriately designate certain things that are 
     20   confidential.
     21            MR. HERNSTADT:  A big marker.
     22   BY MS. MILLER:
     23        Q.  Going back to your previous answer to my 
     24   question, you said that there were a few responses that 
     25   you got back from people saying they never used it or 


      1   had it but never used it.  Again, I don't want to 
      2   misstate what you said.
      3        A.  I believe that's accurate.  Again, if we go to 
      4   the process of reduction, we'd know for sure.  Because 
      5   I believe I have them saved in my files. 
      6        Q    The two people that you discussed in 
      7   Paragraph 8 of your declaration that said they had used 
      8   DeCSS to view DVDs they had purchased, did they 
      9   indicate to you how they had viewed the DVDs?
     10        A.  No. 
     11            MR. HERNSTADT:  You mean other than as set 
     12   forth in this paragraph?
     13            MS. MILLER:  Correct. 
     14   BY MS. MILLER:
     15        Q.  We've already established that DeCSS in and of 
     16   itself doesn't allow you to play the movie content. 
     17        A.  That's correct.
     18        Q.  So they didn't indicate to you how they 
     19   actually played the movies after they had used DeCSS.  
     20   That was my question.
     21        A.  That's correct.
     22        Q.  Thank you.  Then you go on in Paragraph 8 to 
     23   describe at least some of the "significant problems 
     24   with playback" that the two people related to you.
     25            In Paragraph 9, you state, "There are several 


      1   explanations for the results obtained by these isolated 
      2   experiments.  First, it is technically quite 
      3   complicated to use DeCSS to copy DVDs."  
      4            Do you see that statement?
      5        A.  Yes.
      6        Q.  When you conducted your experiment on Air 
      7   Force One using DeCSS, how long did it take you to 
      8   decrypt the movie file using DeCSS?
      9        A.  The specific file that I copied off the Air 
     10   Force One DVD was the trailer, because it was the 
     11   smallest file.  Because I didn't want to sit there and 
     12   watch 4 gigs get copied.  It was about 140 megabytes of 
     13   data, and it probably took about 5 to 10 minutes to 
     14   copy off the DVD.  Actually, it was probably less than 
     15   that.  I could time it, if, you know, it is needed for 
     16   this.
     17            But the technical difficulties I talk about 
     18   here, to go from the DVD to playing it on Linux, you 
     19   know, first you need DeCSS to copy the file.  Then you 
     20   need to get that file on over onto your Linux machine. 
     21   Then you need to play that file using xmovie.  So 
     22   that's what I mean by "technical difficulty" there.
     23        Q.  Based on what you said, that it took you 5 to 
     24   10 minutes to copy the trailer file from Air Force 
     25   One --


      1        A.  I'm not certain about that time.
      2        Q.  Okay.  But that's your best recollection?
      3        A.  It's a guess.  I mean, again, depending on 
      4   your hardware also, that's going to change.  If you 
      5   have a faster DVD player and a faster CPU than I have 
      6   on my laptop, that changes completely. 
      7        Q.   But you already told us what CPU you're 
      8   running on your laptop; you already told us what the 
      9   configuration of your computer is, correct? 
     10        A.  I'm not certain I told you the CPU speed.
     11        Q.  I'm sorry.  I stand corrected.
     12            Can you tell me what the CPU speed is?
     13        A.  I believe its a 400 megahertz CPU.
     14            MR. HERNSTADT:  Really?  
     15            THE WITNESS:  Yeah.
     16            MR. HERNSTADT:  Got to upgrade, dude.
     17   BY MS. MILLER:
     18        Q.  You told us the RAM, but you're correct, you 
     19   did not tell us the CPU part.
     20        A.  Right.
     21        Q.  So the actual process in your experiment in 
     22   using DeCSS, the process of using DeCSS itself, would 
     23   you characterize that as complicated?
     24        A.  Not for a somewhat experienced computer user.
     25            I should also note when I say -- I think part 


      1   of what I meant in this "technically quite complicated 
      2   to use DeCSS" portion in Paragraph 9 is I also mean 
      3   that, and I state it later, it's not just the process 
      4   of getting the video to start playing under Linux from 
      5   DVD to that.  It also means what the computer has to 
      6   do.  And I state that somewhat later there in that 
      7   paragraph about the CPU and memory demands of playing 
      8   back videos.
      9            Because specifically Paragraph 9, it's talking 
     10   about the results that those individuals had and 
     11   specifically their video and audio problems and why 
     12   those problems exist.
     13            So it shouldn't be taken out of context.
     14        Q.  Okay.
     15        A.  So while it's not that hard to go from the VOB 
     16   file encrypted on the DVD drive to playing it, the 
     17   steps involved there can be somewhat demanding on the 
     18   machinery.  So that should be said.
     19        Q.  And I understand all of that, and thank you 
     20   for that explanation.
     21             But what I'm trying to get to really, though, 
     22   is your statement where you say "it's technically quite 
     23   complicated to use DeCSS."  By that statement, were you 
     24   meaning the actual running of the DeCSS utility itself 
     25   or the additional steps after that leading up to 


      1   playing the movie?
      2        A.  I meant the entire process.
      3        Q.  The entire process.  Okay.  I understand.
      4        A.  Holistically.
      5        Q.  Gestalt.
      6            Now, at the end of Paragraph 9, in giving an 
      7   explanation why the resulting video quality is very 
      8   poor, as you characterize it, after using the DeCSS 
      9   utility to decrypt a movie, you state as one of the 
     10   reasons that "the developers of the DeCSS application 
     11   were unable to enlist the help of any hardware decoder 
     12   that may exist on the video card."           
     13            Do you see where I've just read?
     14        A.  Mm-hmm.
     15        Q.  Who were the developers of the DeCSS 
     16   application, to your knowledge?
     17        A.  The Masters of Reverse Engineering in Germany, 
     18   or I should say Europe, because they spread across a 
     19   number of different developers.
     20            But in fact, this sentence is flawed, because, 
     21   again, the DeCSS application doesn't do the playing.  
     22   It's more accurate to say that the people who wrote the 
     23   MPEG playing software, since they didn't have access to 
     24   the chip on the video card that allows for fast MPEG 
     25   decoding, that's why the video quality is poor.  It 


      1   really has nothing do with DeCSS.  That's an inaccurate 
      2   statement.
      3        Q.  That's what I was trying to understand.        
      4            Have you had any conversations with any of the 
      5   members of the Masters of Reverse Engineering?
      6        A.  I traded a few e-mails with Jon Johansen, but 
      7   they were trivial.
      8        Q.  How long ago was this e-mail exchanged with 
      9   Jon Johansen?
     10        A.  That's a good question.  Two or three months, 
     11   four months.
     12        Q.  Two to three months ago?
     13        A.  Two to four months ago.
     14        Q.  And you say they were trivial.  What were the 
     15   substance of the e-mail communications?
     16        A.  I believe one of them was a reporter wanted 
     17   his contact information, and I forwarded that 
     18   information to Jon.  I think that's the -- pretty much 
     19   the nature of our discussions.  They weren't of a 
     20   technical nature at all. 
     21        Q.  Do you still have those e-mails saved 
     22   anywhere?
     23        A.  It's likely I do.
     24            MS. MILLER:  Mr. Hernstadt, I'd like to call 
     25   for the production of those e-mails to the extent 


      1   Mr. DiBona is able to retrieve them.
      2            MR. HERNSTADT:  Okay.  Taken under 
      3   advisement. 
      4   BY MS. MILLER:
      5        Q.  Paragraph 10 of your declaration, you say in 
      6   the first sentence, "Except under a very specific and 
      7   unusual set of circumstances (I am hypothesizing that 
      8   such circumstances are possible, since as far as I am 
      9   aware, it hasn't yet been done), it is also nearly 
     10   impossible to enjoy a DVD played through DeCSS because 
     11   of the syncing problems that make movies appear like 
     12   dubbed martial arts films."
     13            Now, you've testified earlier that DeCSS 
     14   doesn't actually play a DVD, correct?
     15        A.  That's correct.
     16        Q.  So what did you mean by the statement in the 
     17   first sentence of Paragraph 10?
     18        A.  If you were to replace DeCSS with a playing 
     19   program under Linux, that's exactly what I meant.       
     20            DeCSS is, again, just a mechanism to provide 
     21   the file, as we know.  So an accurate way of stating 
     22   this sentence would be to say, "Except under a very 
     23   specific and unusual set of circumstances," and so on, 
     24   "it's impossible to enjoy a DVD played through xmovie," 
     25   for instance, or any other player programs that may 


      1   exist because they would have the same syncing 
      2   problems.
      3        Q.  But you personally have only attempted to play 
      4   a movie that you've decrypted using DeCSS through 
      5   xmovie --  
      6        A.  Yes.  
      7        Q.  -- is that correct?
      8        A.  That is correct.
      9        Q.  You've not used any other player programs to 
     10   attempt to --
     11        A.  I haven't used any other player programs under 
     12   Linux.  I have watched using the Mediamatics program 
     13   that came with the laptop. 
     14            THE REPORTER:  I'm sorry?  
     15            THE WITNESS:  I'm sorry.  The Mediamatics, 
     16   M-E-D-I-A-M-A-T-I-C-S.  
     17   BY MS. MILLER:
     18        Q.  In the next sentence in Paragraph 10, you 
     19   say, "When one combines the poor playback quality 
     20   created by these technical difficulties with the 
     21   exceptionally large size of the data files, which makes 
     22   the copying and distribution of decrypted versions of 
     23   movies from a DVD so costly and complicated as to be 
     24   unfeasible, it is clear that DeCSS is not a useful tool 
     25   for the piracy, let alone viewing, of DVDs."


      1            What is your definition of "piracy," or how 
      2   were you using the word "piracy" in that sentence?
      3        A.  I'd say that piracy would be the co-opting 
      4   of -- in this case, where I'm specifically talking 
      5   about movies, right, taking movies and using them in 
      6   such a way that isn't -- that isn't legitimate 
      7   according to the license granted to you when you 
      8   purchase the DVD, not contradicting fair use.  Not 
      9   contradicting fair use.
     10        Q.  What's your understanding of the license 
     11   that's granted when you purchase a DVD, as you've just 
     12   used the phrase?  
     13            MR. HERNSTADT:  Objection to the form, and 
     14   also objection to this line of questioning insofar as 
     15   it seeks legal opinions or the legal conclusions from 
     16   Mr. DiBona, who is not a lawyer.
     17            MS. MILLER:  Mr. DiBona just made a statement 
     18   about his understanding of the license that is granted 
     19   when a DVD is purchased.  I'd like to explore what he 
     20   meant by that statement.
     21            I'm not asking for a legal conclusion.  I 
     22   understand you're not a lawyer.
     23            MR. HERNSTADT:  I'm just making the record.
     24            THE WITNESS:  It's my understanding derived 
     25   from when you hit play on a DVD, you're given that FBI 


      1   warning, I guess it's Federal Code 701-dot-something, 
      2   which I am completely not sure of what that dot is, and 
      3   it specifically says that these are for noncommercial 
      4   use, meaning probably that I can't show it in a large 
      5   movie theater to 20 people and charge them entering, 
      6   but that it's for home use and for my own use.
      7             So my idea of fair use is I should be able to 
      8   take this DVD, which I have paid good money for, watch 
      9   it myself, my family, friends who are over, freely.  I 
     10   should be able to take it on planes, watch it there.  I 
     11   should be able to make a copy onto another media and 
     12   watch it that way, if I so chose.  Because I've paid 
     13   for that privilege.
     14            So that's my idea of what fair use is.
     15   BY MS. MILLER:
     16        Q.  I understand.  But I want to go back to my 
     17   original question, because I didn't ask you for your 
     18   understanding of fair use.  I asked you for your 
     19   understanding of the word "piracy" which you've used in 
     20   Paragraph 10.  
     21            If I understand your answer, and I don't mean 
     22   to misstate it, I believe you said that piracy, 
     23   according to your definition, is co-opting, as used in 
     24   this case, a movie file and using it for purposes other 
     25   than the license that's granted when you purchased the 


      1   movie.
      2            Is that what I understood your answer to be?
      3            THE WITNESS:  No. 
      4            MR. HERNSTADT:  Let me object.  This is why 
      5   when you have lay people stating their understandings 
      6   of legal situations that you run into problems.  
      7            I'll -- I mean Mr. DiBona, you should answer 
      8   the question to the best of your ability, but I have to 
      9   direct you not to make any kind of a legal conclusion 
     10   or legal statement about the meaning of a license or 
     11   entering into a license or anything like that.
     12            THE WITNESS:  Okay. 
     13   BY MS. MILLER:
     14        Q.  Okay, Mr. Hernstadt's objection is noted, and 
     15   again I just want to restate I'm just trying to 
     16   understand your understanding of piracy as you've used 
     17   the word in Paragraph 10 of your declaration.           
     18            So actually, I'd like to ask the court 
     19   reporter to go back and read your original answer, and 
     20   then we can just go from there.  I understand there has 
     21   been a lot of objecting, and I just want to make sure 
     22   we have a very clear record.
     23            (The record was read by the Reporter.)
     24            THE WITNESS:  So your question exactly is what 
     25   I consider piracy?


      1   BY MS. MILLER:
      2        Q.  Right.  And you've answered that question.     
      3            Now, as you've used the phrase in your answer, 
      4   what are the other ways in which a person might co-opt 
      5   a movie that's not consistent with your understanding 
      6   as you testified to of the license that's granted when 
      7   you purchase the movie?
      8            MR. HERNSTADT:  Objection to form and 
      9   objection to that part that calls for legal conclusion 
     10   or is based upon a legal conclusion.  
     11            But go ahead.
     12            THE WITNESS:  From what I understand your 
     13   question to be, and I'm not trying to be difficult, 
     14   honestly, from what I understand your question to be, 
     15   I'd say that what I consider piracy would be if 
     16   somebody were to take a DVD to take it to a stamping 
     17   plant without authorization or on order of any company, 
     18   to make copies of it and then sell it on a street 
     19   corner, a stamping plant being a company that can copy 
     20   DVDs just using a glass master.  
     21   BY MS. MILLER:
     22        Q.  I understand.
     23        A.  That's one definition absolutely of piracy.  
     24   And it's extremely clear to me that that's clearly 
     25   piracy.  


      1            If somebody were to take that DVD and record 
      2   it using a bank of VHS video machines and sell those 
      3   tapes, again, on a street corner or through other 
      4   mechanisms, again, that would be piracy.  Very clearly 
      5   so.  
      6            If somebody were to take that DVD and make a 
      7   copy and sell it to someone else while retaining the 
      8   copy of the DVD, again, that would be piracy.           
      9            So those are ways that I see that -- that's 
     10   piracy in my definition.
     11            Now, if somebody were to use DeCSS to make a 
     12   copy of the VOB files and to sell them some way over 
     13   the internet, that would again be piracy, or to make 
     14   them available to the people who would then sell them, 
     15   not by permission of the original copyright holder, 
     16   that would clearly be piracy to me.
     17        Q.  So your definition of piracy as you've used it 
     18   seems to me to always include selling of unauthorized 
     19   copies.
     20        A.  Not necessarily.
     21            MR. HERNSTADT:  Object to the form.  
     22            Go ahead.
     23            THE WITNESS:  If somebody were to -- if 
     24   somebody were to go to the internet and find some VOB 
     25   file, not that I've found people doing this, I'm not 


      1   asserting that's possible, but with that caveat stated, 
      2   if somebody were to download a copy of a movie that 
      3   they didn't pay for and save it and watch it, that 
      4   would clearly be piracy.  Absolutely. 
      5            Then you have sort of gray areas; for 
      6   instance, a library.  They just want to preserve art 
      7   for the rest of our times.  Well, that would be a 
      8   different story in my mind.  
      9        Q.  Sure. 
     10        A.  I may have a more liberal idea about that 
     11   than, say, Time Warner.  
     12            If it was a teacher who was having a class in, 
     13   say, media criticisms and they wanted to show Citizen 
     14   Kane and it's on a web site and they downloaded a 
     15   little clip of it, I wouldn't consider that piracy, 
     16   either.  I would consider that fair use, sort of very 
     17   traditional fair use.  
     18            That's my very long answer. 
     19            MS. MILLER:  Thank you.  I appreciate that.
     20            MR. HERNSTADT:  I think it goes without saying 
     21   that Mr. DiBona is not our expert on the legal 
     22   definition of piracy.
     23            MS. MILLER:  It certainly does.  It certainly 
     24   does.  I wouldn't think we would need a legal expert on 
     25   the definition of piracy.  But again, I just want to 


      1   explore Mr. DiBona's uses of these terms in his 
      2   declaration.
      3            THE WITNESS:  And while I'm certain that this 
      4   will be brought up in other venues, No. 10 is not 
      5   necessarily about -- it's meant to stress how not so 
      6   great it is and not enjoyable it is to watch videos 
      7   this way.  I mean that was one of the points of this 
      8   thing here.  
      9            I didn't want it to get lost in the 
     10   translation.
     11   BY MS. MILLER:
     12        Q.  Okay.  Now, in your view, Mr. DiBona, do you 
     13   feel that it's any less injurious to a copyright 
     14   holder's rights that bad unauthorized copies of their 
     15   copyrighted works are being distributed to the public?
     16            MR. HERNSTADT:  Objection to the form of the 
     17   question. 
     18            If you understand that, you can answer it.
     19            THE WITNESS:  I think the quality has nothing 
     20   to do with the argument, frankly.
     21   BY MS. MILLER:
     22        Q.  So the quality of the pirated copy --
     23        A.  It can be awesome; it can be terrible.  I 
     24   don't think the quality has much to do with piracy.
     25        Q.  Thank you.  That's what I was trying to 


      1   understand.
      2            Let's move on to Paragraph 11, actually 
      3   Paragraph 11 and 12, and I think we can kind of just go 
      4   through this quickly because we already talked about 
      5   this, your actual experiment using DeCSS.
      6            So you've already told me that in your 
      7   experiment, you used Air Force One, and you attempted 
      8   to decrypt the trailer file, which was the smallest 
      9   file that you were able to ascertain on this DVD.
     10            Going towards the end, the penultimate 
     11   sentence in Paragraph 11 of your declaration, you say 
     12   "The only DVD player program I had on my computer 
     13   refused to play any of the VOB files I had copied 
     14   directly off the hard drive."  
     15            What was this DVD player program that you were 
     16   employing at this point in your test?
     17        A.  I think to clarify this would make it make 
     18   sense.  Under Windows, the DVD player program that I 
     19   had was Mediamatics, which was the licensed player.     
     20            That said, on my computer, on the Linux side 
     21   of things, I had xmovie.  
     22            So I should have been more clear there.
     23        Q.  Are you say that Mediamatics --
     24        A.  Would not play.
     25        Q.  -- would not play?


      1        A.  Would not play directly, yeah, off the hard 
      2   drive.
      3        Q.  What result did you get when you tried to play 
      4   the movie off the hard drive using Mediamatics?  What 
      5   did it tell you?  Did you get an error message?  What 
      6   happened?
      7        A.  I'll be honest with you.  I don't remember.  
      8   I'd need to go back and look.  I don't think it was an 
      9   error message.  I think it just did not do that.
     10        Q.  Just didn't do anything?
     11        A.  Yeah.  It wouldn't let me go to this file. 
     12   Again, I'm not sure.  I'd have to check.
     13        Q.  But you previously testified -- again, I don't 
     14   mean to misstate your testimony.  I'm just trying to 
     15   move through it -- that when you conducted this 
     16   experiment, you actually had just installed Microsoft 
     17   Windows on your laptop?
     18        A.  Mm-hmm.
     19        Q.  At that point, how did you obtain the 
     20   Mediamatics player?
     21        A.  The Mediamatics player came with the DVD 
     22   drive. So it was just a matter of installing that after 
     23   installing Windows.
     24        Q.  Now, in performing this test, did you attempt 
     25   to, first of all, use the Mediamatics player on just 


      1   running the Air Force One movie to initially ascertain 
      2   whether or not, in fact, the player worked, period?
      3        A.  Yeah.  I had tried it on a previous session.  
      4   I mean I had shut the machine down and brought it back 
      5   up before doing this.  But yes, Mediamatics worked fine 
      6   on regular DVDs.
      7        Q.  That's what I wanted to clarify, that that 
      8   step had actually been performed in your test.  
      9            So you used the Mediamatics player, you 
     10   confirmed that it did, in fact, run Air Force One off 
     11   of the DVD disk from the DVD player.
     12        A.  Yes.
     13        Q.  Then when you attempted to copy or when you 
     14   did copy the trailer file using DeCSS onto your hard 
     15   drive, you then attempted to use the Mediamatics player 
     16   to play that unencrypted movie content off of the hard 
     17   drive, and nothing happened?
     18        A.  And nothing happened.
     19            MR. HERNSTADT:  I'm sorry, "unencrypted" or 
     20   "encrypted"?
     21             THE WITNESS:  The decrypted VOB file. 
     22   BY MS. MILLER:     
     23        Q.  That was the result of your running DeCSS?
     24        A.  Yes.
     25        Q.  Gotcha.  Thank you.  


      1            In the last sentence of Paragraph 11, you say, 
      2   "I was unable to find a program under Windows that 
      3   would play the VOB file."  
      4            There is a bit of an ambiguity in that 
      5   sentence I wanted to explore and make sure I 
      6   understand.  When you say you were unable to find a 
      7   program under Windows does, that mean you were unable 
      8   to locate one or you located one and it still wouldn't 
      9   play?
     10        A.  I did not do an exhaustive survey of all of 
     11   the DVD player programs under Windows.  I did try 
     12   another commercial program called PowerDVD to try to 
     13   play the VOB file that was decrypted using DeCSS.  I 
     14   tried to find a VOB player that would work under 
     15   Windows.  I did not find one, but again, it was a 
     16   cursory search.  It wasn't a comprehensive survey of 
     17   all the programs that could possibly do this.
     18        Q.  Okay.
     19        A.  Just from a short excursion on the net and 
     20   trying to find programs that would play VOB files under 
     21   Windows off of a hard drive, I was unable to do so.  So 
     22   there you go.
     23        Q.  But you did locate the PowerDVD player?
     24        A.  Yes.
     25        Q.  And you used that?


      1        A.  And it was unable to read the VOB file.  It 
      2   was able to play a DVD off the DVD drive.  It was 
      3   unable to play the decrypted VOB off of the hard drive.
      4        Q.  And in Paragraph 12 of your declaration is 
      5   when you describe then using the Linux utility 
      6   xmovie --
      7        A.  Mm-hmm.
      8        Q.  -- to play the VOB file that you had decrypted 
      9   using DeCSS; is that correct?
     10        A.  Yes.
     11        Q.  And you say with -- I'm sorry, let's just 
     12   quote from the second sentence from Paragraph 12: 
     13                "My experience was that with some 
     14            tweaking I was able to watch the VOB file, 
     15            but that the video quality was very poor,      
     16            showing a lot of stuttering and with a great   
     17            deal of artifacts, and the sound, while 
     18            clear enough, was not synchronized with 
     19            the picture very well."
     20            Do you see the sentence that I just read?
     21        A.  Yes, I do.
     22        Q.  Do you know whether or not the quality 
     23   problems that you experienced were related to the 
     24   xmovie player application -- 
     25            MR. HERNSTADT:  Objection to form.  


      1   BY MS. MILLER:
      2        Q.  -- or to DeCSS?
      3        A.  I think it had nothing to do with DeCSS and 
      4   everything to do with the system performance of my 
      5   laptop and xmovie's code.
      6        Q.  Do you know whether xmovie is a CSS licensed 
      7   player application?
      8        A.  Xmovie is specifically designed to play back 
      9   MPEG files, so it doesn't need a CSS license.  It's not 
     10   designed specifically for DVDs.
     11        Q.  I see.  I believe you testified earlier, 
     12   Mr. DiBona, that you had read some of the other 
     13   declarations in this case; is that correct?
     14        A.  It's been some time, but yes.
     15        Q.  Have you read any declarations in this case in 
     16   the last month concerning experiments that other 
     17   individuals had done in playing back movies that have 
     18   been decrypted using DeCSS?
     19        A.  No, I have not.
     20        Q.  You have not read any of the other 
     21   declarations?
     22        A.  Not in the last month.
     23            MR. HERNSTADT:  Do you want to specify?  
     24            MS. MILLER:  I'll get there.
     25            MR. HERNSTADT:  Okay. 


      1   BY MS. MILLER:
      2        Q.  So it's fair to say from your last answer that 
      3   you have not read any of the declarations of Robert 
      4   Schumann related to his experimentation in playing back 
      5   movies that have been decrypted using DeCSS?
      6        A.  That's right.
      7        Q.  Now, other than the experiment that you 
      8   conducted on the movie Air Force One in trying to run 
      9   or -- excuse me, in trying to play a decrypted movie 
     10   file after using the DeCSS utility, have you heard of 
     11   anyone else's experience in conducting the same sort of 
     12   experiment apart from the two people that responded to 
     13   your e-mail messages and postings about using DeCSS?
     14        A.  No.
     15        Q.  Would it surprise you to learn that other 
     16   people that had decrypted movies using DeCSS the same 
     17   way that you did were able to run 
     18   commercially-available DVD player software under 
     19   Windows and play the movies that were decrypted?
     20            MR. HERNSTADT:  Objection to the form.
     21            THE WITNESS:  Honestly it wouldn't surprise 
     22   me, because -- it just wouldn't surprise me that 
     23   somebody would have a commercial player that would just 
     24   also work for that kind of thing. 
     25   BY MS. MILLER:


      1        Q.  In Paragraph 14 of your declaration, you said: 
      2                "Given the many problems and costs         
      3            associated with using DeCSS, especially        
      4            compared to the low price of buying or renting 
      5            a DVD and the fact that new Windows and Apple  
      6            computers increasingly provide a DVD player as 
      7            standard equipment, it is my opinion that the  
      8            only real commercial value in DeCSS is as part 
      9            of the reverse engineering of an open-source   
     10            DVD player and not at all as a tool for        
     11           commercial piracy."  
     12            Is that an accurate quotation from 
     13   Paragraph 14 that I just read?
     14        A.  Yes.
     15        Q.  If you know, how was DeCSS part of the reverse 
     16   engineering efforts for an open-source DVD player?
     17        A.  How is it --
     18        Q.  How is DeCSS used as part of the reverse 
     19   engineering efforts for an open-source DVD player?
     20        A.  I see.  If DeCSS is the only way to get the 
     21   file that people can use to play DVD movies -- hmm.  
     22   That's not the right way to answer that.
     23            DeCSS is viable for an open-source DVD player 
     24   in that it's really an implementation of the -- you can 
     25   see it as sort of a roadmap on how to read the DVD 


      1   drives.  So that right there is useful in that, since 
      2   DeCSS source code is conceivably available, in that 
      3   that makes it easier to write other open-source DVD 
      4   players.  
      5            So that's in my mind how DeCSS itself is 
      6   valuable as a reverse engineering tool.  But really 
      7   DeCSS is more of a result of reverse engineering in my 
      8   mind.
      9        Q.  Than a reverse engineering tool in and of 
     10   itself.
     11        A.  Right.
     12        Q.  So you don't know, in fact, if DeCSS was used 
     13   as part of the reverse engineering of the open-source 
     14   DVD player as you stated in Paragraph 14 of your 
     15   declaration?  
     16            MR. HERNSTADT:  Objection as to form.
     17            THE WITNESS:  Well, what I say in 14 here is I 
     18   say, "It is my opinion that the only real commercial 
     19   value in DeCSS is as part of the reverse engineering of 
     20   an open-source DVD player."  
     21            That's not to say that I don't think it was 
     22   used.  You know what I'm saying?
     23            MS. MILLER:  That's what I'm trying to 
     24   understand.
     25            THE WITNESS:  What I'm saying here is the real 


      1   commercial value of DeCSS is the real commercial value 
      2   of having open-source DVD players in that having 
      3   open-source DVD players means that more DVD players can 
      4   be sold and used; therefore, leading to more DVDs being 
      5   sold and used.  So that's what I meant by that 
      6   sentence.  I know I could have written that a lot 
      7   better, but yeah.  As far as the value of DeCSS as a 
      8   tool of reverse engineering, I already stated that.  
      9            So I don't know if that answers your question, 
     10   but that's what it was meant to say.
     11   BY MS MILLER:
     12        Q.  Why don't we try it a different way.
     13        A.  Okay.
     14        Q.  I believe you mentioned in the first part of 
     15   your answer that DeCSS source code is available on the 
     16   internet.  Do you actually know whether or not the 
     17   DeCSS source code was utilized in any of the 
     18   open-source DVD player projects that you're aware of 
     19   that were under development? 
     20            MR. HERNSTADT:  Objection to form.
     21            THE WITNESS:  I have no way of knowing for 
     22   sure.  It could have happened.  I don't know.
     23   BY MS. MILLER:          
     24        Q.  So it's an assumption that you made that 
     25   looking at the DeCSS source code would allow someone 


      1   that's working on a Linux DVD player development 
      2   project to understand more about how CSS works?
      3        A.  More a Linux development project working on a 
      4   DVD player seeing this code, it would certainly help 
      5   them in writing their own.  So yes.  That's not saying 
      6   it happened.
      7        Q.  But you don't know one way or the other 
      8   whether it happened or not? 
      9        A.  Yes.  I'm not part of those teams, so... 
     10            MR. HERNSTADT:  Can we stop for two minutes, 
     11   please, go off the record?
     12            MS. MILLER:  You just want to make a phone 
     13   call? 
     14            MR. HERNSTADT:  Yeah.
     15            THE VIDEOGRAPHER:  Off the record, the time is 
     16   12:50 p.m.
     17            (Discussion had off the record.)
     18            (Break taken from 12:50 to 1:10 p.m.)
     19            (Due to a computer malfunction, the transcript 
     20            continues on the following page.)
     21   /////
     22   /////
     23   /////
     24   /////
     25   /////


      1            THE VIDEOGRAPHER:  On the record.  The time 
      2   is 1:10 p.m.  Please continue.
      3   BY MS. MILLER:
      4        Q.  In Paragraph 15 of your declaration, 
      5   Mr. DiBona, you draw the conclusion that "DeCSS seems 
      6   to me to have been created as an exercise in cryptology 
      7   and the result of intellectual curiosity and 
      8   experimentation by a handful of extremely sophisticated 
      9   computer experts."  
     10            What was the basis for that statement in your 
     11   declaration?
     12        A.  The reason I said that was because, since the 
     13   result of the DeCSS couldn't be played in a way that I 
     14   considered enjoyable, that the reasoning behind DeCSS 
     15   would be more as, hey, look at this great program that 
     16   we've written.  It's more -- in my mind, DeCSS is more 
     17   about we've actually beaten this problem.  It's sort of 
     18   like they had an eye towards beating the problem, and 
     19   not towards -- you can't play these files very well.  
     20   They don't look good.  They look terrible.  So you 
     21   can't enjoy the output.  So to them, the journey was 
     22   the joy.  And so that's where that statement comes 
     23   from.
     24        Q.  But Mr. DiBona, you also just testified that 
     25   the enjoyability of the files, at least in the 


      1   experiment you did, seemed more to be related to the 
      2   player that was used; is that correct?
      3        A.  Sure.  But that doesn't necessarily mean that 
      4   the people who wrote DeCSS were ignorant of that 
      5   situation.  It's not out of hand for me to think that 
      6   they went about this as an intellectual exercise 
      7   specifically for that intellectual exercise and not 
      8   specifically for the DVD player.  
      9            They wanted to make a name for themselves.  
     10   They wanted to do this because nobody had done it 
     11   before outside of the licensed players where it was 
     12   easy to do, right?  In my mind, this was more of a 
     13   result of their intellectual curiosity rather than they 
     14   wanted to watch a movie.
     15        Q.  But you've never spoken to any of the creators 
     16   of the DeCSS?
     17        A.  No.  This was an assumption based on what I 
     18   know about people in this community.
     19        Q.  Is it fair to say, then, that in Paragraph 15, 
     20   the first sentence is basically just an assumption or 
     21   your part?
     22        A.  Sure.  It's what I'm here for.
     23        Q.  Now going on in Paragraph 15, you say "Once 
     24   open-source DVD players have been established, DeCSS' 
     25   only value will be as an interesting utility to be 


      1   examined by academics, scholars, engineers, 
      2   programmers, cryptologists, and the like."
      3            Now, in the examinations by these various 
      4   groups that you referred to, are you assuming that this 
      5   examination will be done of the DeCSS source code?  
      6            MR. HERNSTADT:  Objection to form. 
      7   BY MS. MILLER:
      8        Q.  What did you mean by "DeCSS' only value will 
      9   be as an interesting utility to be examined"?  
     10            MR. HERNSTADT:  Objection.  Form.  It says 
     11   what it says.
     12            You can answer.
     13            THE WITNESS:  I'm saying that basically DeCSS' 
     14   value as a utility will be mitigated by the fact that 
     15   once we have real open-source players, we won't need 
     16   DeCSS.  DeCSS is an interim step, in my mind, until we 
     17   have fully-featured players under Linux.
     18   BY MS. MILLER:
     19        Q.  Is this academic value that you've referred to 
     20   in Paragraph 15 of your declaration, though, is that 
     21   satisfied by the DeCSS utility in its executable form 
     22   or in its source code form, is what I'm trying to 
     23   understand.          
     24            MR. HERNSTADT:  Objection to form.
     25            THE WITNESS:  In my mind, if I wanted to learn 


      1   something from the program, I could do it in either 
      2   form.  I mean whether I go through the executable, you 
      3   know, fine-tooth hex editor or if I were to look at its 
      4   source code, I would learn from either one of them.  
      5            So yes.  One or the other.  Wouldn't matter to 
      6   me.  I could learn from either of them. 
      7   BY MS. MILLER:
      8        Q.  I just have a couple of questions about your 
      9   continuing experimentation with the Mediamatics player 
     10   that you describe in Paragraphs 16 through 19 --
     11        A.  Okay.
     12        Q.  -- of your declaration.  Again, I'm just 
     13   trying to move through this.  I don't mean to 
     14   mischaracterize what's in your declaration, because it 
     15   says what it says.  
     16            But what I want to understand is you talk 
     17   about using the Mediamatics DVD playing program and 
     18   running a movie under the Windows operating system, and 
     19   then you describe in Paragraph 17 the fact that one can 
     20   copy data off of the DVD disk and use the Mediamatics 
     21   program as a "DeCSS equivalent."   
     22            Do you see that statement in Paragraph 17?
     23        A.  Yes, I do.
     24        Q.  Now in Paragraph 18, you describe I assume 
     25   your use of the same movie, Air Force One, because you 


      1   make a reference here to Harrison Ford.
      2        A.  Yes.
      3        Q.  Is that correct?  So you're using Air Force 
      4   One again to perform this experiment.  You say in 
      5   Paragraph 18, "Using Windows' file manager, I 
      6   copied" -- "I then copied," excuse me, "two of the VOB 
      7   files on the Disk to the hard drive.  Prior to my 
      8   playing the movie (and the concomitant unlocking of the 
      9   DVD Drive by the mediamatics player) I was unable to 
     10   copy the same VOB files."
     11            Now, were the VOB files that you copied in 
     12   this experiment on the hard drive of your computer, did 
     13   they remain encrypted or were they unencrypted?
     14        A.  They remained encrypted.
     15        Q.  Did you perform any additional experiments on 
     16   these encrypted files?  In other words, just to state 
     17   it simply, did you try to play the movie files that 
     18   were encrypted on the hard drive that you had copied --
     19        A.  Yes, I did.
     20        Q.  -- in this test?  
     21            Using which player?
     22        A.  I tried the Mediamatics player, the PowerDVD 
     23   player and the xmovie player.  None of them were able 
     24   to play the files.
     25        Q.  So Mediamatics player, PowerDVD and xmovie 


      1   were the three that you tried?
      2        A.  Yes.
      3        Q.  And none of these three players were able to 
      4   play the encrypted movie files from your hard drive; is 
      5   that correct?
      6        A.  That's correct.
      7        Q.  Did you get any specific error messages from 
      8   any of these three players?
      9        A.  I didn't write any of them down.  With 
     10   PowerDVD and Mediamatics, I was unable to even load 
     11   them.  
     12            With xmovie, it gave me an error message.  It 
     13   said unable to find some volume thing.  Again, I'd have 
     14   to do it again.  It sounded like a file error.  Because 
     15   it was encrypted, it couldn't read it, so...
     16        Q.  Okay.  But as you've previously testified, 
     17   when you ran DeCSS on the movie trailer file for Air 
     18   Force One, you actually were able to create an 
     19   unencrypted movie file on your hard drive; is that 
     20   correct?
     21        A.  That's correct.
     22        Q.  So in that regard, is this process that you 
     23   performed using the Mediamatics player truly a DeCSS 
     24   equivalent?
     25        A.  In my mind, it is an equivalent when it comes 


      1   to copying the data off of it.  It is obviously not 
      2   when it comes to decrypting it.  So I should have been 
      3   more clear there.
      4        Q.  That's what I'm trying to understand.  Thank 
      5   you.
      6        A.  Yeah.  No problem.
      7        Q.  In Paragraph 20 of your declaration, you say, 
      8   "It should be clear" -- strike that.  "It should be 
      9   clear that the DeCSS program by itself is not necessary 
     10   to get the data files off the DVD.  The design of the 
     11   protocol makes DeCSS redundant for that purpose."
     12            What protocol were you referring to in that 
     13   sentence that I just read to you, Mr. DiBona?
     14        A.  The transactional protocol that the Contents 
     15   Scrambling System uses to lock the DVD drive. 
     16        Q.  I'm sorry, are you just referring to the fact 
     17   that the transactional protocol of CSS unlocks the DVD 
     18   drive in the same way that DeCSS also allows you to 
     19   unlock the DVD drive?
     20        A.  More appropriately stated, a licensed player 
     21   playing a DVD has to go through the same processes as 
     22   DeCSS --
     23        Q.  To unlock the DVD drive?
     24        A.  -- to unlock the drive, yes.
     25        Q.  Then the last sentence of your declaration in 


      1   Paragraph 20, you state that "The design of the DVD 
      2   copy protection is flawed in such a way as to 
      3   invalidate any assertion that CSS is a copy protection 
      4   mechanism, since I can use the tools designed for it 
      5   and licensed by the MPAA/DVD-CCA to copy VOB files."
      6        A.  Mm-hmm.
      7        Q.  Now, you're obviously technically proficient 
      8   in computer systems, correct?
      9        A.  I'd like to think so.
     10        Q.  Would you think that someone that's not 
     11   technically proficient would be able to perform the 
     12   same tests that you did in copying VOB files to their 
     13   hard drives from in the mechanisms in the CSS licensed 
     14   player?
     15        A.  In an encrypted form?
     16        Q.  Yes.
     17        A.  After knowing it was possible, yes.  Before 
     18   knowing it was possible, it's likely if they wanted to 
     19   copy these files off, they would have eventually found 
     20   this way, so...
     21        Q.  And how would they have eventually found this 
     22   way?
     23        A.  Same way that I did.  
     24            My goal when I was doing this was to say, 
     25   okay, where are the holes in this process that would 


      1   allow for these kinds of mechanisms, these sorts of 
      2   things to occur, copying the files off the disk without 
      3   a licensed player or with a licensed player in a way 
      4   that's not -- say, you know, given the informater 
      5   (phonetic) of the MPAA or DVD-CCA.  
      6            And so if you think along those lines, this 
      7   sort of think popped up pretty quickly.  I didn't have 
      8   to think for weeks to figure this out.  It really took 
      9   minutes.  I said, well, if I want to do it, it's likely 
     10   that in the process of watching the movie it unlocks 
     11   the drive; therefore, I should be able to copy the 
     12   files off of the drive after it's been unlocked, and 
     13   that's what led to this.  It was really that simple.
     14        Q.  Okay.  But then in Paragraph 21, you state in 
     15   the last sentence again, "It may even be possible to 
     16   make a CSS-equipped DVD player run the encrypted VOB 
     17   files directly off a hard drive without the benefit of 
     18   any assisting software."  

     19            MR. HERNSTADT:  Objection.   
     20            Go ahead.  Are you done?  
     21            MS. MILLER:  I'm done reading.  Do you have 
     22   any objection to what I've just read?
     23            MR. HERNSTADT:  No.  I'll wait.
     24   BY MS. MILLER:
     25        Q.  Is that an accurate reading of the last 


      1   sentence of Paragraph 21?
      2        A.  That is exactly what I wrote, yes.
      3            MR. HERNSTADT:  Objection to form.
      4            THE WITNESS:  Yes, that's accurate. 
      5   BY MS. MILLER:
      6        Q.  What is the basis for that statement that I've 
      7   just read to you, Mr. DiBona?
      8        A.  I am basically assuming that there exists a 
      9   licensed player where they did not make the check to 
     10   see if they're reading it from the hard drive or if 
     11   they're reading it from the DVD ROM player.  
     12            I'm assuming that somewhere in the 40-plus 
     13   players out there that a programmer was lazy and said 
     14   to himself, "I don't need to do this check."  And I 
     15   think that's extremely likely, because I've seen that 
     16   happen in other situations where people are supposed to 
     17   follow a specification and they just do a shortcut to 
     18   get the job done faster.
     19        Q.  But you don't know that?
     20        A.  No.  I would have to do a comprehensive survey 
     21   of all the files before I'd find that.  But I'm saying 
     22   it's likely in this sentence. 
     23        Q.  But you have not done that comprehensive --    
     24        A.  No, I have not done -- 
     25        Q.  -- survey of the 40-or-so-plus licensed CSS 


      1   players out there; is that correct?
      2        A.  That is correct. 
      3            MS. MILLER:  Okay.  Just give me one second.  
      4   Can we go off the record for two minutes, and I can 
      5   check my notes because I think I'm about done.
      6            THE VIDEOGRAPHER:  Off the record, the time is 
      7   1:25 p.m.
      8             (Break taken from 1:25 to 1:26 p.m.)
      9            THE VIDEOGRAPHER:  On the record, the time is 
     10   1:26 p.m.  Please continue.
     11   BY MS. MILLER:
     12        Q.  Mr. DiBona, do you have a web site, a personal 
     13   web site?
     14        A.  Yes, I do.
     15        Q.  What is the URL for that web site?
     16        A.  You could go to it by  It's 
     17   spelled the same way as my last name.
     18        Q.  Have you posted DeCSS to your web site in any 
     19   form?
     20        A.  I believe I have a hyperlink going from that 
     21   to an external site that has it for people who want to 
     22   see it.  
     23            I do have a joke version of the program that 
     24   is --
     25        Q.  I'm sorry, a what version?


      1        A.  I have a joke version of DeCSS on my web site 
      2   that removes cascading tile sheets from web pages.  Me 
      3   and some friends came up with it.  It was just a funny 
      4   thing to do.  But it has nothing to do with the actual 
      5   program we're talking about here.             
      6            So I've got a link to the actual program, and 
      7   I've got a copy of the joke program.
      8        Q.  What's the file name for that joke program?
      9        A.  "DeCSS."
     10        Q.  It's actually called DeCSS, as well?
     11        A.  Yes.
     12        Q.  Now, in your hyperlink or your web site going 
     13   to the DeCSS program, do you know what site you're 
     14   linking to?
     15        A.  I think I'm linking to OpenDVD site, but I'd 
     16   have to check.  It would be fairly trivial for someone 
     17   to find out.
     18        Q.  Do you know if -- strike that.
     19            Have you ever visited the web site?
     20        A.  Often.
     21        Q.  When was the last time you visited the 
     22 web site?
     23        A.  Probably about two weeks ago or a week ago. 
     24        Q.  And on the web site, are you aware 
     25   that there is a page of links or several pages of links 


      1   to other web sites that are posting the DeCSS utility?
      2        A.  Yes.
      3        Q.  Do you know whether or not your site is one of 
      4   those sites that's being linked to from the 
      5   web site?
      6        A.  I think it would be unlikely, since I'm not 
      7   actually hosting the software on the site itself, but I 
      8   guess I wouldn't be surprised.
      9        Q.  Did you ever provide with the URL of 
     10   your web site for the purposes of linking to your web 
     11   site?
     12        A.  No. 
     13            MS. MILLER:  Okay.  Mr. DiBona, that's all I 
     14   have right now.  I'd like to thank you for your time.
     15            I would like to leave the deposition open, 
     16   though, subject to receiving the e-mails and the other 
     17   documents that we've talked about.  
     18             But that's just a housekeeping matter between 
     19   myself and Mr. Hernstadt.
     20            But again, I thank you for your time.  I don't 
     21   know whether Mr. Hernstadt has any questions. 
     22            MR. HERNSTADT:  I can certainly get the 
     23   questions done in less than an hour, I'd say.  No.  I 
     24   don't have any questions for you.  And I think we've 
     25   had this exchange a dozen times, but we consider it 


      1   closed, but...
      2            MS. MILLER:  I'm sure you do, and I consider 
      3   it open. 
      4            MR. HERNSTADT:  Thank you.
      5            THE WITNESS:  Thank you.
      6            THE VIDEOGRAPHER:  This concludes today's 
      7   deposition of Chris DiBona on July 8, 2000.  The total 
      8   number of videotapes used is two.  The original 
      9   videotapes will be retained by McMahon & Associates.  
     10   Off the record, the time is 1:30 p.m. 
     12             (Time noted 1:30 p.m.)
     15                        ______________________________
     16                                CHRIS J. DiBONA
     21   Subscribed and sworn to before me
     22   this__________ day of__________________, 2000
     23   _____________________________________________
     24   Notary Public in and for the State of
     25   California, County of Santa Clara