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

Barbara Simons Deposition, in MPAA v. 2600

CA; July 8, 2000


         7                             Plaintiffs,   
              vs.                                  NO. 00 Civ. 0277 (LAK) 
         8    SHAWN C. REIMERDES, ERIC CORLEY a/k/a 
         9                             Defendants.
        10    _______________________________________/
              DATE:          July 8, 2000
              DAY:           Saturday
              TIME:          2:15 p.m.
              PLACE:         Weil, Gotshal & Manges LLP
        17                   2882 Sand Hill Road, Second Floor
                             Menlo Park, California
              PURSUANT TO:   Subpoena
              REPORTED:      KAREN L. BUCHANAN
        20                   CSR No. 10772
              1101 South Winchester Blvd., Suite D-138
        24    San Jose, California 95128
              (408) 261-9795


         1    APPEARANCES: 
         2    For the Plaintiffs:      PROSKAUER ROSE LLP
                                       BY:  WILLIAM HART 
         3                             (by telephone) and 
                                       CARLA MILLER
         4                             ATTORNEYS AT LAW
                                       1585 Broadway
         5                             New York, NY  10036
                                       (212) 969-3713
              For the Defendants:      FRANKFURT GARBUS KURNIT 
         7                             KLEIN & SELZ
                                       BY:  EDWARD HERNSTADT
         8                             ATTORNEY AT LAW
                                       488 Madison Avenue
         9                             New York, NY  10022 
                                       (212) 826-5582
              The Videographer:        McMAHON & ASSOCIATES
        11                             BY:  LOU MEADOWS
                                       One Almaden Boulevard
        12                             Suite 829
                                       San Jose, CA 95113
        13                             (408) 298-6686


         2                                                 Page
         3    By Mr. Hart                                   5, 92
         4    By Ms. Miller                                  75 
         5    By Mr. Hernstadt                               84        
        11                       INDEX OF EXHIBITS
        12     Plaintiffs'                                 Page
        13    1    Subpoena in a Civil Case                  4
        14    2    Declaration of Barbara Simons in          4
                   Opposition to Plaintiffs' Motion to
        15         Modify the Preliminary Injunction 
                   and in Support of Defendants' 
        16         Cross-Motion to Vacate the
                   Preliminary Injunction
              3    Two-page article entitled "To            42
        18         DVD or Not to DVD" by Barbara Simons


         1                            --oOo--
         2             (Plaintiffs' Exhibit 1 and 2 were marked for 
         3    identification.) 
         4             THE VIDEOGRAPHER:  We're going on the record.  
         5    The time on the screen is 2:22 p.m.  Today's date is 
         6    Saturday, July 8th, 2000.  We are located at the law 
         7    offices of Weil, Gotshal & Manges, 2882 Sand Hill Road, 
         8    Menlo Park, California.
         9             This is tape 1 of the videotaped deposition of 
        10    Barbara Simons.  The case name is Universal City Studios 
        11    versus Corley, et al., venued in the U.S. District Court 
        12    for the Southern District of New York. The case number 
        13    is 00277 LAK.  
        14             My name is Lou Meadows, legal video specialist 
        15    and notary for McMahon & Associates, One Almaden 
        16    Boulevard, Suite 829, San Jose, California 95113. 
        17             The court reporting firm is Comp-U-Scripts.  
        18    The court reporter is Karen Buchanan. 
        19             Counsel, please state your name, your office 
        20    and whom you represent in this action.
        21             MR. HERNSTADT:  Edward Hernstadt, Frankfurt 
        22    Garbus Kurnit Klein & Selz, for the defendants in this 
        23    case.
        24             MR. HART:  Carla Miller, Proskauer Rose, for 
        25    plaintiffs in the case.


         1             MR. HART:  Is it my turn?  
         2             THE VIDEOGRAPHER:  Yes.
         3             MR. HART:  Bill Hart, Proskauer Rose, for the 
         4    plaintiffs.
         5             THE VIDEOGRAPHER:  Are there any stipulations 
         6    you wish to put on the record at this time?
         7             MR. HERNSTADT:  Bill, any stipulations? 
         8             THE VIDEOGRAPHER:  Please swear in the 
         9    witness.
        10                    BARBARA SIMONS, Ph.D.,
        11              being first duly sworn by the
        12              Certified Shorthand Reporter to tell
        13              the truth, the whole truth, and nothing
        14              but the truth, testified as follows:
        15            EXAMINATION BY MR. HART (By Telephone):
        16         Q.  Good afternoon, Dr. Simons. 
        17         A.  Hello.
        18         Q.  May I address you as "Doctor" throughout the 
        19    course of this deposition?
        20         A.  You're welcome to call me Barbara if you'd like 
        21    to.
        22         Q.  Thank you.  Have you been deposed before?
        23         A.  Never.
        24         Q.  How many times?
        25         A.  Zero.


         1         Q.  Zero.  Never, you said?
         2         A.  Yes.  
         3         Q.  I'm going to ask the reporter to show you 
         4    Exhibits 1 and 2 that we've just marked.
         5         A.  They're right next to me here. 
         6         Q.  Okay.  And turning first to Exhibit 1, the 
         7    Notice of Deposition and Subpoena --
         8         A.  Right.
         9         Q.  -- my question is have you ever seen these 
        10    documents before?
        11         A.  I believe a copy of this was delivered to me at 
        12    my home.  Is that right?
        13         Q.  Did you at any time pull together or cause 
        14    anyone else to collect any documents in response to this 
        15    Exhibit 1?
        16             MR. HERNSTADT:  Bill, let me just note for the 
        17    record that Exhibit 1 is a subpoena with an attachment, 
        18    a Schedule A.
        19             MR. HART:  Correct.
        20             MR. HERNSTADT:  It's not a Notice of 
        21    Deposition.
        22             But go ahead, Barbara, you can answer the 
        23    question.
        24             THE WITNESS:  What was the question again, 
        25    please?  


         1    BY MR. HART:
         2         Q.  Did you at any time collect or cause anyone 
         3    else to collect any documents and things in response to 
         4    this Exhibit 1?
         5         A.  Yes.  
         6         Q.  Yes?
         7         A.  Yes.  
         8         Q.  And do you have those documents here with you 
         9    today?
        10         A.  I gave them -- I gave them to you, right?
        11             MR. HERNSTADT:  Yeah.  Barbara turned them over 
        12    to me 10 minutes ago.
        13             MR. HART:  And are you going to turn those over 
        14    to us, Mr. Hernstadt?  
        15             MR. HERNSTADT:  What I'm going to do is review 
        16    them to see if there is any documents that have to be 
        17    withheld based on any privilege and then turn them over.
        18             MR. HART:  What kind of privilege are you 
        19    talking about, Mr. Hernstadt?
        20             MR. HERNSTADT:  We represent Dr. Simons for the 
        21    purposes of today's deposition.  If there is any e-mail 
        22    message about our representing her, that would be 
        23    attorney-client privileged.  I don't think there are, 
        24    but I have to review.
        25             MR. HART:  I see.


         1             MR. HERNSTADT:  And the second basis would be 
         2    Dr. Simons is not only an expert witness for us but we 
         3    asked her apart from the expert's testimony that we've 
         4    asked her to present in this case, she's acted as a 
         5    consultant, as well.  And those are two distinct 
         6    things.  In other words, she's not testifying as to the 
         7    areas on which she's consulted with us.
         8             If there is any attorney work product 
         9    materials, then I would have to also designate those as 
        10    privileged.
        11             Again, I don't know that there are.  I haven't 
        12    seen these.  I just got them.
        13             MR. HART:  Just so I can be clear about your 
        14    position, Mr. Hernstadt, for the record, will you be 
        15    turning over to us documents which may have been 
        16    involved in the consulting capacity but also have a 
        17    bearing on Dr. Simons' testimony?  
        18             MR. HERNSTADT:  Yes, I mean, properly 
        19    redacted.  But if there is a mix of the two, I'm not 
        20    going to withhold the entire document.  I'll only  
        21    redact that portion that is work product, to the extent 
        22    that exists.  Again, I don't know.  Not having reviewed 
        23    the e-mails, I don't know what's in them.  I have a 
        24    vague recollection, but I don't know exactly.
        25             MR. HART:  And with due apologies to 


         1    Dr. Simons, that really wasn't exactly my question.  It 
         2    was if you have, for instance, some document that has 
         3    subject matter in it that is both directed to the 
         4    consulting subject and the same words are also directed 
         5    to an area in which she is or may testify, are you going 
         6    to withhold that?  
         7             MR. HERNSTADT:  Bill, until I take a look at 
         8    it, I can't tell you. 
         9             MR. HART:  When do you plan to look at this and 
        10    turn it over to us?
        11             MR. HERNSTADT:  I plan to look over it tomorrow 
        12    on my way back.
        13             MR. HART:  So in other words, none of the 
        14    documents will be available for this deposition.
        15             MR. HERNSTADT:  What they are are e-mails.
        16             MR. HART:  None of the documents will be 
        17    available for this deposition, right?
        18             MR. HERNSTADT:  The documents we're talking 
        19    about are e-mails. 
        20             MR. HAT:  None of these documents will be 
        21    available for this deposition, right?
        22             MR. HERNSTADT:  Are you done?
        23             MR. HART:  I'd like an answer to the question.
        24             MR. HERNSTADT:  What I'd like to do is put my 
        25    answer on the record, too.  What you keep doing is 


         1    interrupting me in the middle of my answer and asking 
         2    the same question over again.  I understand you're 
         3    indicating by doing that that you don't like my answer.  
         4    However, I am still going to put my answer on the 
         5    record.  So if you're done with the question, I would 
         6    like to do that.
         7             MR. HART:  I am done with the question.
         8             MR. HERNSTADT:  The answer to the question is 
         9    that these, quote, documents as you refer to them are a 
        10    series of e-mails, okay.  And these e-mails are not 
        11    going to be available to you, because you're in 
        12    New York, or to Ms. Miller, who is here, until after 
        13    I've had an opportunity to review them.
        14             MR. HART:  And you're not going to turn them 
        15    over to us while we're taking this deposition so that we 
        16    might be able to use them during the course of the 
        17    deposition, right?
        18             MR. HERNSTADT:  Given, Bill, that I can't 
        19    review them and defend a deposition at the same time, 
        20    the answer to that question is yes.
        21             MR. HART:  Thank you, Mr. Hernstadt.
        22    BY MR. HART:
        23         Q.   Okay, Barbara, I'm sorry for the delay.  Let 
        24    me try and get to the substance --
        25         A.   May I call you Bill?


         1         Q.  Sure.
         2         A.  All right.
         3         Q.  Can you give me in very brief form what areas 
         4    of expertise or specialized knowledge you bring to bear 
         5    in testifying in connection with this case?
         6         A.  Well, I have a Ph.D. in computer science which 
         7    I got from U.C. Berkeley almost 20 years ago.  I've been 
         8    working in the field for many, many years as a 
         9    researcher.
        10             And during the past couple of years, I've been 
        11    president of ACM, which is an 80,000-member educational 
        12    and scientific society of computer professionals.  In 
        13    that capacity, I've had the opportunity to get a broad 
        14    view of a lot of things that are going on in the field.
        15         Q.  Going on in which field?
        16         A.  Computing.
        17         Q.  Computing generally?
        18         A.  Well, areas that pertain to computing.  So for 
        19    example, technology policy is a broad area.  A lot of it 
        20    uses computers or computing in some capacity, and that's 
        21    the aspect that I am most interested in.   
        22         Q.  I'm sorry, can you -- 
        23         A.  Am I not speaking loudly enough?
        24         Q.  If you could keep your voice up, I'd really 
        25    appreciate it. 


         1         A.  Sorry.
         2         Q.  That's okay.  Did you participate in any way in 
         3    the legislative process that led to what we now know as 
         4    the Digital Millennium Copyright Act?
         5         A.  Can you please tell me what you mean by 
         6    "participate"?
         7         Q.  In any way, whether you lobbied, advocated, 
         8    submitted written views, testified, or in any other way 
         9    were involved directly or indirectly in that legislative 
        10    process. 
        11         A.  Well, I don't lobby, and ACM doesn't lobby.  
        12    We're not a lobbying organization.  We did submit a 
        13    couple of letters in which we expressed -- ACM -- my 
        14    recollection is we submitted at least one letter, and 
        15    I'd have to check on the web site to say if there are 
        16    more.  This is all on our web site, by the way.  So it's 
        17    all public -- at least one letter which I believe I 
        18    included -- do you have -- we have a copy of that, 
        19    right, somewhere?  
        20             MR. HERNSTADT:  Probably.
        21             THE WITNESS:  I think I gave the URL for that 
        22    in my affidavit.  So I referenced that in the affidavit, 
        23    and I actually printed it out so we can give a copy of 
        24    it here.
        25             MR. HART:  Okay.


         1    BY MR. HART:
         2         Q.  Are we talking about Exhibit B to your 
         3    affidavit?
         4         A.  I'm not sure.
         5         Q.  Why don't we take a look.
         6         A.  You mean Exhibit B is -- is this what he's 
         7    referring to?
         8             MR. HERNSTADT:  Yes.  That's what she's 
         9    referring to.
        10             THE WITNESS:  Sorry about that.
        11    BY MR. HART:
        12         Q.  That's fine.
        13             THE WITNESS:  Exhibit B is -- 
        14             MR. HERNSTADT:  Letter to Orrin Hatch.
        15             THE WITNESS:  That one, the letter to Hatch, 
        16    is from presidents of eight societies -- I'm sorry, 
        17    yes.  That's from the presidents of eight scientific 
        18    societies.
        19             I believe the other letter, the one -- the ACM 
        20    letter may not -- there is only one letter here, right?
        21             MR. HERNSTADT:  Bill, I can actually turn this 
        22    over to you right now.  What Dr. Simons is talking about 
        23    is a letter dated February 17th that's not part of the 
        24    DMCA legislation per se, but it was a letter to David 
        25    Carson of the Copyright Office with respect to the 


         1    rule-making procedures on 1201(a)1. 
         2             MR. HART:  Is this the February 17th, 2000 
         3    letter?
         4             MR. HERNSTADT:  That's right.
         5    BY MR. HART:
         6         Q.  Is that the one that's attached as Exhibit A to 
         7    your declaration?
         8         A.  Is that Exhibit A?  All right.  Looks like it 
         9    is.
        10             MR. HERNSTADT:  So then you have both of those 
        11    letters.
        12             THE WITNESS:  Yes.
        13    BY MR. HART:
        14         Q.  So if we could go back to where we were.
        15             Again, part of this exercise is simply to make 
        16    a clear record.  To the extent I seem tedious, I 
        17    apologize in advance.
        18             There are three exhibits to your declaration.
        19         A.  Mm-hmm.
        20         Q.  One is a February 17, 2000 letter to the 
        21    Copyright Office --
        22         A.  Right.
        23         Q.  -- Exhibit A.
        24             Exhibit B is a September 14, 1998 letter on 
        25    behalf of what appears to be quite a number of acronyms, 


         1    including the ACM --
         2         A.  Okay.
         3         Q.  -- addressed to Senator Hatch.  That's 
         4    Exhibit B.
         5             And then Exhibit C is your curriculum vitae.
         6         A.  Right.  Actually, if you look at Exhibit B, on 
         7    the second page where it's signed, those societies are 
         8    all listed by their full names.
         9         Q.  Gotcha.  My question is, apart from this 
        10    Exhibit B letter, were there any other letters that you 
        11    submitted either on behalf of the ACM or on behalf of 
        12    anyone else in connection with the legislative process 
        13    that led to the DMCA?
        14             MR. HERNSTADT:  Objection to form.
        15             Go ahead.  You can answer.
        16             THE WITNESS:  Oh, okay.  Quite honestly, I 
        17    don't recall.  If I had my computer with me, I could 
        18    check our web site and I could get that information for 
        19    you.  It's all public.  I just don't remember.
        20    BY MR. HART:
        21         Q.   But sitting here today, you don't recall any 
        22    more than --
        23         A.  I don't remember.  But there might be, and it 
        24    would be on our web site.  You can verify that.  We post 
        25    that on our web site.   


         1         Q.  Were all of your communications that were 
         2    submitted to Congress or to legislative representatives 
         3    concerning the DMCA done on behalf of the ACM?
         4             MR. HERNSTADT:  Objection to form. 
         5             You can answer if you understand the question.
         6             THE WITNESS:  Well, part of the issue is that 
         7    ACM has a technology policy committee called USACM which 
         8    I created and chaired until I became president, and some 
         9    of our activities relating to policy were done through 
        10    USACM as opposed to ACM.
        11    BY MR. HART:
        12         Q.  Gotcha.  But apart from that separate 
        13    suborganization, if you will, for the ACM, you did not 
        14    submit, use or testimony on behalf of any other 
        15    organizations or people, did you?
        16         A.  Oh, good heavens, no. 
        17         Q.  Okay.  
        18         A.  And I didn't testify, by the way. 
        19         Q.  In terms of giving live testimony?
        20         A.  Right.     
        21         Q.  Uh-huh.  Now, what was the general gist, if you 
        22    can tell me, of the ACM's position with respect to the 
        23    legislative proposals at the time the ACM expressed its 
        24    views to Congress?
        25             MR. HERNSTADT:  Bill, let me just point out 


         1    that this is not an area of expertise or an area for 
         2    which we're going to be asking or on which we're going 
         3    to ask Dr. Simons to testify.
         4             That said, we have a short period of time.  If 
         5    you want to use it on this, it's certainly your 
         6    prerogative.
         7             You can answer the question.
         8             MR. HART:  Thank you.
         9             THE WITNESS:  We were concerned about some of 
        10    the implications of the legislation on technology and on 
        11    the ability to do research and development and even to 
        12    use products in areas such as, for example, computer 
        13    security and encryption.
        14    BY MR. HART:
        15         Q.  Mm-hmm.  Anything else?
        16         A.  We were also concerned about the efforts to 
        17    prohibit reverse engineering.
        18         Q.  Now, after you made the ACM's views known to 
        19    Congress in connection with the legislative process, are 
        20    you aware of any changes that were made in the 
        21    legislative proposals, whether or not they were causally 
        22    related to the ACM's comments?
        23         A.  I am aware of one change, which I don't know if 
        24    we had any impact on or not, and that is that there 
        25    was -- I believe there was a carve-out put into the -- 


         1    what became the DMCA to allow computer security R&D in 
         2    certain specified instances.
         3         Q.  Okay.  Are you also aware whether there exists 
         4    a reverse engineering exemption in the DMCA as enacted?
         5         A.  Yes.  Reverse engineering, that was in fact -- 
         6    I believe that that's -- the security carve-out was 
         7    related to reverse engineering, I believe.
         8             I know that the reverse engineering exemption, 
         9    that there are certain exemptions for reverse 
        10    engineering, such as, for example, compatibility.  I 
        11    believe that was in the legislation before we expressed 
        12    our concerns about computer security.
        13         Q.  Just briefly, can you tell me whether you're 
        14    satisfied in your role on behalf the ACM with the 
        15    circumvention provisions as enacted in the DMCA?  
        16              MR. HERNSTADT:  Objection to the form of the 
        17    question.
        18             If you understand that question, you can 
        19    answer, Dr. Simons.
        20             THE WITNESS:  I guess I'm not quite sure what 
        21    you mean by my role.  Are you talking about as ACM 
        22    president?  Or I don't understand.
        23    BY MR. HART:
        24         Q.  Well, that's actually the easy part of the 
        25    question.  I mean I'm assuming you submitted these 


         1    comments not in your own right but on behalf of the 
         2    organization of which you're president.
         3         A.  Let me see.
         4         Q.  I'm sorry, what's happening?
         5         A.  I'm just looking at the letters.
         6             Yes.
         7         Q.  And my question is, are you as the president of 
         8    the ACM satisfied with the DMCA circumvention provisions 
         9    as enacted?  
        10              MR. HERNSTADT:  Objection to the form of the 
        11    question.
        12             You can answer it.
        13             THE WITNESS:  Well, let me just say that I 
        14    personally am not satisfied.
        15    BY MR. HART:
        16         Q.  You personally are not?
        17         A.  Right.
        18         Q.  And what about you, Barbara Simons, acting as 
        19    the president of the ACM?
        20         A.  May I just make one correction?  I'm no longer 
        21    president.  My presidency ended at the end of June.  So 
        22    I just wanted to be clear on that.  I'm past president 
        23    now.
        24         Q.  Well, up until June of the year 2000 -- 
        25         A.  I just don't want this to be --


         1         Q.  -- when you were still president of the ACM.
         2         A.  A lot of people in the ACM, myself included, 
         3    people who would have following this issue, have been 
         4    very concerned about the Digital Millennium Copyright 
         5    Act.   
         6         Q.  And you said that you personally also have 
         7    concerns about the DMCA circumvention provisions as 
         8    enacted?
         9         A.  Yes.  
        10         Q.  I'm sorry?
        11         A.  Yes.  
        12         Q.  Okay.  And what are those concerns?
        13         A.  I think -- first of all, I think the whole 
        14    approach of the legislation is wrong.  Rather than 
        15    penalizing technologies and technological devices, I 
        16    think what should have been done was to go after 
        17    behavior and, in fact, what I was hoping would pass was 
        18    the Candle-Boucher Bill.
        19             I think it's a mistake to attempt to criminalize 
        20    technologies, and in particular it's a mistake to do that 
        21    when the people who are doing it don't understand 
        22    implications of what they are attempting to criminalize.
        23             For example, I firmly believe that everybody in 
        24    Congress wants -- it's based on computer security.
        25             (Interruption in the proceedings.)


         1             MR. HERNSTADT:  Bill, the phone is ringing.  
         2    I'm sorry. 
         3             MR. HART:  I could hear that.
         4             THE WITNESS:  Should I go on?
         5             MR. HART:  I'd like you to, but I want to make 
         6    sure your lawyer is in attendance.
         7             MR. HERNSTADT:  Yeah.  Yeah.
         8             MR. HART:  Okay.  Go ahead.
         9             THE WITNESS:  We all are worried about computer 
        10    security.  Some of the provisions, and in fact the 
        11    anti-circumvention provisions of the Digital Millennium 
        12    Copyright Act, appear to criminalize some standard 
        13    techniques that are used to try to determine if systems 
        14    are secure.  I don't think this is a good idea.
        15             They also could have the impact of forcing 
        16    researchers to consult with lawyers to determine if the 
        17    research that they are engaged in is legal or not.  This 
        18    could be quite unhealthy, and it could result in a lot 
        19    of self-censorship unnecessarily.    
        20    BY MR. HART:
        21         Q.  Now, do you personally engage in computer 
        22    research?
        23         A.  Not at the moment, no.    
        24         Q.  Have you within the last year?
        25         A.  No.   


         1         Q.  What familiarity, if any, do you have with the 
         2    defendants in this case and/or their web site?  
         3              MR. HERNSTADT:  Objection to the form of the 
         4    question.
         5              THE WITNESS:  Should I answer? 
         6             MR. HERNSTADT:  I take it you're asking about the 
         7    2600 web site and 2600, the magazine, and the publisher of 
         8    the magazine.
         9             MR. HART:  Correct.
        10             MR. HERNSTADT:  Okay.  Yes.
        11             THE WITNESS:  I've never met them, and I only 
        12    went to the web site -- oh, maybe a few weeks ago to see 
        13    what it looked like.  This is, I think, after I 
        14    submitted the deposition (sic), I believe.  I'm not 
        15    positive.
        16             MR. HERNSTADT:  I think she means 
        17    "declaration."
        18             THE WITNESS:  I'm sorry.  I'm not a lawyer.
        19    BY MR. HART:
        20         Q.  You're doing fine.
        21             So apart from looking at the 2600 web site, you 
        22    have had no communications with Mr. Corley, 
        23    Mr. Goldstein or anybody at 2600?
        24         A.  To the best of my knowledge, I have never had 
        25    any communications with any of them.    


         1         Q.  Do you know if Mr. Corley or Mr. Goldstein or 
         2    2600 are engaged in any form of security testing?  
         3              MR. HERNSTADT:  Bill, I think we have to clarify 
         4    that.  The complaint identifies Mr. Corley as Eric Corley, 
         5    a/k/a Emmanuel Goldstein.  There is only one person.
         6             That said, go ahead and answer the question.
         7             THE WITNESS:  I see.  I don't know.
         8    BY MR. HART:
         9         Q.  Are you aware, based on your review of the 2600 
        10    web site or based on anything else, what 
        11    Mr. Corley's claimed objective is in making DeCSS 
        12    available?  
        13             MR. HERNSTADT:  Objection to the form.  
        14    Compound, assumes fact not in evidence.
        15             THE WITNESS:  What his objective is? 
        16    BY MR. HART:
        17         Q.  What's his stated objective?
        18         A.  Well, I haven't actually checked his web site 
        19    to find that out. 
        20         Q.  Okay.  And you don't know, based on anything 
        21    else that you know, what his stated objective is?  
        22              MR. HERNSTADT:  Objection.  Assumes facts not 
        23    in evidence.
        24             THE WITNESS:  Should I answer?
        25             MR. HERNSTADT:  Yeah, if you can.


         1             THE WITNESS:  I mean I've heard things about it.  
         2    I would just have to comment on hearsay, if that's all 
         3    right.
         4    BY MR. HART:
         5         Q.  And what have you heard, and from whom have you 
         6    heard it?
         7         A.  I have heard that people have posted DeCSS on 
         8    the web site -- I mean, well, I'm not even sure.  Did he 
         9    post DeCSS or did he post a URL for it?  I'm not even 
        10    sure if he had DeCSS on his web site or not.
        11             So I know that there are people who are 
        12    concerned about the efforts to restrict the publication 
        13    of software and/or URLs on the web, and some people have 
        14    made postings as a way to try to -- I guess as a form of 
        15    protest.
        16             But I'm -- quite frankly, I'm not sure what he 
        17    has on his web site.
        18         Q.  Are you aware whether Mr. Corley or 2600 is 
        19    engaged in any sort of reverse engineering activities?
        20         A.  Again, I don't know of anything directly.  All 
        21    I could tell you was hearsay.
        22         Q.  And what is your hearsay?
        23         A.  My impression is that the reverse engineering 
        24    was done by others. 
        25         Q.  And do you know if at any time anybody at 2600 


         1    or Mr. Corley was engaged in any kind of reverse 
         2    engineering with respect to DeCSS or CSS?  
         3             MR. HERNSTADT:  Objection to the form.
         4             THE WITNESS:  As I say, my understanding is that 
         5    DeCSS was posted, or the URLs to other places that have it 
         6    were posted by various people, but that the reverse 
         7    engineering would basically -- the development of an 
         8    algorithm that could decrypt CSS was done elsewhere by 
         9    people who remained anonymous.  That's my understanding.  
        10    BY MR. HART:
        11         Q.  What, to your understanding, is DeCSS?
        12         A.  It's a -- again, I'm not a cryptographer, but 
        13    my understanding is that DeCSS is a method for 
        14    decrypting something which is encrypted in CSS.   
        15         Q.  And how do you know that?
        16         A.  From having read articles and talked to people.
        17         Q.  I'd like to turn to your declaration --     
        18         A.  Mm-hmm.
        19         Q.  -- which should be marked as Exhibit 2.
        20         A.  Should I pick it up?
        21         Q.  If you want to get that in front of you, we're 
        22    going to take a few minutes.
        23         A.  All right.  I have it.    
        24         Q.  You say in Paragraph 8 of your declaration -- 
        25    give you a moment to turn to that page --


         1         A.  I'm there.
         2         Q.  -- in the second sentence that "The primary 
         3    commercially relevant purpose for DeCSS," and then it 
         4    goes on --
         5         A.  Mm-hmm.
         6         Q.  -- is "to use on the larger reverse engineering 
         7    project of building a universal DVD player."
         8         A.  Mm-hmm.   
         9         Q.  What is the "commercially relevant purpose" 
        10    that you're referring to there?
        11         A.  Well, the idea of having universal DVD player 
        12    is that one could play a DVD using any system.
        13         Q.  And what role does DeCSS play in what you're 
        14    referring to as the larger reverse engineering effort?
        15         A.  Well, DeCSS would be a mechanism whereby the 
        16    DVDs could be played.  It would be part of the 
        17    mechanism.
        18         Q.  And does that mean that DeCSS performs a 
        19    function for this proposed universal DVD player or that 
        20    it's being used as part of a research process to build 
        21    this proposed universal DVD player?  
        22             MR. HERNSTADT:  Objection to the form of the 
        23    question.
        24             THE WITNESS:  Should I answer?  
        25             MR. HERNSTADT:  Yeah.  Compound and assumes 


         1    facts not in evidence.
         2             But answer it if you can.
         3             THE WITNESS:  Well, before one could build such 
         4    a player, one would have to do the research in order to 
         5    figure out how to do it.  So the research would have to 
         6    come first.
         7             Whether or not there would be any commercially 
         8    relevant purpose, I couldn't say.  I mean this is the 
         9    only thing I could think of.  Doesn't mean that it would 
        10    happen.
        11    BY MR. HART:
        12         Q.  Okay.  But do you have any understanding of how 
        13    DeCSS is relevant to the reverse engineering process of 
        14    building a universal DVD player?  
        15             MR. HERNSTADT:  Objection.  Asked and answered.
        16             You can answer it.
        17             THE WITNESS:  The reverse engineering process 
        18    of building?  I'm sorry, I don't quite understand what 
        19    you mean.
        20             MR. HART:  Okay.  Could we just have the 
        21    question read back? 
        22             (The record was read by the Reporter.)
        23             THE WITNESS:  I guess I'm still a little bit 
        24    confused what the reverse engineering process is.  
        25    Reverse engineering is a thing.  It's a tool that is 


         1    used for doing all kinds of things.
         2    BY MR. HART:
         3         Q.  DeCSS is?
         4         A.  Reverse engineering is a tool.
         5         Q.  Right, and I'm looking at Paragraph 8 of your 
         6    declaration.
         7         A.  I understand.  I'm trying to figure out what 
         8    this question means.  Reverse engineering is a tool; 
         9    DeCSS is basically a bunch of software.     
        10         Q.  Mm-hmm.
        11         A.  If you wanted to build a universal DVD player 
        12    to play DVDs, you would need to have a method for 
        13    decrypting the encrypted DVDs.  And DeCSS is such a 
        14    method.  It doesn't have to be the only one.  You could 
        15    have a different one.  All you need is something that 
        16    can decrypt them, however that works.  That's one 
        17    possibility.
        18         Q.  So is it your testimony as far as you 
        19    understand it that DeCSS performs the decryption 
        20    function in the context of building a universal DVD 
        21    player?  
        22             MR. HERNSTADT:  Objection.  Misstates the 
        23    testimony.
        24             Go ahead.
        25             THE WITNESS:  It could perform a decryption.


         1    BY MR. HART:
         2         Q.  Ma'am, I'm not trying to quarrel with you.  I'm 
         3    just trying to get an understanding of this second 
         4    sentence in Paragraph 8 when you say commercially -- 
         5         A.  And I don't want to quarrel with you, either.  
         6    I'm just trying to figure out what the right thing to say 
         7    is here.
         8         Q.  Right.  And my question is, what's the relevance 
         9    of DeCSS to use in what you say is the larger reverse 
        10    engineering project of building a universal DVD player?
        11             MR. HERNSTADT:  Objection.  Asked and answered.
        12             You can answer it again.
        13             THE WITNESS:  It would be used to decrypt the 
        14    encrypted DVD.
        15    BY MR. HART:
        16         Q.  Okay.  Are you aware of whether there currently 
        17    exists a so-called universal DVD player that's out in 
        18    the market and available for people to use?
        19         A.  Well, my understanding is that there doesn't 
        20    exist one. 
        21         Q.  Is it your understanding that DeCSS itself 
        22    performs any kind of DVD playback function or is merely a 
        23    decryption device?
        24         A.  My understanding is that it's merely a 
        25    decryption scheme.  


         1         Q.  Now, in Paragraph 10 --  
         2         A.  Mm-hmm.  
         3         Q.  -- of your declaration --
         4         A.  Mm-hmm.
         5         Q.  -- you talk about CSS as, and I quote, 
         6    "amazingly weak."  Do you see that?
         7         A.  Yes, I do.
         8         Q.  Do you know how long CSS-encoded DVD products 
         9    have been in the marketplace?
        10         A.  Oh, I would guess a couple of years.  I'm not 
        11    sure.
        12             MR. HERNSTADT:  Let me instruct the witness not 
        13    to guess.  Don't speculate.  If you don't know, you just 
        14    say you don't know.
        15             THE WITNESS:  Well, then, I don't know.
        16    BY MR. HART:
        17         Q.  Do you have any understanding of how long 
        18    CSS-encrypted DVD has been in the marketplace?
        19         A.  It seems like that's the same question, isn't 
        20    it?
        21         Q.  I don't want you to guess either, ma'am, but to 
        22    the extent you could say that you know it's been longer 
        23    than the last two or three months -- 
        24         A.  It's been -- I could certainly say it's been 
        25    longer than the last two or three months.


         1             MR. HERNSTADT:  Bill, you're asking for a 
         2    general -- a couple of years or something like that?
         3             MR. HART:  That's what she said the first time, 
         4    and I was willing to accept that until you cautioned her 
         5    not to guess.  I don't want guesswork either.  If we could 
         6    get a fair approximation of you understanding, that's all 
         7    I want.
         8             MR. HERNSTADT:  That's fine.  I was just telling 
         9    the witness that, not with respect to just this question, 
        10    but also into the future.  So if the answer is "I guess," 
        11    that won't be the answer.  If Barbara can say "I'm pretty 
        12    sure it's a couple of years," then that's her answer.
        13             THE WITNESS:  I was guessing.
        14    BY MR. HART:
        15         Q.  I'm sorry, you said you were guessing?
        16         A.  Yeah, when I said a couple of years, I was 
        17    guessing. 
        18         Q.  You say in Paragraph 10 --
        19         A.  Yes.
        20         Q.  -- that "with the carelessness of at least one 
        21    licensee, appears to have created additional 
        22    opportunities to break the system."  
        23             Do you see that?
        24         A.  Yes, I do.
        25         Q.  Okay.  


         1         A.  Mm-hmm.
         2         Q.  My question is what are you referring to there?
         3         A.  Oh, damn it.  I don't remember the name of a -- 
         4    this is something -- I meant to get this before I came 
         5    here.  I just don't remember the name of the company, but 
         6    apparently one of the -- one of the keys was left in plain 
         7    text, is my understanding.  And I forget the name of the 
         8    licensee who did that.  I'm sorry.  I have that 
         9    information at home.  I just don't remember it.
        10         Q.  That's all right.  And based on your 
        11    understanding that one of the keys was exposed, right -- 
        12         A.  Yes.
        13         Q.  -- is it your understanding that that's how CSS 
        14    was ultimately cracked?
        15         A.  My understanding is that CSS was cracked in a 
        16    number of ways.  And in fact, I've heard of other people 
        17    who have cracked it too, independent of this -- of the 
        18    creation of DeCSS.
        19             And cracking a -- an encryption scheme, there are 
        20    many different ways one can crack an encryption scheme.  
        21    Having one of the keys in plain text is a very useful 
        22    technique for having to crack it.  Whether or not that was 
        23    a fundamental part of the whole process of cracking CSS, I 
        24    can't say because I don't know who did it and I don't know 
        25    exactly how they did it.


         1         Q.  Gotcha.  Do you know whether it was cracked as 
         2    a result of a so-called "brute force attack"?
         3         A.  Well, anyone can do a brute force.  You just 
         4    try all the possible keys.  That doesn't take long on a 
         5    high-speed computer.  That doesn't take much skill at 
         6    all.
         7         Q   When you say it doesn't take very long, what 
         8    kind of time interval -- 
         9         A.  A few minutes.
        10         Q.  Pardon?
        11         A.  A few minutes.
        12         Q.  A few minutes?
        13         A.  Mm-hmm.  That's one of the problems with 40-bit 
        14    encryption is that it could be cracked by brute force.  
        15         Q.  In Paragraph 11 of your declaration, you discuss 
        16    your knowledge about the anti-circumvention legislation, 
        17    right?  
        18             MR. HERNSTADT:  Objection to the form of the 
        19    question.  It says what it says.
        20    BY MR. HART:
        21         Q.  Well, let me put it this way:  You say that the 
        22    Film Industry, inish caps, "submitted strict 
        23    anti-circumvention legislation to Congress in hopes of 
        24    having Congress pass a law."  Do you see that?
        25         A.  Uh-huh.


         1         Q.  Was the DMCA ultimately the law that was 
         2    enacted as you referred to such a law here in 
         3    Paragraph 11?  
         4             MR. HERNSTADT:  Objection.  Form.
         5             Go ahead.
         6             THE WITNESS:  Yes.
         7    BY MR. HART:  
         8         Q.  Now, were you aware -- in Paragraph 12, you 
         9    refer to the DVD CCA having been created in December of 
        10    1999.
        11         A.  Yes.
        12         Q.  My question is, prior to December of 1999, were 
        13    you aware of whether any entity was issuing licenses for 
        14    the CSS technology?
        15         A.  No, I was not aware.  In fact, I wasn't aware 
        16    of the DVD CCA in December of 1999, either.  I learned 
        17    about that later.     
        18         Q.  Okay.  And who did you learn --
        19         A.  I learned it from doing some research for the 
        20    article I wrote.  I don't remember.  I went to a number 
        21    of web pages and talked to experts.
        22         Q.  So you have no knowledge about the licensing of 
        23    CSS technology prior to December of '99; is that 
        24    correct?
        25         A.  Absolutely right, yes.  


         1         Q.  Now, you also say here that you've been 
         2    informed -- and I'm still in Paragraph 12, you've been 
         3    informed and it's your understanding that "to obtain a 
         4    license, one pays a fee and signs an agreement pledging 
         5    not to produce non-compliant machines or to reveal a copy 
         6    protection scheme," right?
         7         A.  Yes. 
         8         Q.  In your experience, are such pledges, as you 
         9    call them, unusual in technology licensing?  
        10             MR. HERNSTADT:  Objection to the form.
        11             THE WITNESS:  I'm not an expert in that area.
        12    BY MR. HART:
        13         Q.  Okay.  Well, you were at IBM, were you not?
        14         A.  Correct.
        15         Q.  For how long?
        16         A.  Oh, 18 years.   
        17         Q.  Eighteen years?
        18         A.  Yeah.  I started before I got my Ph.D., yes.
        19         Q.  Had you ever seen any so-called technology 
        20    licenses in your 18 years at IBM?
        21         A.  I didn't see anything like this, no.
        22         Q.  What do you mean, "like this"?
        23         A.  I mean obviously -- I mean I wasn't involved 
        24    with licenses at IBM.  I was a researcher.   
        25         Q.  Okay.  How many years have you been involved in 


         1    computers and technology?
         2         A.  Starting from -- when do you want me to start?  
         3    Graduate school?  When I first started working?
         4         Q.  Whenever, I mean including schooling.
         5         A.  If you want to start from graduate school, I 
         6    would say roughly 25 years.   
         7         Q.  And is it your testimony that you have no 
         8    knowledge about practices in licensing technology or 
         9    whether it's common or uncommon for an agreement to be 
        10    put into place requiring a party not to reveal certain 
        11    information or material that's provided to them in 
        12    connection with the license?
        13             MR. HERNSTADT:  Objection to form.  Misstates 
        14    the testimony.  Compound.
        15             Answer it if you can.
        16             THE WITNESS:  Well, I'm familiar with 
        17    shrink-wrap licenses.  Is that what you have in mind? 
        18    BY MR. HART:
        19         Q.  I'm just asking you generally what you know.
        20         A.  I know about shrink-wrap licenses.
        21         Q.  Now, you say in the next couple of sentences in 
        22    Paragraph 12 that "The Linux community was divided."
        23             What do you mean by that?
        24         A.  What I mean is that there are -- basically the 
        25    open and free software movement has a philosophy that they 


         1    should -- that everything is open and available to users. 
         2         Q.  Right. 
         3         A.  Having some kind of nondisclosure agreement, 
         4    which is, I gather, what was being required to obtain a 
         5    DVD license, is contrary to the philosophy of these 
         6    movements.     
         7         Q.  Right. 
         8         A.  Therefore, if people wanted to be able to play 
         9    legally-purchased DVDs on systems that used say, for 
        10    example, Linux, they would have to enter -- and if they 
        11    wanted to do it through the formal channels, they would 
        12    have to enter into an agreement which, was contrary to 
        13    the whole philosophy behind Linux.
        14             So this created a problem.  Some people wanted to 
        15    compromise and sign the nondisclosure agreement, or 
        16    whatever the license is, because I haven't seen one; and 
        17    others felt that this was inappropriate, given the nature 
        18    of the movement of the open and free software movements to 
        19    sign such an agreement.
        20             So that was how the community was divided. 
        21         Q.  I see.  You say one group, LSDVD, has, you 
        22    said, quote, "has been working on a licensed DVD 
        23    player."
        24         A.  Mm-hmm.
        25         Q.  Do you see that?


         1         A.  Mm-hmm.
         2         Q.  Was that work on a licensed DVD player for the 
         3    Linux platform?
         4         A.  That's my understanding.  
         5         Q.  What do you base that understanding on?
         6         A.  From talking to people.
         7         Q.  People in the Linux community?
         8         A.  Yes, I expect so.  I mean basically, I talked to 
         9    a number of people prior to writing an article on the 
        10    whole DVD controversy.  I mean I spoke to many people, I 
        11    exchanged e-mail with a lot of people, and I don't 
        12    remember who said exactly what.  But I tried very hard to 
        13    verify the things that I was told as much as I could.
        14         Q.  When you say you wrote an article on the DVD 
        15    controversy --
        16         A.  Yes, I did.
        17         Q.  -- what controversy are you talking about, this 
        18    lawsuit?
        19         A.  Well, that was one of the things I mentioned, 
        20    yes.
        21         Q.  Is this article listed in your curriculum 
        22    vitae?
        23         A.  I expect it is, but in any case, we have a copy 
        24    here don't we?
        25             MR. HERNSTADT:  Probably do.


         1             THE WITNESS:  We can give you a copy.
         2             MR. HERNSTADT:  Bill, just so you know, on the 
         3    second page, it's the top publication.  It's the first 
         4    publication listed under the heading "Publications."
         5             THE WITNESS:  So it is.  That is the most 
         6    recent article I had written when I sent this CV.
         7             MR. HART:  That's the second article or the 
         8    first one? 
         9             MR. HERNSTADT:  First one.
        10    BY MR. HART:
        11         Q.  "To DVD or Not to DVD"?
        12         A.  That's it.
        13         Q.  Got it.
        14         A.  Some people objected to the title.  
        15         Q.  Pardon?
        16         A.  Someone objected to the title.  Said it didn't 
        17    capture what was in the article.
        18         Q.  Oh.  Why not?
        19         A.  He was just being cute.   
        20         Q.  And what was the thesis of the article?
        21         A.  The thesis of the article was that there are 
        22    some -- may I look at the article and I can tell you 
        23    what it says?  Is that allowed?
        24         Q.  If it helps you, and I guess I'll ask 
        25    Ms. Miller to mark it.


         1         A.  We can give it to you.
         2             MR. HERNSTADT:  If I can find it.
         3             THE WITNESS:  There it is.  Okay.  Good.  
         4    Actually, so it's -- let me just scan the article while 
         5    he does that.
         6             It's basically talking about the law cases that 
         7    have been brought, so I mentioned the New York and 
         8    Connecticut cases, and I mentioned the case in California.  
         9    I talk about the whole issue of Linux.  I mentioned 
        10    Johansen.  I start off by talking about him a little bit, 
        11    I talk about the DVD CCA and about the problems of 
        12    reverse engineering, the issues surrounding reverse 
        13    engineering.  And I also mentioned the Digital 
        14    Millennium Copyright Act slightly.
        15             And it's sort of a plea to try to -- I end by 
        16    saying, "We need to declare a truce in the intellectual 
        17    property war and start a discussion about how 
        18    intellectual property owners can receive fair 
        19    compensation without resorting to restrictions on 
        20    technology and speech."  
        21             That, I think, captures the main idea of the 
        22    article.  Shall I hold onto it?
        23             MR. HART:  Pardon?
        24             THE WITNESS:  I'm sorry.  I'm just asking if I 
        25    should hold onto this 'til we're finished with the 


         1    questioning.      
         2             MR. HERNSTADT:  I'm going to give it to 
         3    Ms. Miller so she can mark it as, I guess, Simons 
         4    Exhibit 3, Bill.  Is that what you want?
         5             MR. HART:  That would be great.
         6             MS. MILLER:  And I would like to state for the 
         7    record that Mr. Hernstadt has just turned over a two-page 
         8    article entitled "To DVD or Not to DVD."  It indicates 
         9    that the author is Barbara Simons, and the legend "From 
        10    the President" is across the top.  It appears to come from 
        11    the May, 1999 --
        12             THE WITNESS:  It's 2000, isn't it?
        13             MS. MILLER:  At the bottom, it says May, 1999.
        14             THE WITNESS:  It should be 2000.
        15             MR. HERNSTADT:  It's 2000.  If you look in 
        16    the --
        17             THE WITNESS:  It should be 2000.
        18             MS. MILLER:  So that's a typographical error.
        19             THE WITNESS:  That's a mistake in our digital 
        20    library.  Thank you.  I'll have to let them know.
        21             MR. HERNSTADT:  If you look at the CV, it's 
        22    identified as a 2000 article. 
        23             THE WITNESS:  I couldn't have written that 
        24    article in 1999.
        25             MS. MILLER:   Certainly not.  So it's the May, 


         1    2000 edition of the Communications of the ACM.
         2             THE WITNESS:  Just to let you know, as president, 
         3    I wrote a column which occurred roughly quarterly in the 
         4    journal.  So this was just one of my columns; in fact, the 
         5    last one.
         6             MR. HART:  Great. 
         7             MS. MILLER:  We'll mark this as Exhibit 3.  
         8             (Plaintiffs' Exhibit 3 was marked for 
         9    identification.) 
        10    BY MR. HART:
        11         Q.  Thank you.  Did you have any need to consult a 
        12    lawyer in connection with the preparation of that 
        13    article?
        14         A.  I talked with some lawyers, but not as -- I 
        15    just talked with them because they were lawyers involved 
        16    in the legal cases.  That's all.
        17         Q.  Right.  Did you review the provisions of the 
        18    DMCA yourself without having input from a lawyer to the 

        19    extent you commented on the provisions?
        20         A.  The comments on the provisions in that article 
        21    are pretty negligible.  I think I mentioned in passing and 
        22    I referenced another article that I wrote on it earlier.  
        23    You can check.  I don't believe I really go into it very 
        24    much.
        25             Do you want me to look and see?


         1         Q.  No.  Just to the best of your knowledge sitting 
         2    here today.  
         3         A.  Yeah.
         4         Q.  You say in Paragraph 14 of your declaration 
         5    that you're informed that many of those involved with 
         6    the CSS break or "with breaking CSS say they did so to 
         7    make it possible to play DVDs on Linux," et cetera.      
         8            How were you informed of that?
         9         A.  Again, this is something which I learned when I 
        10    was researching that particular article.
        11         Q.  And you learned that by talking to other 
        12    people?
        13         A.  Yes.  And when I say "talking," I use that in the 
        14    generic sense.  A lot of talking I do is by e-mail.
        15         Q.  Are some of those e-mail within the group of 
        16    things that you turned over to Mr. Hernstadt today? 
        17         A.  No.
        18         Q.  I'm sorry, yes?
        19         A.  No.
        20         Q.  Do you have those e-mails?
        21         A.  I have no idea.
        22         Q.  Are you saying you did not include those among 
        23    the documents that you collected?
        24         A.  Yes, that's correct. 
        25         Q.  Is there a reason why?


         1         A.  I just didn't think they had anything to do 
         2    with this.  Any communications I had were relevant for 
         3    writing this article, not for preparing for this 
         4    testimony.     
         5         Q.  I see, but you say in Paragraph 14 of your 
         6    declaration, "I am informed" --  
         7         A.  Mm-hmm.
         8         Q.  -- "that many of those involved with breaking 
         9    CSS" and so on, and you just told me that those 
        10    communications included communications you have had with 
        11    people by e-mail.
        12         A.  I said they may have.
        13         Q.  May have.  
        14         A.  I mean I talk with people in many ways, on the 
        15    phone, by e-mail, at meetings.  I was going to web 
        16    sites, I was doing all of those things and trying to get 
        17    the material to write this article, because it was a 
        18    rather difficult article to write, quite frankly.
        19         Q.  But sitting here today, you don't recall who and 
        20    how you were informed that "many of those involved in 
        21    breaking CSS" and so on?
        22         A.  I don't recall, but I did very much have the 
        23    sense that this was common knowledge.   
        24         Q.  Now, you say in the next sentence of 
        25    Paragraph 14 that "The plaintiffs in this case appear to 


         1    believe that section 1201 prohibits almost all reverse 
         2    engineering of copy-protection systems," but "that is 
         3    not the case." 
         4         A.  Yes.
         5         Q.  What do you base that statement on?
         6         A.  I believe the next sentence, which talks about 
         7    interoperability.
         8         Q.  Taking those two sentences together, what's the 
         9    basis for your statement that plaintiffs appear to believe 
        10    that section 1201 prohibits almost all reverse 
        11    engineering?
        12         A.  Well, my sense is that if you want to be able 
        13    to play a DVD on a computer which has Linux, then my 
        14    interpretation, and I'm not a lawyer, is you should be 
        15    allowed to reverse engineer in order to develop a 
        16    technology such that you can do that, and that would be 
        17    covered by the interoperability exclusion of the DMCA.
        18         Q.  But you said earlier in your testimony today 
        19    you're not aware of whether Mr. Corley/Goldstein or 2600 
        20    is in any way involved in reverse engineering; is that 
        21    correct?
        22              MR. HERNSTADT:  Object to the form.  Asked and 
        23    answered.
        24             THE WITNESS:  That is what I said I believe, 
        25    yes. 


         1    BY MR. HART:
         2         Q.  That is what you said?
         3         A.  That's my -- yes, I think so.  
         4         Q.  I'm not trying to give you a hard time.  It's 
         5    the phone connection.  I apologize for it.  
         6             When you say in the next sentence of 
         7    Paragraph 14, "I believe this exemption would directly 
         8    apply to the use (or publication) of DeCSS," what do you 
         9    mean by that?
        10         A.   "Publication" to me means publishing something 
        11    in a book, in a newspaper, on the web, in fliers.
        12             Is that your question?
        13         Q.  I want to know how publication of DeCSS is 
        14    covered by the exemption as you said in this sentence.
        15         A.  Because DeCSS would be a tool that would allow 
        16    for the development of interoperability so that you can 
        17    play legally-purchased DVDs on a system that uses Linux, 
        18    on a computer with a Linux system.
        19         Q.  So is that because the end user would then be 
        20    enabled to get DeCSS to use it for a Linux-related 
        21    purpose?  
        22             MR. HERNSTADT:  Objection to the form.
        23             If you understand that, you can answer it.
        24             THE WITNESS:  Well, my sense is that the end 
        25    user might actually not be bothered with DeCSS if 


         1    somebody developed the technology to allow a DVD to be 
         2    played on a Linux machine.
         3    BY MR. HART:
         4         Q.  Right.
         5         A.  It might have DeCSS embedded in it, but there 
         6    is no reason why the end user would have to be bothered 
         7    by that.  Ideally, the end user wouldn't be. 
         8         Q.  But your statement that the exemption would 
         9    directly apply to the publication of DeCSS, is that 
        10    based on your reading of the exemption or something 
        11    else?
        12         A.  Oh, clearly my reading.  
        13         Q.  And let me ask you this:  If someone just put 
        14    out DeCSS and made it available to anybody and everybody 
        15    for whatever use they wanted to make of it, would you 
        16    still regard that as something that you believe should 
        17    be covered by the exemption?
        18         A.  Well, certainly it could be used by people who 
        19    wanted to play a DVD on Linux and who had the skills to 
        20    complete the whole process.  So I believe in that case, 
        21    the exemption would also be included.  So yes. 
        22         Q.  Are you aware of any potential to use DeCSS as 
        23    a device to so-called "rip" DVDs?
        24         A.  What do you mean by "rip"?
        25         Q.  Do you have any knowledge of what the word 


         1    "rip" means?
         2         A.  I'm not sure how you're using it here.  I'm not 
         3    trying to be difficult.
         4         Q.  That's fine.  I understand.  Let me rephrase 
         5    the question, then.
         6             DeCSS decrypts CSS-encoded DVD.  Right so far?
         7         A.  Yes.
         8         Q.  And to your knowledge, does it direct the 
         9    unencrypted copy to the hard drive of the computer?
        10         A.  That's my understanding, again.    
        11         Q.  Now at that point, can't the plain text, if you 
        12    will, of the DVD movie, unencrypted DVD movie content 
        13    that's on the hard drive be copied and/or compressed 
        14    and/or transmitted further?
        15         A.  Sure.
        16              MR. HERNSTADT:  Objection to the form.
        17             THE WITNESS:  Sure.
        18    BY MR. HART:
        19         Q.  Sure? 
        20         A.  Any unencrypted thing can be copied.  Any 
        21    encrypted thing can be copied.  Anything can be copied.
        22         Q.  Right.  But in order to take advantage of an 
        23    encrypted copy, at some point you've got to decrypt it, 
        24    correct?
        25         A.  At some point, but you could certainly copy it 


         1    without decrypting it.
         2         Q.  Have you ever done that with a DVD?
         3         A.  No.  I've never played a DVD.
         4         Q.  Do you have a DVD player at home?
         5         A.  No.  The person I live with does, but it's his, 
         6    not mine.  And I've never played anything on it.
         7         Q.  Have you ever watched anything on it?
         8         A.  I think I may have seen a movie at IBM research 
         9    back when people were doing research in this area that 
        10    was using DVD technology.
        11         Q.  No entertainment, though?
        12         A.  No.  I haven't.  I heard it's very nice, but I 
        13    haven't seen it.  
        14         Q.  Now, you say in Paragraph 15 of your 
        15    declaration, and I'm going down several sentences to a 
        16    sentence beginning "In this regard, I will note that 
        17    DeCSS is not a prerequisite for making illegal 
        18    copies" --
        19         A.  Yes, I see that.
        20         Q.  -- "since other descramblers exist and are 
        21    available," what's your basis for that statement?
        22         A.  Well, the idea -- basically what's called a 
        23    descrambler is a software or program for decrypting 
        24    something that's encrypted.  And there is no single way 
        25    of doing that.  This is -- you know, there are many 


         1    different ways one can write software to solve the same 
         2    problem, and in fact, there is a web site, I think it's 
         3    CMU, which has several different versions, for example.
         4         Q.  Are we talking about Dr. Touretsky's web site?
         5         A.  Yes.
         6         Q.  Are you saying that Dr. Touretsky's web site 
         7    provides CSS descramblers that can be operated as an 
         8    executable piece of software?
         9         A.  That's my understanding.  
        10         Q.  That is your understanding?
        11         A.  Yes, or you can modify what he has there to 
        12    make it executable in some cases.
        13         Q.  Apart from what's on Dr. Touretsky's site, do 
        14    you have any other information that forms the basis for 
        15    your statement that "other CSS descramblers exist"?
        16         A.  Well, I've heard of somebody who broke CSS in 
        17    two either hours or days, and I don't remember what the 
        18    figure is, but one or the other, someone who is a 
        19    cryptographer who just did this, I think, as an 
        20    exercise. 
        21         Q.  And when was that?
        22         A.  Oh, when was that?  I believe it was within the 
        23    past year.
        24         Q.  Within the past year.  Do you know if it was 
        25    after DeCSS was released?


         1         A.  I don't know.   
         2         Q.  You don't know?
         3         A.  I don't know.  
         4             I don't believe he posted it, by the way, but he 
         5    did it.  He broke it.   
         6         Q.  I see.  And how did you find out about this?
         7         A.  From a colleague.
         8         Q.  And can you give me the name of that colleague?
         9         A.  She asked me not to.  What do I do?
        10             MR. HERNSTADT:  Bill, what Barbara said is that 
        11    she asked her not her to.
        12             MR. HART:  Excuse me?
        13             MR. HERNSTADT:  She asked her not to.
        14             Is this the colleague that broke it, or is this 
        15    the colleague that told you about it?
        16             THE WITNESS:  No.  This is the one who told me 
        17    about it.
        18             MR. HART:  I'm sorry, I'm just trying to get an 
        19    understanding what's happening on that end of the phone.
        20             MS. MILLER:  Well, if I can just state, there 
        21    has been a concern expressed by Dr. Simons that the 
        22    person who told her about this cracking of CSS has asked 
        23    that her name not be identified.
        24             MR. HART:  I see.
        25             MS. MILLER:  I don't know whether 


         1    Mr. Hernstadt feels that it might be appropriate to 
         2    designate a portion of the transcript confidential or 
         3    highly confidential within the meaning of our protective 
         4    order or whether Dr. Simons feels she can't reveal the 
         5    name.
         6              MR. HERNSTADT:  I'm going to go along with 
         7    Barbara on that.
         8             If you feel like you can't reveal the name -- 
         9             MR. HART:  Just so the record is clear, I'm not 
        10    trying to berate you about this, Barbara.
        11             THE WITNESS:  I set myself up.
        12    BY MR. HART:
        13         Q.  You decline to identify the person who told you 
        14    about this?
        15             THE WITNESS:  What happens if I do mention the 
        16    names?
        17             MR. HERNSTADT:  Then, for example -- 
        18             THE WITNESS:  The person could be subpoenaed?
        19             MR. HERNSTADT:  Yeah, if Bill wants to, yeah.
        20             MR. HART:  Again, I'm not trying to abuse you 
        21    over this.  I just want a clear statement.
        22              Are you declining to give me the identification 
        23    of that person?
        24             THE WITNESS:  Is it okay if I do that?  
        25             MR. HERNSTADT:  Yes.


         1             THE WITNESS:  Okay, then yes, I would like to 
         2    decline.  
         3    BY MR. HART:
         4         Q.  When you say in Paragraph 15 at the end that 
         5    "given the weaknesses of the DVD copy protection system, 
         6    it was, as the DVD CCA was aware, only a matter of time 
         7    before CSS would be broken," right -- 
         8         A.  Yes.
         9         Q.  -- is it your testimony that you do not know how 
        10    long, in fact, it took before CSS was broken?  
        11             MR. HERNSTADT:  Objection to the form of the 
        12    question.  I think that misstates Dr. Simons' testimony.
        13             But go ahead.
        14             THE WITNESS:  Well, I'm certainly not aware of 
        15    when CSS was first broken, and I suspect nobody is 
        16    because this is the kind of thing --      
        17    BY MR. HART:
        18         Q.  And you also said earlier you were only 
        19    guessing as to when CSS was first released.
        20         A.  Yes, that's correct.
        21         Q.  So you cannot tell me as a matter of fact based 
        22    on you knowledge how much time it actually took from the 
        23    time that CSS was available on a commercially-released 
        24    product until it was, in fact, broken; is that right?
        25         A.  That's certainly correct.  And what I was saying 


         1    is that in addition, I doubt anybody could tell that 
         2    because you could have situations where someone would 
         3    break it and not publicize that.
         4         Q.  Why would someone break it and not publicize 
         5    it?
         6         A.  As a test.
         7         Q.  As a test?
         8         A.  Yes, to see how clever you are as a 
         9    cryptographer.
        10         Q.  Is it also possible that someone that did so 
        11    could share that information with others in a more 
        12    private fashion?
        13             MR. HERNSTADT:  Objection to form.
        14             THE WITNESS:  Sure.
        15    BY MR. HART:
        16         Q.  Like by e-mail?
        17         A.  Possible. 
        18         Q.  Just bear with me here.  The reason for the 
        19    silence here is I'm actually trying to make my questions 
        20    shorter rather than longer.
        21         A.  I appreciate that.  Thank you.
        22             MR. HERNSTADT:  The reason for the silence on 
        23    this end is because we were all hoping that's what you 
        24    were doing.
        25             THE WITNESS:  I think everyone is starving.  They 


         1    haven't had lunch.  If you look at the videotape, you'll 
         2    see that I took the liberty of having a yogurt in the 
         3    beginning. 
         4             MR. HART:  Oh.  
         5             THE WITNESS:  You're going to move it.  Thank 
         6    you.
         7    BY MR. HART:
         8         Q.  Now, you say in Paragraph 10 of your declaration, 
         9    I know we're going backwards now but it's actually 
        10    progress, that there was a reaction to the arrest of the 
        11    Norwegian teenager who originally posted DeCSS and "led to 
        12    thousands more people downloading DeCSS and/or creating 
        13    mirror sites of the program."  
        14         A.  Right.
        15         Q.  Do you see that?
        16             Is that consistent with what you said earlier 
        17    about the posting of DeCSS being a form of protest?
        18         A.  Yes, I believe so.   
        19         Q.  Are you aware of what role Mr. Corley or 2600 
        20    played in that regard?
        21         A.  In regard of the downloading?
        22         Q.  And/or the mirroring of DeCSS on the internet.
        23         A.  No, I'm not.
        24         Q.  Are you aware whether Mr. Corley encourages 
        25    people to mirror his site containing DeCSS and/or links 


         1    to DeCSS?
         2         A.  I think I've heard something to that effect.
         3         Q.  Okay.  
         4         A.  I'm not intimately familiar with his web site.
         5         Q.  Gotcha.  But when you looked at his web site, 
         6    do you recall seeing a list of mirrors or the list of 
         7    hot links?
         8         A.  I saw a whole bunch of URLs.
         9         Q.  Did you see the box at the bottom of the URLs
        10    that said "Please submit your URL or a mirror here"?
        11         A.  I don't remember.  I may have.  I haven't looked 
        12    at it for a while, so it's not fresh in my memory.
        13         Q.  Fair enough.  You haven't posted DeCSS, have 
        14    you?
        15         A.  Nope, although I do give a URL for it in my 
        16    article.
        17         Q.  Okay.  And is your article on line?
        18         A.  It is.     
        19         Q.  Pardon?
        20         A.  It is.
        21         Q.  Okay. And is that URL set up as a link?
        22         A.  I believe so.  It goes to the deposition -- to 
        23    the -- 
        24             MR. HERNSTADT:  Do you want to look?  
        25             MR. HART:  I'm sorry.


         1             THE WITNESS:  Could I see the article for a 
         2    minute?  I'll tell you.
         3    BY MR. HART:
         4         Q.  You're referring to Exhibit 4?  Or where are we, 
         5    3?
         6             MS. MILLER:  Exhibit 3.
         7             THE WITNESS:  This is the "DVD or Not to DVD" 
         8    report, 3.
         9             MS. MILLER:  That's 3.
        10             THE WITNESS:  I think I give a URL.  Yeah.  I 
        11    give a URL to the Hoy -- to the Hoy testimony or the 
        12    Hoy -- it's -- should I read the URL to you that I have 
        13    included? 
        14    BY MR. HART:
        15         Q.  I'm sorry, you give a URL to --
        16         A.  Let me read you these two sentences, okay?
        17         Q.  And you're reading from Exhibit 3?
        18         A.  Yes.
        19         Q.  Okay.  Go ahead.
        20         A.  "If you wish to obtain a copy of the DeCSS
        21    source code, the DVD CCA thoughtfully provided it in the 
        22    California case."  And then I give the URL for the 
        23    Hoy -- it's B. 
        24         Q   And why did you do that?  
        25             MR. HERNSTADT:  Hang on.  She's not done.


         1             THE WITNESS:  There is another sentence:  "Or 
         2    you can wear it on a T-shirt (to order, go to 
         4    If you can remember that.
         5    BY MR. HART:
         6         Q.  And why did you do that?
         7         A.  To point out that it's widely available. 
         8         Q.  And that's source code as it was contained in 
         9    what you refer to in Paragraph 13 of your declaration as 
        10    the "notorious Hoy declaration"?
        11         A.  Yeah, I guess so.
        12         Q.  I'm just --
        13         A.  Yeah.
        14             MR. HERNSTADT:  The now notorious.
        15             THE WITNESS:  Now notorious.  Slightly 
        16    colorful, isn't it? 
        17    BY MR. HART:
        18         Q.  And it's also source code as it is embodied on 
        19    a T-shirt, which is a piece of wearing apparel?
        20         A.  Right.  It is.  It's there.  Yes.  Mm-hmm. 
        21    That's exactly what I just read.   
        22         Q.  Okay.  And is that also part of a protest on 
        23    your part?
        24         A.  My sense is that if something can be published 
        25    in a newspaper or in a book, it should be legal to post 


         1    it on the net. 
         2         Q.  I'm sorry, your voice dropped.
         3         A.  My sense is that First Amendment rights should 
         4    apply to the net as well as to books and newspapers --
         5         Q.  Okay.  
         6         A.  -- and T-shirts.  
         7         Q.  Okay.  In Paragraph 17, you talk about certain 
         8    "fair use" rights of copyrighted materials. 
         9         A.  Yes. 
        10         Q.  Now, do you regard it as fair use, using the 
        11    term as you've used it in your declaration, to copy 
        12    decrypted DVD movies and transmit them over the internet 
        13    to others?  
        14             MR. HERNSTADT:  Objection to the question 
        15    insofar as it calls for a legal conclusion.
        16             And I would simply direct the witness to answer 
        17    only as to her understanding but not to give any kind of 
        18    a legal opinion, because I don't think she's qualified 
        19    to do so.
        20              THE WITNESS:  I'm definitely not qualified to 
        21    do so.  My amateur opinion is that it is illegal to 
        22    completely copy a movie and send it to somebody else 
        23    like that, the way you've described it, if you're 
        24    talking about the full movie, that that is not fair use.
        25    BY MR. HART:


         1         Q.  Okay.  And if the decrypted DVD movie content 
         2    is resident on the hard drive of a computer as a result 
         3    of using DeCSS, right --
         4         A.  Mm-hmm.
         5         Q.  Are you with me so far?
         6         A.  I'm with you.
         7         Q.  -- and you say that that may help enable Linux 
         8    playback in some way which you regard as permissible, 
         9    right --
        10         A.  Yes.
        11         Q.  -- but may also have the potential for doing 
        12    other things like copying and transmission on the 
        13    internet --
        14         A.  Yes.
        15         Q.  -- how do you, Barbara Simons, come out in 
        16    terms of drawing a line between what you regard as 
        17    permissible on the one hand and the risk of what may be 
        18    impermissible on the other hand?  
        19             MR. HERNSTADT:  Objection to the form.
        20             Go ahead, Barbara.
        21             THE WITNESS:  I mean I feel there are some 
        22    things that are okay to do and some things that are not 
        23    okay.  Again, I'm not a lawyer, but my understanding is 
        24    it's okay to use a VCR to make copies, for example as we 
        25    just did of the Wimbledon tournament to play back later.


         1             On the or hand, if that happened to be 
         2    copyrighted material, and I don't know if it is or not 
         3    but certainly a movie would be, it would not be legal to 
         4    do that and then try to sell it, for example, to other 
         5    people.
         6             (Interruption in the proceedings.)
         7             MR. HERNSTADT:  Hold on here, Bill.
         8             MS. MILLER:  Let's go off the record for a 
         9    second.
        10             THE VIDEOGRAPHER:  Off the record, the time is 
        11    3:33 p.m.
        12             (Discussion had off the record.)
        13             THE VIDEOGRAPHER:  On the record, the time is 
        14    3:34 p.m.
        15             MR. HART:  Are we back?  
        16             MR. HERNSTADT:  Yes.
        17    BY MR. HART:
        18         Q.  Did you get to complete your answer?
        19         A.  I don't recall.  
        20              THE WITNESS:  Maybe would it make sense for you 
        21    to read it back?
        22             MR. HART:  Let's see what the reporter has.
        23             MR. HERNSTADT:  I'd like to ask the reporter to 
        24    read the last question and answer as far as we got. 
        25             (The record was read by the Reporter.)


         1             MR. HERNSTADT:  Do you have anything more to 
         2    add?
         3             THE WITNESS:  I was going to say something 
         4    else, but now I don't remember what I was going to say. 
         5    I can't remember.  Sorry.
         6    BY MR. HART:
         7         Q.  I was trying to give you a chance to make sure 
         8    you completed your answer.
         9         A.  Yeah.
        10         Q.  And apart from selling a copy of the movie to 
        11    other people, would you still regard it as
        12    impermissible to make the copy of the movie available 
        13    through internet transmission?
        14              MR. HERNSTADT:  Objection, assumes facts not 
        15    in evidence.
        16             Go ahead.
        17             THE WITNESS:  First of all, I think it would be 
        18    almost impossible to do internet transmission.  Let me 
        19    just state that.  These files are much too large.  But --
        20    BY MR. HART:
        21         Q.  How do you know that?
        22         A.  Because I know these are very, very large 
        23    files.  Movies are very large files, and my 
        24    understanding is we currently don't have the bandwidth 
        25    to ship them over the net.


         1             But in terms of shipping them over the net, I 
         2    don't want to sound picky, but it seems to me it would 
         3    depend -- if I were shipping it to myself over the net, 
         4    and if it was my movie, if I was shipping it to another 
         5    computer, for example, it's not clear to me that that 
         6    would be illegal.
         7             If I was posting it on a web site, if this could 
         8    be done, and I don't believe it could be done at this 
         9    point, if I posted it on a web site for people to download 
        10    as they chose, that clearly would be illegal.
        11         Q.  Just assume with me for the moment that that 
        12    was feasible, okay? 
        13         A.  Mm-hmm. 
        14         Q.  And based on that assumption, I come back to this 
        15    long line-drawing question of a moment ago, which is, 
        16    given your testimony that you believe there are some 
        17    permissible uses of DeCSS --
        18         A.  Mm-hmm.
        19         Q.  -- right --
        20         A.  Right.
        21         Q.  -- which justify its proliferation, and on the 
        22    other hand, given the risk that I just described, if you 
        23    assume with me for a moment that it's feasible --  
        24         A.  Right.  
        25         Q.  -- to make an internet transmission, I'm asking 


         1    you how you draw the line, you, Barbara Simons.
         2             MR. HERNSTADT:  Objection.  The question calls 
         3    for speculation.
         4             Go ahead.
         5             THE WITNESS:  Yeah, I mean my sense is, and I'm 
         6    not a lawyer, that copyright law is a bit vague in 
         7    certain areas like fair use and first sale.
         8             I mean for example, if I shipped it over the net 
         9    and destroyed my own copy, if I shipped it to somebody 
        10    else, would that be a first sale?  Would that be a first 
        11    sale, right, where I'm giving my copy to somebody else?  I 
        12    can do that with a book.  I can do that with a videotape 
        13    that I buy.  I can give it to somebody else.  I can do it 
        14    with a DVD.
        15             So if the net is simply the mechanism whereby I 
        16    make that transfer, then I don't think it should be 
        17    illegal.  I think it depends on what copyright law would 
        18    say is legal and not legal.
        19    BY MR. HART:
        20         Q.  But I'm actually asking an easier question.  And 
        21    that is, just envision a situation where the internet 
        22    transmission of DVD movies is plainly inappropriate, 
        23    according to your likes, okay, and I'm asking you if you 
        24    envision that one situation on the one hand and you take 
        25    what you regard as permissible uses of DeCSS on the other, 


         1    I'm asking you as a technologist and policy person in the 
         2    technology area where you, Barbara Simons, draw the line.
         3              MR. HERNSTADT:  Objection to the form of the 
         4    question.  I think it's asking for a different kind of 
         5    opinion.
         6             But if you can answer it, go ahead.
         7             THE WITNESS:  I don't understand about drawing 
         8    a line.  It seems to me the issue is violation of 
         9    copyright.  And copyright can be violated in many 
        10    different ways using many different tools, like using 
        11    Xerox machines.  I don't understand where DeCSS comes 
        12    into play here.
        13             I'm sorry.  I'm not trying to be difficult.  I 
        14    truly don't know.
        15    BY MR. HART:
        16         Q.  No, I understand.  Now, apart from what we've 
        17    covered so far in your deposition and what you've said 
        18    in your declaration, are there any other areas that you 
        19    are prepared to testify on in connection with this case? 
        20             MR. HERNSTADT:  Bill, it might be easier for me 
        21    to answer that question.  I intend to ask her a couple of 
        22    questions, and what you may want to do is if you're done 
        23    with your questions now, I'll reserve time at the end now 
        24    so you can cross her on the questions that I'm going to 
        25    ask her about.


         1             Dr. Simons, as I've told you, is leaving the 
         2    country I think in two days, or actually going to Utah 
         3    and then leaving the country for the remainder of the 
         4    month.  She'll not be testifying at trial.  So this 
         5    testimony is her testimony. 
         6             MR. HART:  Uh-huh.  Let me just ask a couple 
         7    more questions before we do that --
         8             MR. HERNSTADT:  Certainly.
         9             MR. HART:  -- of the witness, not of you.
        10             THE WITNESS:  I thought you were going to say 
        11    that.
        12    BY MR. HART:
        13         Q.  Dr. Simons, when did you first get involved in 
        14    this case?
        15         A.  When I realized I had to write my last 
        16    president's column, and I was trying to decide what to 
        17    write it on, and I finally decided to write it on the DVD 
        18    controversy.  Since this was published in May, the 
        19    deadline was probably sometime in March, so I would say 
        20    somewhere around February, March, something like that. 
        21         Q.   Okay.  And how did you come to file a 
        22    declaration in this case?
        23         A.  Oh, I was approached.
        24         Q.  By?
        25         A.  Moglus is his name, Moglus?


         1             MR. HERNSTADT:  Edwin Moglen.
         2             THE WITNESS:  Edwin Moglen, excuse me.  Edwin 
         3    Moglen, who is one of the people -- he happens to be a 
         4    lawyer, but I'm sure you'll agree lawyers are people, 
         5    too.  I'm getting some laughs here anyway.  He was one of 
         6    the people I had spoken to, in quotation marks --
         7             MR. HART:  Right.
         8             THE WITNESS:  -- about DVD, the whole DVD 
         9    situation, trying to understand it.  And he contacted me 
        10    and said that there would be some interest in having me 
        11    file an affidavit in this case.
        12    BY MR. HART:
        13         Q.  Did Mr. Moglen tell you he had taken a position 
        14    in this case?
        15         A.  No, I don't believe he did.  I have his 
        16    e-mails.  I don't believe he did, actually I printed out 
        17    his e-mails, and I have them.
        18             MR. HERNSTADT:  Gave them to me? 
        19             THE WITNESS:  Yeah.
        20             MR. HERNSTADT:  Bill, apparently Barbara gave 
        21    them to me, so I'll take a peek at them and send them on 
        22    to you, probably.
        23             THE WITNESS:  I don't think he did.
        24    BY MR. HART:
        25         Q.  Did there come a time when you were in 


         1    communications with any of the attorneys of the 
         2    Frankfurt Garbus firm?
         3         A   That's your firm?  Right.
         4             Then Edward contacted me.
         5         Q.  Then when was that?
         6         A.  We've got the e-mail there, do you know?
         7             I have the first e-mail.  If you wait a second, 
         8    I can tell you.
         9             MR. HERNSTADT:  Bill, do you want me to look? 
        10    BY MR. HART:
        11         Q.  Other than looking at the e-mails, do you have 
        12    a recollection?
        13             THE WITNESS:  It's right there.  They're in 
        14    chronological order.  I can do it.
        15             MR. HART:  Are we going to be able to get these 
        16    e-mails?  I'm a little concerned that the witness is 
        17    referring to e-mails you have in your possession and 
        18    you've given your statement earlier, Ed, that you may 
        19    not be turning over all of these.
        20             THE WITNESS:  It was maybe a month ago, a month 
        21    and a half ago, two months.
        22             MS. MILLER:  If I could state for the record just 
        23    so it's absolutely clear, Dr. Simons has not at this 
        24    point, Bill, just so you know, actually looked at the 
        25    stack of e-mails she gave to Mr. Hernstadt today.  If she 


         1    had, we certainly would have asked for Dr. Simons that it 
         2    be marked as an exhibit, as she would have been referring 
         3    to it.
         4             But at this point, Mr. Hernstadt still has the 
         5    stack of e-mails.  He's already noted his prior 
         6    objection and request to be able to review the documents 
         7    that Dr. Simons has turned over at this point to be able 
         8    to determine if there is any privileged material.
         9             But at this point in time, the witness has not 
        10    referred to the e-mails to determine the answer to the 
        11    question you've asked.  
        12    BY MR. HART:
        13         Q.  If we could get your unvarnished answer, 
        14    Barbara, without referring to e-mails about 
        15    approximately when you were contacted by somebody at the 
        16    Frankfurt Garbus firm.
        17         A.  I do have a date for you here.  It's on the 
        18    affidavit that I filed.  And the date on that is April 
        19    27th.  Now, obviously, I was contacted before then.
        20         Q.  Right. 
        21         A.  So I would guess, given the fact that I think 
        22    this whole process didn't last too terribly long, that 
        23    it was early April.  That's my guess.  But we can verify 
        24    that.
        25         Q.  And was this declaration that's been marked as 


         1    Exhibit 2 typed onto Frankfurt Garbus' word processing 
         2    system?
         3         A.  Was it typed onto their word processing system?  
         4    Well you sent it to me, right, so I guess it must have 
         5    been, yes.
         6         Q.  And were you sent some kind of draft that was 
         7    prepared by one of the lawyers at Frankfurt Garbus, or did 
         8    you draft something first and send it to them, or how did 
         9    that work?
        10         A.  There were drafts.
        11         Q.  Sorry?
        12         A.  There were drafts.  
        13         Q.  And who sent the first one?
        14         A.  Edward did.
        15         Q.  I see.  And how long did that take from the 
        16    time you first talked to someone at Frankfurt Garbus and 
        17    the time Edward, as you referred to him, sent you the 
        18    first draft?
        19             THE WITNESS:  Shall I refer to you in some 
        20    other way?
        21             MR. HERNSTADT:  I appreciate that.  You're one 
        22    of the two other people in the world that does.  I like 
        23    it.
        24             THE WITNESS:  I believe the first draft came 
        25    shortly after I was contacted.  Basically, my 


         1    recollection is that it more or less is the article 
         2    entitled "To DVD or Not to DVD" broken up with my C.V. 
         3    sort of stuck on top.
         4    BY MR. HART:
         5         Q.  Gotcha.  So Ed took first cut at doing that, and 
         6    you reviewed it?
         7         A.  Yes.
         8         Q.  And how significantly did you change that draft 
         9    after you reviewed it?
        10         A.  There were a number of changes made.
        11         Q.  There were? 
        12         A.  Mm-hmm.
        13         Q.  Okay.  And do you have copies of the earlier 
        14    drafts?
        15         A.  Edward does.
        16             MR. HART:  I see.  Have those been produced to 
        17    us?
        18             MR. HERNSTADT:  Bill, that's part of the 
        19    e-mails.  Everything was done by e-mail, and so that's 
        20    in there.
        21             MR. HART:  So that's what you're holding in your 
        22    hand, too?
        23             MR. HERNSTADT:  Well, actually it's on the 
        24    table next to me, but I don't really know.  When Barbara 
        25    came, she handed me a stacks of e-mails and said "This 


         1    is what I have."  And I have not had an opportunity to 
         2    look at them.
         3    BY MR. HART:
         4         Q.  So in other words, the answer to the question 
         5    whether they've been produced to me was at first they're 
         6    in the e-mails, but now you're saying you don't know if 
         7    the drafts are in the e-mails.
         8             THE WITNESS:  Oh, no.  The drafts are in the 
         9    e-mails.
        10             MR. HERNSTADT:  I know they're in there, 
        11    because I flipped through and I saw that there were 
        12    drafts in there.
        13             THE WITNESS:  And I can tell you they're there, 
        14    because I just printed them out this morning.  So I know 
        15    they're there.
        16    BY MR. HART:
        17         Q.  Now, when was this trip that you're taking 
        18    scheduled, Dr. Simons?
        19         A.  Oh, I get tired thinking about it.  Tomorrow I'm 
        20    going to Utah, coming back two days later; the next day 
        21    I'm going to Japan, coming back -- I go on the 12th, come 
        22    back on the 16th, go to Helsinki on the 17th and come back 
        23    on the 30th.  And I am not a young kid.  
        24         Q.  My, oh my. 
        25         A.  This is an endurance trip.


         1         Q.  And when was this trip scheduled?
         2         A.  Oh, some time ago.
         3         Q.  Prior to your ever --
         4         A.  Prior to my being -- is this a subpoena that I 
         5    got?  Whatever.  Prior to my receiving a subpoena to 
         6    testify, to give a deposition.
         7         Q.  Was it prior to the time you prepared your 
         8    declaration?
         9         A.  Umm -- no.  Well, I think the -- I mean I 
        10    certainly knew that I was going to be making the Utah 
        11    trip prior to then.  I was thinking about the Japan 
        12    trip, and the Helsinki trip had probably not yet been 
        13    scheduled.  
        14         Q.  When did you first inform Mr. Hernstadt or 
        15    anybody at the Frankfurt Garbus firm that you might be 
        16    unavailable for the trial in this action due to your 
        17    travel plans?
        18         A.  Again, I don't recall, but it was some time ago.
        19         Q.  Some time ago?
        20         A.  Yeah.  In fact they told me I probably wouldn't 
        21    be giving a deposition as a result.
        22         Q.  That you would not be giving a deposition?
        23         A.  At one point I was told I would not be, because 
        24    it wasn't possible given my schedule.
        25         Q.  When did you learn otherwise?


         1         A.  Well, first I got the subpoena saying I would, 
         2    and then I was told that I wouldn't, and then I was told 
         3    that I would again only in the past week, I think.
         4         Q.  Were you told why on again, off again, now back 
         5    on again?
         6         A.  I'm don't remember exactly.  I know a lot of 
         7    the issues had to do with other people's schedules and 
         8    the ability for people to get to places and my being so 
         9    constrained.  
        10         Q.  I'm sorry, your being so what?  
        11         A.  Constrained because of my travels.
        12         Q.  Right, but were you told in words or substance 
        13    why it was decided just recently to put you back into 
        14    the case?
        15         A.  No, except that it could be done today and I 
        16    could make it today.  That's all I knew.     
        17         Q.  And when was that communication made to you?
        18         A.  Within the past week, I think. 
        19         Q.  Was that by Mr. Hernstadt?
        20         A.  Yes.  
        21         Q.  Have you ever talked to Mr. Garbus?
        22         A.  No.  I've never talked to him.  I've tried.
        23         Q.  You tried?
        24         A.  I called him, but he wasn't in.
        25         Q.  Didn't return your call?


         1         A.  Well, I called him -- the time that I called 
         2    him, it was -- no, didn't.
         3         Q.  Yeah, I have that problem sometimes, too.
         4         A.  That was recently.
         5             MR. HERNSTADT:  Objection.
         6             MR. HART:  Just give me a moment here.  I'd like 
         7    to confer with my colleague, Ms. Miller, on the other 
         8    line.  And if you'd just bear with me because of the sort 
         9    of logistics of my being on the phone.
        10             THE WITNESS:  Does that mean I leave?
        11             MR. HART:  No, no, you don't have to leave.
        12             MR. HERNSTADT:  I'd like to go off the record for 
        13    about three minutes.  We'll step out, and you can have a 
        14    private conversation.
        15             MR. HART:  That sounds great.  We're going to 
        16    take a little break right now and go off the record.
        17             THE VIDEOGRAPHER:  Off the record, the time is 
        18    time 3:50 p.m.
        19             (Break taken from 3:50 to 4:01 p.m.) 
        20             THE VIDEOGRAPHER:  On the record, the time is 
        21    4:01 p.m.  Please continue.
        22                  EXAMINATION BY MS. MILLER:  
        23         Q.  Okay.  We're back on the record.
        24             Dr. Simons, I just have a couple of very quick 
        25    questions for you because I know that you're pressed for 


         1    time.  But since Mr. Hart, who is not in this city at the 
         2    moment, hasn't had the opportunity to look at what's been 
         3    marked in your deposition as Exhibit 3, I have, quickly, 
         4    and I have -- excuse me, a couple of questions for you on 
         5    this document. 
         6         A.  Sure.     
         7         Q.  If you could, flip to Page 2 of Exhibit 3.  And 
         8    in Paragraph 2, that is the second full paragraph on 
         9    Page 2, there is a sentence that states, "The main 
        10    function for CSS appears to be to protect a monopoly on 
        11    licensing the player market and to inhibit the 
        12    widespread production of illegal DVDs and noncompliant 
        13    machines."  
        14             Do you see that statement?
        15         A.  Yes, I do.
        16         Q.  Have I read it accurately?
        17         A.  Yes, you have.
        18         Q.  I would like to, first of all, ask you what's 
        19    the basis for that conclusion that the main function for 
        20    CSS is to protect a monopoly on licensing the player 
        21    market. 
        22         A.  That was my opinion after having talked with a 
        23    number of people.  The fact is, it is a monopoly, right, 
        24    because the licensing is done by only one organization.  
        25    So I felt that that was a pretty obvious statement.


         1             I know that the movie industry is concerned 
         2    about widespread illegal copying, and my sense is that 
         3    they had -- that they felt that this might be one way to 
         4    try to prevent that.
         5         Q.  And in your view and based on the opinion that 
         6    you expressed in that statement, do you think that's a 
         7    valid concern that the movie industry has to inhibit the 
         8    widespread production of illegal DVDs?
         9             MR. HERNSTADT:  Objection to the form of the 
        10    question.
        11             THE WITNESS:  I understand their concern, and I 
        12    have some sympathy for them for having that concern.  I 
        13    don't see how they can protect, prevent that from 
        14    happening, because one can make -- one can establish a 
        15    factory, as I have heard, and I don't have any firsthand 
        16    knowledge of this, but I've heard has been done in some 
        17    Asian countries or one Asian country to just make mass, 
        18    mass market duplicates, make large number of duplicates 
        19    of the encrypted DVDs, which would be widespread 
        20    copying.  And I don't see how this approach could 
        21    protect against that. 
        22    BY MS. MILLER:
        23         Q.  But that's certainly one form of illegal 
        24    copying that you've just described there. 
        25         A.  Right.


         1         Q.  It's not your opinion that CSS was intended to 
         2    protect against that form of copying of DVDs; is that 
         3    correct?
         4             MR. HERNSTADT:  Objection to the form.  I think 
         5    that's exactly what she just said.
         6             MS. MILLER:  That's what I was asking her to 
         7    confirm.
         8             THE WITNESS:  I don't think that CSS can 
         9    prevent it.
        10    BY MS. MILLER:
        11         Q.  But CSS can prevent other forms of illegal 
        12    copying; is that correct?
        13         A.  CSS can't prevent much of anything, as I can 
        14    see.  I think it's awfully weak.  That may have been the 
        15    intent, but I don't see that it does much.  It's too 
        16    weak.
        17         Q.  But apart from the members of the Linux 
        18    community or people that you've just testified about 
        19    that you've heard that have cracked CSS --
        20         A.  Mm-hmm.
        21         Q.  -- would you agree that CSS protects against 
        22    illegal copying by the average consumer that might not 
        23    be technically proficient?
        24             MR. HERNSTADT:  Objection to the form.  I think 
        25    that's extremely vague.


         1             THE WITNESS:  Yeah.  I think it's vague, too, 
         2    in the sense that there are many ways of making 
         3    copying.  I mean the average consumer knows how to copy 
         4    records onto tapes.
         5             I don't know how difficult it might be in the 
         6    future to copy the output, the analog output, for 
         7    example, make copies of that off of a computer by an 
         8    average person.
         9    BY MS. MILLER:
        10         Q.  So you just don't know how difficult that is?
        11         A.  No.  I don't know.   
        12         Q.  In Paragraph 3 still on Page 2 of Exhibit 2 
        13    (sic), there is a statement where you say, "What would 
        14    have happened had the DVD CCA licensed all Linux and other 
        15    free/open-source operating systems, or eliminated the 
        16    licensing requirement altogether?" 
        17             Do you see that statement?
        18         A.  Oh, yes.  Right.    
        19         Q.  Now, in that statement, you seem to imply that 
        20    the DVD CCA hasn't licensed any Linux development 
        21    efforts for DVD players.
        22         A.  Mm-hmm.    
        23         Q.  What's the basis for that assumption?
        24         A.  That was my understanding at the time I wrote 
        25    the article.  


         1         Q.  And that would have been in April of this year?
         2         A.  March, something like that.
         3         Q.  March of this year?
         4         A.  February, March, because there is a long window 
         5    between when it gets written and when it gets 
         6    published.  Probably February.  Again, I could get that 
         7    information for you.  I just don't recall.
         8         Q.  But you wrote your declaration in --
         9         A.  April.
        10         Q.  -- April of this year?
        11         A.  Mm-hmm.
        12         Q.  And in your declaration, you indicated that you 
        13    were aware that LSDVD or that development project for a 
        14    Linux-based DVD player was pursuing a license with the 
        15    DVD CCA?
        16         A.  Yes.  
        17         Q.  So in making this statement in Exhibit 2, 
        18    you're not indicating any knowledge one way or the other 
        19    whether or not the DVD CCA has refused to issue licenses 
        20    to Linux developers, correct?  
        21             MR. HERNSTADT:  I think that is a misleading 
        22    question.
        23             But if you can answer it, go ahead.
        24             I object to it on that ground.
        25             THE WITNESS:  Has refused to license, is your 


         1    question?
         2    BY MS. MILLER:
         3         Q.  Correct.   
         4         A.  My understanding is that they would refuse to 
         5    license if the other party refused to sign a 
         6    nondisclosure agreement or refused to sign the type of 
         7    secrecy or nondisclosure agreement that they required 
         8    and that obviously, the Linux group that was working 
         9    with them must have agreed to sign it.  That's all I 
        10    know.
        11         Q.  And what's that understanding based on?
        12         A.  Talking to people.  As I say, I mentioned 
        13    earlier, there is this dichotomy in the Linux 
        14    community.  Some people felt they shouldn't compromise 
        15    and sign an agreement which was contrary to the whole 
        16    philosophy of the Linux open-source, free-source, 
        17    open-software, free-software movement and then others 
        18    who felt that they were willing to make such a 
        19    compromise.
        20             But I don't refer to that in this article, I 
        21    don't believe.
        22         Q.  Fair enough.
        23         A.  Basically -- let me just expand on this.  What I 
        24    was saying, I believe, is that the DVD CCA was unwilling 
        25    to license Linux on the terms -- on the standard terms 


         1    that the Linux community understands.  So therefore, some 
         2    people were willing to compromise and try to go with the 
         3    DVD CCA rules, and others were not.     
         4         Q.  Okay, and for those that were willing to, as 
         5    you put it, go along with the DVD CCA rules --
         6         A.  Yes.
         7         Q.  -- as you understand it --
         8         A.  Yes.
         9         Q.  -- they were issued licenses?
        10         A.  I don't know.   
        11         Q.  But you certainly don't mean to imply that the 
        12    DVD CCA will not issue a license to anyone that's 
        13    developing a Linux-based DVD player.
        14             MR. HERNSTADT:  Objection to form.
        15             Go ahead.
        16             THE WITNESS:  I mean to imply that they would 
        17    not issue a license to anyone developing a Linux DVD 
        18    player who adhered to the rules of Linux, which is open 
        19    sources.
        20    BY MS. MILLER:
        21         Q.  So in other words, who refused to sign a 
        22    nondisclosure agreement?
        23         A.  Because it would not allow them to do open 
        24    source.
        25         Q.  Okay.  Thank you.


         1             The last question I have in this document in 
         2    that same paragraph, Paragraph 3, that is, there is a 
         3    statement, quote -- I believe it's the next sentence, 
         4    "Surely the risk of illegal copying DVDs would not be 
         5    any greater than it is now with DeCSS widely available."
         6         A.  Correct.  Mm-hmm.
         7         Q.  By that statement, do you mean to imply that 
         8    the wide availability of DeCSS increases the risk of 
         9    illegal copying of DVDs?
        10         A.  It might.
        11         Q.  Does it present a risk of illegal copying of 
        12    DVDs?
        13         A.  I think it's relatively minor compared to the 
        14    risks that are presented by the whole technology.
        15         Q.  A relatively minor risk is still a risk, is it 
        16    not?
        17         A.  Sure.
        18             MS. MILLER:  Thank you very much.  That's all I 
        19    have, Dr. Simons.
        20             MR. HERNSTADT:  Bill, are you still with us?
        21             MR. HART:  Yep.
        22             MR. HERNSTADT:  I'm going ask a couple 
        23    questions now.  Are you -- I just want to make sure 
        24    you're done too, for now.
        25             MR. HART:  Subject to all the usual caveats, 


         1    objections, reservations.
         2             MR. HERNSTADT:  Not to mention stamping of feet 
         3    and pulling of hair.
         4             MR. HART:  I'm sorry, what?
         5             MR. HERNSTADT:  It was a joke, Bill.
         6                 EXAMINATION BY MR. HERNSTADT:
         7             Q.   Dr. Simons, I just want to -- following up 
         8    on the last questions that were asked of you, you've 
         9    been asked a couple of questions as to -- about 
        10    balancing risk.  Could you tell me what you think the 
        11    risk is posed by the CSS system or scheme?
        12             MS. MILLER:  Objection.  Vague.
        13             MR. HERNSTADT:  If you understand the question.
        14             THE WITNESS:  I don't.
        15    BY MR. HERNSTADT:
        16         Q.  Okay.  You were asked -- the last question, I 
        17    think that Ms. Miller asked you is that there is a risk of 
        18    illegal copying, and you said that you thought that that 
        19    was -- you compared it to some other risk.  Could you 
        20    explain what that other risk is?
        21         A.  Well, my sense is that the major risk for the 
        22    movie industry is mass-produced illegal copies that can 
        23    be made by simply copying the entire DVD, encrypted 
        24    version of the DVD in mass, en masse and selling them 
        25    for less than what the movie industry sells them for.  I 


         1    think that's the major risk.
         2             I think that the level of risk created by  
         3    people decrypting and then sending or doing something 
         4    with these decrypted copies is relatively minor by 
         5    comparison.
         6         Q.  Do you see a risk to the public or to 
         7    scientists if the DMCA is understood to mean that 
         8    something like DeCSS cannot be posted at all?
         9         A.  I see it --
        10             MS. MILLER:  Objection to form.
        11             THE WITNESS:  Sorry.
        12             MR. HERNSTADT:  You can answer.
        13             THE WITNESS:  I see a risk -- I see a risk to 
        14    prohibiting the publication of software, and I also see 
        15    a risk to -- and I'm not sure if this is actually your 
        16    question, but I also see a risk to making it difficult 
        17    for the normal person, for most people to exercise their 
        18    fair use rights.  Those are the two risks I see.
        19    BY MR. HERNSTADT:
        20         Q.  Can you explain that second risk?
        21         A.  The fair use?
        22         Q.  Yes.   
        23         A.  One problem -- a problem with having some sort 
        24    of technological control of intellectual property, such 
        25    as CSS or any kind of encryption, is that one can't get 


         1    in and make a copy of the piece of it, typically.  
         2    Certainly, you can't do that with DVDs unless you've 
         3    somehow encrypted them first.
         4             Now, if the technological community has access 
         5    to something like DeCSS because it's all over the place, 
         6    I mean you really can get it trivially, and know how to 
         7    do this, then we can, we the technology community, I 
         8    haven't done this so I'm saying "we" in the generic 
         9    sense, can decrypt a DVD and take out a piece to use, for 
        10    example, in a presentation, a digital version as opposed 
        11    to analog.
        12             This is a right that the nontechnical community 
        13    will not have, because they don't have the expertise to 
        14    do it and because the technical community is prevented, 
        15    if this effort succeeds, from making that knowledge 
        16    commonly available.    
        17         Q.  Taking a large step to the side, could you -- 
        18    and I am fortunately going to ask you to be brief about 
        19    this, although that's going to be difficult --          
        20             MR. HART:  Ed, could you speak up?  I'm sorry.
        21    BY MR. HERNSTADT:  
        22         Q.  Could you tell me how long you have been a 
        23    computer scientist?
        24         A.  Um --
        25         Q.  And start with getting into it and going through 


         1    your career.
         2         A.  I went back to school in 1971 at  the age of 30, 
         3    so that will tell you how old I am, and started taking -- 
         4    took one CS and one math course a semester for a couple of 
         5    years, because I had small children, and then eventually 
         6    started taking graduate courses and eventually applied to 
         7    graduate school and eventually transferred to Berkeley 
         8    and this and that and ended up getting a Ph.D. in 1981, 
         9    although I started working at IBM in 1980.  And I've been 
        10    sort of at it ever since. 
        11         Q.  Over the course of your career, what have been 
        12    your areas of focus or expertise?
        13         A.  My background really is theory, which is more the 
        14    mathematical end of things, working on algorithms in 
        15    particular.  So I started off, my dissertation was in 
        16    scheduling theory.  I've also worked on compiler 
        17    optimization, fault tolerant distributed computing, and 
        18    communicating sequential processes.  Those are the main 
        19    areas I've worked in, technical.
        20         Q.  Okay.  Are you familiar with programming 
        21    languages as a result of your work in computing 
        22    sciences --
        23         A.  Yes.
        24         Q.  -- computer sciences?
        25             Could you tell us what source code is?


         1         A.  Source code typically refers to the language in 
         2    which a program is written, the actual program written 
         3    in some high-level language.
         4         Q.  For example, what?
         5         A.  C, Fortran, ALGOL, List, PL/1.
         6         Q.  And what is object code?
         7         A.  Object code is -- object code tends to be what 
         8    the source code is translated into.
         9             This is a little bit tricky, because you can, for 
        10    example -- I'm not speaking what my compiler optimization 
        11    had on it -- you can translate the source code in 
        12    something which you might refer to as object code or 
        13    intermediate code, there are many different names for it, 
        14    which is not aimed at a particular machine.  So it's sort 
        15    of a generic machine.  For example, you might assume an 
        16    unbounded number of registers.  Every machine has a finite 
        17    number of registers.  There are other assumptions you 
        18    might make.
        19             You might do various things to this, and then 
        20    at some point you might translate it again such that it 
        21    actually maps onto a specific machine.
        22             One of the projects I worked on when I was 
        23    doing compiler optimization was developing what's called 
        24    a back end for a compiler which would produce relative 
        25    generic code and then mapping that generic code onto 


         1    various specific processors.
         2             I don't know if I've answered your question.  The 
         3    point is that object code -- you tend to think of object 
         4    code as being the final output with the thing that -- that 
         5    the computer actually runs, but it's not a hard-and-fast 
         6    definition.  It's not like we have a mathematical 
         7    definition of object code like we might have of some 
         8    precise notion.  It a little bit depends on what you're 
         9    doing with it and what your model is.
        10         Q.  Do you believe that source code is expressive?
        11         A.  Well, of course.
        12             MS. MILLER:  Object to form. 
        13    BY MR. HERNSTADT:         
        14         Q.  Do you think that object code is expressive?
        15         A.  Certainly.
        16             MS. MILLER:  Object to form.
        17             THE WITNESS:  Did you get my answers?  
        18             THE REPORTER:  No.
        19             THE WITNESS:  I think the first one was "yes," 
        20    and the second one was "certainly." 
        21             MR. HERNSTADT:  I'm going to stop right there.
        22             THE WITNESS:  You are?
        23             MR. HERNSTADT:  Yes.  I'm going to stop right 
        24    there.  I think that's good.
        25             Bill, do you have any questions?  Carla?


         1             MR. HART:  Yeah, we have a couple, I think.  
         2    But I need to speak to Carla privately for just five 
         3    minutes to prepare notes and wrap it up.
         4             MS. MILLER:  Off the record.
         5             THE VIDEOGRAPHER:  Off the record, the time is 
         6    4:19 p.m.
         7             (Break taken from 4:19 to 4:22 p.m.)
         8             THE VIDEOGRAPHER:  On the record, the time is 
         9    4:22 p.m.  Please continue.
        10             MR. HERNSTADT:  Okay.    
        11    BY MR. HERNSTADT:
        12         Q.  Dr. Simons, a final question.  You, I think, 
        13    testified that you've just completed your term as 
        14    president of the ACM.  Could you tell us in a little more 
        15    detail what the ACM is?
        16         A.  Well, ACM is the oldest and largest scientific 
        17    and educational society of computer professionals in the 
        18    world.  We're over 50 years old.  And it's the premier 
        19    society for computer scientists.  We have a large 
        20    library of technical journals.  We run conferences, 
        21    meetings.
        22             It's actually been quite an honor to be ACM 
        23    president.  It's been terrific.
        24         Q.  And you've just concluded your two-year term.
        25         A.  Yes.


         1         Q.  What are you doing now?
         2         A.  What am I doing now?
         3         Q.  Yeah.  
         4         A.  I'm at this deposition.
         5             Well, I'm past president for the next two 
         6    years, and I'll continue, for example, being on the 
         7    president's export council subcommittee on encryption.  
         8    It's a catchy name.  This is a committee that advises -- 
         9    well, it advises the president's export council on the 
        10    subject of encryption, and the president's export 
        11    council advises president.  And we have meetings once 
        12    every couple months in the Department of Commerce 
        13    building.  And Undersecretary Reich is usually there.
        14             I'm also going to be continuing my technology 
        15    policy work.  I'll be teaching a course on policy at 
        16    Stanford in the spring.
        17             What else am I doing.  I don't know.  I seem 
        18    awfully busy.
        19         Q.  And a final question:  Do you, for the purposes 
        20    of testifying, adopt everything in your declaration as 
        21    being true?
        22         A.  Yes.
        23             MR. HERNSTADT:  I have no further questions.  
        24    thank you very much, Dr. Simons.
        25             MR. HART:  I just have a few more, Dr. Simons, 


         1    in light of what Mr. Hernstadt just did.
         2               FURTHER EXAMINATION BY MR. HART:
         3         Q.  You mentioned in response to one of 
         4    Mr. Hernstadt's questions that there were certain things 
         5    that circumvention technology effectively prevented. 
         6         A.  Uh-huh.  Yes.
         7         Q.  Right?
         8         A.  Yes.  
         9         Q.  And my question is, where does that leave you in 
        10    terms of the existence of laws against circumvention?
        11         A.  I think that they're a bad idea.  They can 
        12    prevent people from reverse engineering software to 
        13    eliminate bugs and viruses.  They can prevent people 
        14    from posting problems about software on the net so that 
        15    others can correct those problems.  They can prevent 
        16    people doing computer security R&D from using a lot of 
        17    their tools which frequently involve trying to break 
        18    into systems.
        19             The fact is that we can't prove the correctness 
        20    of computer systems.  All we can do -- I mean what 
        21    people do is they try to break them.  When they succeed, 
        22    then they've found a vulnerability which then gets 
        23    patched.
        24             I'm not talking about people who have tried to 
        25    break them for criminal reasons.  I'm talking about 


         1    people who break them because they want them to be 
         2    secure.  And this frequently involves circumvention.
         3             Many of these tools, which are standard tools, 
         4    they need to be taught to students who will continue to 
         5    do computer security work in the future.
         6             And again, I'm not a lawyer, but it seems to me 
         7    that one danger is you could read the DMCA as preventing 
         8    some of this kind of activity, which I think would be a 
         9    disaster.
        10         Q.  Are you being paid in any way for your time or 
        11    testimony?
        12         A.  I got a check for $62 from you.
        13         Q.  Other than that check from me, are you being 
        14    paid for your time or testimony by the defendant?
        15         A.  I am not being paid.
        16         Q.  Okay.  Is it a fair statement to say that one 
        17    of your motivations for taking a position in this case 
        18    is your views generally about circumvention law and the 
        19    DMCA in particular?
        20         A.  Yes, I think that's a fair statement.
        21         Q.  Now, Mr. Hernstadt had asked you a couple of 
        22    questions about source code and object code, and I don't 
        23    want to go back over all of that.  I just want to ask 
        24    you I think one simple question, and that is, is it fair 
        25    to say that source code can be easily converted into an 


         1    executable utility through the use of a compiler?
         2         A.  That's the purpose of the compiler, yes.
         3              MR. HART:  I don't have anything further for 
         4    you.  I thank you both for your patience with us and for 
         5    your time and your -- actually for three things, and 
         6    your candor.
         7             THE WITNESS:  Thank you.  This has not been 
         8    nearly as bad as I thought it would be.
         9             MR. HART:  See you on the tape. Thanks again.
        10             MR. HERNSTADT:  Let's go off the record.
        11             THE VIDEOGRAPHER:  Off the record, the time is 
        12    4:28 p.m.
        13             (Discussion had off the record.)
        14             THE VIDEOGRAPHER:  This concludes today's 
        15    deposition of Barbara Simons on July 8th, 2000.  The 
        16    total number of tapes used is two (sic).  The master 
        17    videotapes of today's deposition will remain in the 
        18    custody of McMahon & Associates.  Off the record, the 
        19    time is 4:29 p.m.
        21              (Time noted 4:29 p.m.)


         2                        ______________________________
         3                                 BARBARA SIMONS, Ph.D.
         9    Subscribed and sworn to before me
        10    this__________ day of__________________, 2000
        11    _____________________________________________
        12    Notary Public in and for the State of
        13    California, County of Santa Clara