David S. Touretzky Deposition, in MPAA v. 2600

PA; July 13, 2000

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

          1                  UNITED STATES DISTRICT COURT
                            SOUTHERN DISTRICT OF NEW YORK
                                       - - - -
              UNIVERSAL CITY STUDIOS, INC.,   )
          5   INC., TRISTAR PICTURES, INC.,   )
              CO., L.P., DISNEY ENTERPRISES,  )
          7   INC., and TWENTIETH CENTURY FOX )
              FILM CORPORATION,               )
          8                                   )
                                  Plaintiffs, )
          9                                   )
                   -vs-                       ) Civ. No. 0277 (LAK)
         10                                   )
              ERIC CORLEY a/k/a "EMMANUEL     )
         11   GOLDSTEIN" and 2600             )
              ENTERPRISES, INC.,              )
         12                                   )
                                  Defendants. )
         14                            - - - -
         15             DEPOSITION OF:  DR. DAVID S. TOURETZKY
         16                            - - - -
                         DATE:         July 13, 2000
         18                            Thursday, 1:15 p.m.
                        PLACE:         DeFOREST & KOSCELNIK
         20                            3000 Koppers Building
                                       Pittsburgh, PA  15219
         22          TAKEN BY:         Plaintiffs
                  REPORTED BY:         Edna Loudenslager, RPR
         24                            Notary Public


          1             DEPOSITION OF DR. DAVID S. TOURETZKY,
              a witness, called by the Plaintiffs for examination, in
          2   accordance with the Federal Rules of Civil Procedure,
              taken by and before Edna Loudenslager, RPR, a Court
          3   Reporter and Notary Public in and for the Commonwealth of
              Pennsylvania, at the offices of DeForest & Koscelnik, 3000
          4   Koppers Building, Pittsburgh, Pennsylvania, on Thursday,
              July 13, 2000, commencing at 1:15 p.m.
                                       - - - -
                    FOR THE PLAINTIFFS:
          8   Michael T. Mervis, Esq. (via telephone)
              PROSKAUER ROSE
          9   1585 Broadway
              New York, NY  10036-8299
         10   (212) 969-3000
         12         FOR THE DEFENDANTS:
              David Y. Atlas, Esq. (via telephone)
              488 Madison Avenue
         14   New York, NY  10022
              (212) 980-0120
         18   Walter P. DeForest, Esq.
              DeFOREST & KOSCELNIK
         19   3000 Koppers Building
              Pittsburgh, PA  15219
         20   (412) 227-3101
         22         ALSO PRESENT:
              Nathanial Dorfman


          1                         * I N D E X *
          2   Examination by Mr. Mervis  - - - - - - - - - - - -    4
              Examination by Mr. Atlas - - - - - - - - - - - - -   60
          3   Re-Examination by Mr. Mervis - - - - - - - - - - -   66
          4   Certificate of Court Reporter  - - - - - - - - - -   69
              Errata Sheet - - - - - - - - - - - - - - - - - - -   70
          6                     * INDEX OF EXHIBITS *
          7   Deposition Exhibit 1 - - - - - - - - - - - - - - -   25
              Deposition Exhibit 2 - - - - - - - - - - - - - - -   52
          8   Deposition Exhibit 3 - - - - - - - - - - - - - - -   59


          1                    DR. DAVID S. TOURETZKY,
          2                    being first duly sworn,
          3             was examined and testified as follows:
          4                            - - - -
          5                          EXAMINATION
          6                            - - - -
          7   BY MR. MERVIS:
          8   Q.    This is Michael Mervis speaking.  Good afternoon,
          9         Dr. Touretzky.
         10                   Is Doctor the preferred way you like to be
         11         addressed?
         12   A.    That's fine.
         13   Q.    Let me put on the record a housekeeping matter,
         14         because we're doing this by telephone.  Let me thank
         15         both you and Mr. DeForest for letting us do this by
         16         phone.
         17                   MR. DeFOREST:  Sure.
         18   BY MR. MERVIS:
         19   Q.    I'm sure that it would have been a nice visit to
         20         Pittsburgh, but it's a lovely day here in New York.
         21                   There will be a couple documents,
         22         Dr. Touretzky, that I'll be asking you to refer to,
         23         and I'm hoping that you have them with you.  One is
         24         the declaration that you signed in this action,
         25         dated April 27th of 2000.


          1   A.    Yes, I have that here.
          2   Q.    You have the attachment to that, the Exhibit B to
          3         that, as well?
          4   A.    Would that be the Gallery of CSS Descramblers?
          5   Q.    Yes, sir.
          6   A.    Yes, I have that here as well.
          7   Q.    Okay.  I would anticipate asking you some brief
          8         questions about one other document, which you may
          9         not have, which is a -- I got this from your Web
         10         site, but it's a copy of a letter that you wrote to
         11         the editor of the Tartan, which I take it is a
         12         campus publication.  The date of it -- I'm not sure
         13         I have a date here, but it's regarding DeCSS and
         14         DVDs.
         15                   Do you know which letter I'm referring to?
         16   A.    Yes, I do.  I'm not sure if I have a copy of that or
         17         not.
         18                   MR. ATLAS:  This is Mr. Atlas.  I don't
         19         have a copy of that.  Maybe if there's a way to
         20         access it --
         21                   MR. MERVIS:  Well, there are two things we
         22         can do.  I mean, it is on the site, although I'm not
         23         sure that makes -- I will save it till the end of
         24         the examination.  Maybe I can fax it off to both of
         25         you right now.


          1                   MR. DeFOREST:  Yes.  This is Walter
          2         DeForest, Mr. Mervis.  And I should note I'm here --
          3         we should note on the record I believe Mr. Atlas is
          4         representing Dr. Touretzky in regard to his
          5         involvement in the pending litigation.  I'm here
          6         only representing Dr. Touretzky in regard to any
          7         matters relating to him as a faculty member of
          8         Carnegie Mellon University and, also, I'll be
          9         representing the University in that regard, if, in
         10         the unlikely event, any subjects like that came up.
         11         But you could fax it to my fax number, which I'll
         12         give you.
         13                   MR. MERVIS:  Okay.
         14                   MR. DeFOREST:  And if you wanted to do
         15         that, maybe give it to somebody to do now and
         16         I'll --
         17                   MR. MERVIS:  I'll give it to my secretary,
         18         who I had stand by just in case this -- I thought
         19         this might happen.
         20                   MR. DeFOREST:  Yes.
         21                   MR. ATLAS:  And I'll probably need to just
         22         take a break and run to the fax room to get it.
         23                   MR. MERVIS:  That's fine.  That's fine.
         24         As I said, I'll save this till the end of the
         25         examination.  Although I'm going to try to do this


          1         relatively quickly, it will probably certainly be
          2         enough time to have it faxed.
          5                     CONFIDENTIAL
         12                   MR. MERVIS:  Okay.  If I can put you on
         13         hold for just a minute, then we'll get started.
         14                            - - - -
         15         (There was a brief pause in the proceedings.)
         16                            - - - -
         17   BY MR. MERVIS:
         18   Q.    This is Mr. Mervis, and I'm back and I thank you for
         19         your patience.
         20                   MR. DeFOREST:  Mr. Mervis, this is Walter
         21         DeForest.  It's just my practice to let everybody
         22         know who's in the room on a telephone deposition.
         23         The only people here would be the reporter,
         24         Dr. Touretzky and me, and I have a young man who's
         25         going into his second year at Harvard Law School.


          1         He's with me in the summer and wanted to see a
          2         deposition.  So his name is Nathanial Dorfman.
          3                   MR. MERVIS:  Okay.  Well, welcome,
          4         Mr. Dorfman.  I'm sorry you can't actually see us.
          5                   MR. ATLAS:  Now we have to behave, I
          6         suppose.
          7                   MR. MERVIS:  Well, I think we had planned
          8         to.
          9                   Just in keeping with that comment, it's
         10         possible that I may be joined for a few minutes by
         11         one of my colleagues, whose name is Carla Miller.
         12                   MR. DeFOREST:  Sure.
         13                   MR. MERVIS:  If that happens, I'll put you
         14         on the speaker phone, and I'll let you know when she
         15         comes in.
         16                   MR. DeFOREST:  Yes, sir.
         17   BY MR. MERVIS:
         18   Q.    Dr. Touretzky, let me ask you this, sir:  When was
         19         the first time that you ever spoke to any of the
         20         attorneys who are representing the defendants in
         21         this case?
         22   A.    I spoke with Robin Gross back around -- I think
         23         February of this year.  I'm not certain of the date.
         24   Q.    And did you speak with her about this case?
         25   A.    Yes.  This or the California case.  I think both.


          1   Q.    Was that a telephone conversation?
          2   A.    There was both e-mail and telephone.
          3   Q.    I see.  About how many telephone conversations did
          4         you have with Ms. Gross about this case?  And if you
          5         can't exclude this case and the California case,
          6         that's fine.  Well, let me restate it.
          7                   About how many conversations by phone did
          8         you have with Ms. Gross about either this case or
          9         the California case?
         10   A.    I think somewhere around four.
         11   Q.    Did you take any notes or make any record of any of
         12         these conversations?
         13   A.    I'm not certain.
         14   Q.    Sitting here today -- or I should say sitting in
         15         Pittsburgh today, what do you recall about what was
         16         said during any of these conversations?
         17   A.    Well, one thing that was said was that EFF would
         18         represent me if I became a defendant.  And given
         19         that, that's my understanding.  I don't think I want
         20         to go into anything else that was said.
         21   Q.    Well, let me just explore that for a minute.
         22                   Is it correct, then, Dr. Touretzky, that
         23         the remainder of the conversation that you had with
         24         Ms. Gross concerned your potential involvement as a
         25         litigant in this lawsuit?


          1                   MR. ATLAS:  This is Mr. Atlas.  I'm going
          2         to raise an objection.
          3                   To the extent, Dr. Touretzky, you
          4         consulted Ms. Gross in connection with the possible
          5         attorney/client relationship between the two of you,
          6         then I would instruct you not to answer that
          7         question concerning the subject of any discussions
          8         you may have had with her.
          9   A.    I considered the entirety of our conversation to be
         10         at least related to the potential of my being a
         11         defendant.
         12   BY MR. MERVIS:
         13   Q.    Okay.  And is there any part of any of these
         14         conversations that you can separate out from that
         15         possibility as opposed to acting as either a
         16         consultant or a testifying witness in either this
         17         litigation or the California litigation?
         18   A.    I don't believe that I can separate those.
         19   Q.    Do you recall -- I take it -- do you have any of the
         20         e-mail correspondence that you referred to with you
         21         today?
         22   A.    Not with me.
         23   Q.    Do you have any recollection of what was in those
         24         correspondences?  And I -- well, that's the
         25         question.


          1                   MR. ATLAS:  This is Mr. Atlas.  Kind of
          2         the same objection.  To the extent you're
          3         corresponding with Ms. Gross in connection with an
          4         attorney/client relationship with respect to any
          5         potential action against Dr. Touretzky, then I would
          6         instruct the witness to not reveal the substance of
          7         those communications.
          8                   MR. MERVIS:  Okay.  That's fine.  The
          9         question was -- the set-up question was whether
         10         Dr. Touretzky recalled any of the --
         11                   MR. ATLAS:  Right.  I understand the
         12         content.  It calls for a yes or no answer.
         13                   MR. MERVIS:  Right.
         14   A.    I think I've been instructed not to answer.
         15                   MR. ATLAS:  You can answer yes or no as to
         16         whether you recall the content.  If the answer is
         17         no, then he'll just move on.  If the answer is yes,
         18         then at that point I will instruct you not to
         19         disclose the substance of those communications.
         20                   THE WITNESS:  Okay.
         21   A.    I recall at least some of the content.
         22   BY MR. MERVIS:
         23   Q.    And can you tell me what you recall?
         24                   MR. ATLAS:  Okay.  At this point, this is
         25         Mr. Atlas, I'll instruct the witness not to answer.


          1         To the extent it dealt specifically with whether --
          2         dealt specifically with a potential attorney/client
          3         relationship between Dr. Touretzky and an attorney,
          4         if you can separate out any matters relating to the
          5         possibility of you acting as an expert or a witness
          6         in the case, you may do so.  But if you can't, then
          7         I instruct you not to answer.
          8   A.    Everything that I can recall was related to the
          9         possibility of my being a defendant, with the
         10         exception of at one point Ms. Gross did give me
         11         Mr. Garbus's phone number.
         12   BY MR. MERVIS:
         13   Q.    I see.  All right.  Is it fair to say that at some
         14         point you had a conversation with Mr. Garbus?
         15   A.    Yes.
         16   Q.    Do you recall when that was?
         17   A.    I think it was in March.
         18   Q.    And did you have any other type of communication
         19         with Mr. Garbus before you had that telephone
         20         conversation in March?
         21   A.    No.  I believe the phone call was the first
         22         communication.
         23   Q.    And were just you and Mr. Garbus participants on
         24         that phone call?
         25   A.    Yes.


          1   Q.    About how long did the call last?
          2   A.    I think it was pretty brief.  Maybe -- I'm
          3         uncertain.  Maybe five minutes, ten minutes at most.
          4   Q.    And did you make any notes during the course of that
          5         telephone conversation?
          6   A.    No.
          7   Q.    Have you, at any time, made any kind of record of
          8         what was said during that conversation?
          9                   MR. ATLAS:  Mr. Atlas.  Objection as to
         10         form.
         11                   Go ahead, you can answer.
         12   A.    I don't believe there was a record.  Not of that
         13         initial conversation, no.
         14   BY MR. MERVIS:
         15   Q.    Dr. Touretzky, could you tell me what was said
         16         during this initial March telephone conversation
         17         with Mr. Garbus?
         18                   MR. ATLAS:  This is Mr. Atlas.  Again, I
         19         just -- because I'm not aware of the substance of
         20         these conversations, I just want to instruct the
         21         witness -- to the extent it dealt with a possible
         22         attorney/client relationship between Mr. Garbus or
         23         the Frankfurt Garbus firm and Dr. Touretzky, I'd
         24         instruct the witness to not answer that.
         25                   To the extent that it dealt with his


          1         matters in connection with this lawsuit and in
          2         connection with him being a testifying witness, an
          3         expert for the defense, then he certainly may
          4         testify about that.
          5   A.    Okay.  I believe that in that first conversation I
          6         referred Mr. Garbus to the Gallery of CSS
          7         Descramblers that I had prepared.  And you have that
          8         in front of you.  It's Attachment B to my
          9         declaration.
         10   BY MR. MERVIS:
         11   Q.    All right.  And do you recall -- was there any
         12         conversation as to why you thought Mr. Garbus should
         13         take a look at that Gallery?
         14   A.    I thought the Gallery made an effective argument
         15         that computer code is expressive speech and can't be
         16         distinguished from other forms of expressive speech.
         17   Q.    Do you recall anything else that was said by either
         18         you or Mr. Garbus during this March telephone
         19         conversation?
         20   A.    Nothing that I don't believe is covered by
         21         attorney/client privilege.
         22   Q.    And when you say attorney/client privilege, do you
         23         mean to say that the rest of the discussion that you
         24         recall, in any event, focused around the Garbus
         25         firm's possible representation of you as a litigant


          1         in some lawsuit or potential lawsuit?
          2   A.    I don't recall many details, but I have discussed
          3         with Mr. Garbus his representation of me.  And I
          4         believe that --
          5                   MR. ATLAS:  This is Mr. Atlas.  To the
          6         extent the witness -- I'll allow the witness to
          7         answer questions as it pertains to any conversations
          8         with any attorneys, whether at this firm or
          9         otherwise, regarding his participation as an expert
         10         in this action.
         11                   And, Dr. Touretzky, to the extent you can
         12         parse it out, you should answer those questions.  To
         13         the extent any of your conversations dealt with any
         14         other matters of an attorney/client nature, then I
         15         would instruct you to not answer those questions.
         16                   THE WITNESS:  I understand.
         17                   MR. ATLAS:  Okay.
         18                   MR. MERVIS:  And this is Mr. Mervis.  I,
         19         basically, think that's a perfectly fine
         20         instruction.  I'm not sure that the last question I
         21         asked would intrude on that instruction, so if I
         22         could ask Edna to read it back to the witness.
         23                   MR. ATLAS:  This is Mr. Atlas.  I don't
         24         know, either, but I just wanted to give the
         25         instruction so that the doctor was clear on what he


          1         should and should not testify about.
          2                   MR. MERVIS:  Okay.  This is Mr. Mervis.
          3                   Edna, could you read back my last pending
          4         question?
          5                   THE COURT REPORTER:  Sure.
          6                            - - - -
          7          (The record was read back by the Reporter.)
          8                            - - - -
          9                   MR. ATLAS:  This is Mr. Atlas.  Just
         10         objection as to form.
         11                   Go ahead, you can answer sort of along the
         12         lines that I've laid out.
         13   A.    As best I can recall, other than discussing the
         14         Gallery, any other parts of the conversation would
         15         have involved my possibly being a defendant and my
         16         relationship with the Garbus law firm.
         17   BY MR. MERVIS:
         18   Q.    Okay, thank you.
         19                   Now, when was the next communication that
         20         you had with any attorney at the Garbus law firm?
         21   A.    Well, I don't have a record in front of me.  But
         22         subsequent to my first conversation with Mr. Garbus,
         23         I had conversations, by e-mail and by telephone,
         24         with Mr. Hernstadt.
         25   Q.    Do you have any of those -- did you save any of


          1         those e-mails?
          2   A.    Yes.
          3   Q.    Do you have any hard copies of those e-mails in your
          4         possession today?
          5   A.    No, I do not.
          6                   MR. MERVIS:  Let me just interrupt the
          7         questioning.
          8                   Mr. Atlas, I'd call for the production of
          9         hard copies of those e-mails.
         10                   MR. ATLAS:  We'll take it under
         11         advisement.  Obviously, to the extent it deals with
         12         him testifying as an expert in this case, I would
         13         assume I'd have no objection to it.  But I haven't
         14         seen it, so I'd have to see it first.
         15                   MR. MERVIS:  Sure, obviously.  Thank you
         16         for your attention.
         17   BY MR. MERVIS:
         18   Q.    This is Mr. Mervis, again.
         19                   Dr. Touretzky, do you have any
         20         recollection as to the substance of those e-mails?
         21         In other words, what did they say?
         22   A.    We were discussing the preparation of a declaration
         23         to be submitted in this case.
         24   Q.    And is that the declaration that I referred to
         25         earlier, which is the April, I think it's 29th,


          1         declaration?
          2   A.    April 27th, yes.
          3   Q.    I'm sorry, April 27th.
          4                   Is that right?
          5   A.    Yes.
          6   Q.    Did you exchange, for example, drafts of the
          7         declaration?
          8   A.    Yes.
          9   Q.    Do you recall anything more specific about the
         10         content of your e-mail correspondence with
         11         Mr. Hernstadt?
         12   A.    Well, in addition to discussing the drafts, we
         13         discussed the possibility of my being deposed in
         14         this case.  And just recently we exchanged some
         15         e-mail containing a draft of an article, which I
         16         believe has been provided to you.
         17   Q.    Yes, that's right.
         18                   When did you provide that draft of the
         19         article to the Garbus firm?
         20   A.    The first draft was a few days ago, and the draft
         21         you have today was sent last night.
         22   Q.    I got you.  All right.
         23                   Can you recall anything else about the
         24         content of your e-mail correspondence with
         25         Mr. Hernstadt?


          1   A.    I don't recall anything else at the moment.
          2   Q.    About how many phone conversations have you had with
          3         Mr. Hernstadt since the first time you talked to
          4         him?
          5   A.    Probably half a dozen.
          6   Q.    When was the last one?
          7   A.    This morning or yesterday.  I think yesterday.
          8   Q.    What did you and Mr. Hernstadt talk about yesterday?
          9   A.    The scheduling of my deposition.
         10   Q.    Anything else?
         11   A.    I think it was this morning.  We talked about his
         12         intention to provide this article to your firm.
         13   Q.    Anything else?
         14   A.    No, I don't think so.
         15   Q.    You said this morning was when you had that
         16         conversation?
         17   A.    Yes.
         18   Q.    Prior to this morning's conversation, when was the
         19         last time that you spoke to Mr. Hernstadt?
         20   A.    We've spoken several times over the last few days
         21         about scheduling the deposition.
         22   Q.    And during those conversations do you recall whether
         23         there was any other topic but the scheduling of this
         24         deposition?
         25   A.    I don't believe there were other topics.


          1   Q.    And prior to those series of phone calls, when was
          2         the last time that you spoke with Mr. Hernstadt?
          3   A.    I can't recall.
          4   Q.    Apart from those telephone calls to Mr. Hernstadt
          5         that we had just gone over, do you recall anything
          6         that either you or Mr. Hernstadt said during these
          7         conversations?
          8   A.    Well, we discussed Mr. Hart very briefly.
          9   Q.    What did you talk about in regard to Mr. Hart?
         10   A.    I pointed out that Mr. Hart had previously
         11         represented the Church of Scientology.
         12   Q.    And you pointed that out to Mr. Hernstadt?
         13   A.    Yes, I did.
         14   Q.    Did you say anything more than that about that
         15         topic?
         16   A.    Not recently, no.
         17   Q.    I'm sorry, not recently?
         18   A.    No, not in the most -- most recent discussions.  I
         19         believe I forwarded him an e-mail -- no, I'm sorry.
         20         I forwarded to him a Usenet posting that had been
         21         made some time ago, which was a piece of a
         22         deposition where Mr. Hart was present.
         23   Q.    Yes, I think I've seen that.  It's fairly amusing.
         24         That would be the deposition of Mr. Miscavitch?
         25   A.    That's correct.


          1   Q.    Yes, I've read that.  I'm sure Mr. Hernstadt enjoyed
          2         it.
          3                   Did you have any other discussion with
          4         Mr. Hernstadt about Mr. Hart and his representation
          5         of the Church of Scientology?
          6   A.    No.
          7   Q.    Can you remember anything else that you and
          8         Mr. Hernstadt talked about during any of your
          9         conversations prior to the few conversations we
         10         discussed that happened most recently?
         11   A.    No.
         12   Q.    Did you take any notes during any of those
         13         conversations?
         14   A.    No.
         15   Q.    And let me, actually, be more specific.
         16                   Have you taken any notes during any of
         17         your conversations with Mr. Hernstadt?
         18   A.    No, I have not.
         19   Q.    Have you ever made any kind of written record about
         20         any of your conversations with Mr. Hernstadt?
         21   A.    I don't believe I've made any record at all.
         22   Q.    Apart from e-mail correspondence, have you ever had
         23         any other form of correspondence with Mr. Hernstadt?
         24   A.    I did fax his office a copy of the subpoena that I
         25         received in this case.


          1   Q.    Apart from that one facsimile, anything else?
          2   A.    No.
          3   Q.    And have you ever corresponded with Mr. Garbus?
          4   A.    Yes.
          5   Q.    And when was that, sir?
          6   A.    Well, I've exchanged e-mails with both him and
          7         Mr. Hernstadt.  In many cases I sent the same
          8         message to both of them.
          9   Q.    I understand.
         10                   To the extent that -- this is to
         11         Mr. Atlas.
         12                   David, to the extent that there are
         13         e-mails that went to Mr. Garbus that did not also go
         14         to Mr. Hernstadt, I'd also call for their
         15         production.
         16                   MR. ATLAS:  Okay.  I'll take it under
         17         advisement.
         18                   MR. MERVIS:  Thank you.
         19   BY MR. MERVIS:
         20   Q.    This is Mr. Mervis, again.
         21                   I'm sorry, Dr. Touretzky, apart from
         22         Mr. Hernstadt and Mr. Garbus, have you spoken with
         23         anybody else at the Garbus firm?
         24   A.    I've spoken with Fredda Tourin, who I believe is
         25         Mr. Garbus's assistant, and I've spoken with


          1         Mr. Atlas.
          2   Q.    How many times have you spoken with Mr. Atlas?
          3   A.    The first time was this morning.
          4   Q.    And I take it this is in regard to deposition
          5         scheduling?
          6   A.    Yes.
          7                   MR. ATLAS:  This is Mr. Atlas.  It was,
          8         but the witness can answer.
          9                   MR. MERVIS:  Thanks.
         10   A.    Yes.
         11   BY MR. MERVIS:
         12   Q.    Is that correct, Dr. Touretzky?
         13   A.    Yes, that's correct.
         14   Q.    Okay.  Thank you.
         15                   What, if anything, did you do to prepare
         16         for today's deposition?
         17   A.    I reviewed my declaration.  I reviewed the essay
         18         that I prepared, which was supplied to you today.
         19         And I have with me here a large binder of readings.
         20         These are documents that are all publicly available
         21         that I had downloaded from the Internet over the
         22         past months, and I reviewed some of those.
         23   Q.    I'm sorry, did you say pleadings?
         24   A.    Readings.
         25   Q.    Oh, readings.


          1   A.    Yes.
          2   Q.    I see.
          3   A.    Articles.
          4   Q.    Articles.  Do the articles have any kind of common
          5         theme?
          6   A.    Well, they all have to do with copyright, the
          7         Digital Millennium Copyright Act, CSS, DeCSS and
          8         this litigation.
          9   Q.    Did anyone at the Garbus firm assist you in
         10         selecting those articles that you put in this
         11         binder?
         12   A.    There's one article that they referred to me.  All
         13         the other articles I found on my own and have not
         14         discussed them with the Garbus firm.
         15   Q.    What's the one article that was referred to you?
         16   A.    It was a press release by Macrovision.
         17   Q.    And you have that with you here -- in the office
         18         there today?
         19   A.    Yes.
         20   Q.    If you need to look at it, that's fine.  I guess I
         21         just want to know what the -- so you can give me
         22         what sort of the general substance of that press
         23         release is.
         24   A.    My recollection is that Macrovision said in their
         25         press release that the cracking of the CSS


          1         encryption algorithm was not important, that it
          2         would not threaten the ability of the Motion Picture
          3         Industry to protect its content.
          4   Q.    And was there a particular attorney at the Garbus
          5         firm who referred you to that press release?
          6   A.    The referral was made in e-mail, and it may have
          7         come from Fredda Tourin.  I don't know.
          8   Q.    About when did you receive that e-mail?
          9   A.    Several seeks ago.
         10   Q.    Was there any explanation or other instructions in
         11         that e-mail?
         12   A.    The e-mail just said that this was an interesting
         13         article.
         14   Q.    Now, the declaration, the April 27th declaration --
         15         and I suppose I might as well have the reporter mark
         16         it as Touretzky 1.
         17                   MR. ATLAS:  Touretzky 1, okay.
         18                            - - - -
         19                   (Touretzky Deposition Exhibit No. 1 marked
         20         for identification.)
         21                            - - - -
         22            (There was a discussion off the record.)
         23                            - - - -
         24   BY MR. MERVIS:
         25   Q.    Dr. Touretzky, about how long did the drafting


          1         process take before you got to the final version of
          2         your declaration, which is marked for identification
          3         as Exhibit 1?
          4   A.    My recollection is that I received the first draft
          5         from Mr. Hernstadt.  I edited it and sent it back.
          6         And that was the final draft.
          7   Q.    And, I'm sorry, the draft that you received from
          8         Mr. Hernstadt, was that in e-mail form?
          9   A.    Yes.
         10   Q.    And did you print out a hard copy at the time?
         11   A.    No, I did not.
         12   Q.    And when you edited it, did you edit it on the
         13         computer?
         14   A.    Yes.
         15   Q.    In soft copy?
         16   A.    Yes.
         17   Q.    And you sent it back to him by e-mail?
         18   A.    Yes, I did.
         19                   MR. MERVIS:  Dave, just so there's no --
         20         it shouldn't be confusing, but this, obviously,
         21         would be one of the documents that we'd certainly
         22         like to see.
         23                   MR. ATLAS:  Okay.  Again, we'll take it
         24         under advisement.
         25   BY MR. MERVIS:


          1   Q.    This is Mr. Mervis, again.
          2                   Prior to receiving Mr. Hernstadt's draft,
          3         had you had discussions with him about what the
          4         content of the declaration ought to be?
          5   A.    Yes.
          6   Q.    Do you recall anything about those discussions?
          7   A.    Yes.  I explained to him about the Gallery and what
          8         the exhibits were and the point that the Gallery was
          9         trying to communicate.  And then Mr. Hernstadt, in
         10         his draft, tried to convey what I had tried to
         11         convey to him.
         12   Q.    Did you have a discussion -- well, let me ask you
         13         this:  How did it come to be that Mr. Hernstadt did
         14         the first draft as opposed to yourself?
         15   A.    I think they got tired of waiting for me to produce
         16         a first draft.
         17   Q.    I think that's a perfectly good explanation.
         18                   So you looked at it, and you edited it
         19         once and then -- I'm sorry, and then you said that
         20         was it, that was the final draft?
         21   A.    That's my recollection.  Now, they did -- they
         22         wanted me to sign it, and they wanted it to have a
         23         caption.
         24   Q.    Right.
         25   A.    So they sent me back the document in Microsoft Word


          1         format because it had a proper caption.
          2   Q.    I see.
          3   A.    So I got that back from them.  And that I printed
          4         out and signed and sent to them.  And I did make one
          5         other edit in that document.  I changed my name,
          6         which they had put as Dave Touretzky.  It should
          7         have been David S.  And so I made that one edit in
          8         their Microsoft Word document and sent that back to
          9         them.
         10   Q.    I'm sorry, where did you make that change in the
         11         document?
         12   A.    In the caption and in the first line of the text.
         13   Q.    I'm sorry, and you say you changed it to David S.
         14         Touretzky?
         15   A.    Yes.
         16   Q.    Not that it's all that important, but the document
         17         that we marked as Exhibit 1, just so we see if it's
         18         the same one, at the very beginning, below the
         19         caption box, how did your name read?
         20   A.    So the Exhibit 1 that you have is the version that I
         21         edited and sent back to them.
         22   Q.    Right.
         23   A.    And that reads David S.
         24   Q.    I see.  All right.
         25                   Well, why don't we go off the record for a


          1         second.
          2                            - - - -
          3            (There was a discussion off the record.)
          4                            - - - -
          5                   MR. ATLAS:  Mr. Touretzky, if you could
          6         just explain the circumstances under which the
          7         affidavit that was filed in court says Dave
          8         Touretzky and not David S. Touretzky.
          9                   THE WITNESS:  Yes.
         10   A.    After I e-mailed the draft back to Mr. Hernstadt, he
         11         needed a signed copy with a proper caption.  And in
         12         order to do that, he sent me their Microsoft Word
         13         version.  And when I looked at that, I noticed that
         14         they had my name as Dave.  And I prefer David S. in
         15         professional correspondence, so I changed it to
         16         David S.  I printed that out, and that is what I
         17         sent back to them.
         18                   But my understanding is that they had
         19         already filed their version.  When I sent it back, I
         20         didn't alert them that I had made this change
         21         because I didn't realize they would be filing their
         22         version instead of my signed copy.
         23   BY MR. MERVIS:
         24   Q.    All right.  Well, we'll work through the text, and
         25         presumably it will be the same.


          1                   Let me ask you -- before we get to the
          2         declaration in full, let me just ask you one other
          3         question:  Have you been asked to testify at the
          4         trial of this case, Dr. Touretzky?
          5   A.    It's my understanding that I will be asked to
          6         testify, yes.
          7   Q.    But as far as -- hang on one second.
          8                   But as of this date you have, in fact --
          9         no one has, in fact, asked you to do so; is that
         10         right?
         11   A.    Well, I think they've asked me to, but they don't
         12         have a date yet.
         13   Q.    I see.  And if you're asked to do so, will you do
         14         so?
         15   A.    Yes.
         16   Q.    Now, as I understand it, you're, apparently, going
         17         to be out of the country in the coming weeks?
         18   A.    I'm leaving tomorrow.
         19   Q.    And how long are you going to be away?
         20   A.    I'll be returning on the 22nd.
         21   Q.    Now, by the way, in connection with the work that
         22         you've done with the Frankfurt Garbus firm on this
         23         case, have you received any kind of compensation?
         24   A.    No.
         25   Q.    Have you ever had any conversations with Eric


          1         Corley?
          2   A.    I have not.
          3   Q.    Have you ever had any kind of communication with
          4         Eric Corley?
          5   A.    None whatsoever.
          6   Q.    Now, before we start looking at particular passages
          7         from the declaration, let me try this:  What is it
          8         that you understand -- withdrawn.
          9                   Could you give me the bottom line opinions
         10         that you would like to offer at the trial of this
         11         case?
         12   A.    Yes.  I think there are three ideas I'm trying to
         13         communicate.  The first is that computer code
         14         written in a high level language, such as C, has
         15         expressive content.  The second is that it's not
         16         possible to distinguish between computer code and
         17         other forms of expression, such as plain English.
         18         And the third point is that it's not possible to
         19         distinguish between what people call source code and
         20         what they call object code.
         21   Q.    And has anyone asked you to offer opinions at the
         22         trial on subjects other than the three subjects
         23         you've enumerated?
         24   A.    No.
         25   Q.    I'm sorry, just bear with me.


          1                   If you could turn, Dr. Touretzky, to page
          2         two of your declaration, which is marked as Exhibit
          3         1 for identification.
          4   A.    Yes.
          5   Q.    Referring you to paragraph two of your declaration,
          6         if you could take a look at the very last sentence,
          7         which I'll read.  It says:  I do not link to the
          8         binary executable file for the program known as
          9         DeCSS.
         10                   Did I read that correctly, Doctor?
         11   A.    Yes.
         12   Q.    Is that still the case?
         13   A.    That is still the case.
         14   Q.    Why is it that you don't link to the binary
         15         executable file for DeCSS?
         16   A.    It was a strategic decision on my part.  I want to
         17         make as clear a case as possible that the
         18         publication of source of C level -- high level
         19         language code, such as C code, is protected by the
         20         First Amendment.  Although I believe that object
         21         code deserves the same protections, I wanted to make
         22         a case that was as short and simple as possible and
         23         not get bogged down in arguments about the legal
         24         status of binary executable code.
         25   Q.    Now, taking a look at the very next paragraph, in


          1         fact, the very next sentence, which reads:  It is my
          2         belief that source code is expressive speech
          3         meriting the full protection of the First Amendment.
          4                   Can you tell me, sitting in Pittsburgh
          5         today, the basis of that belief?
          6   A.    Well, I've been programming computers for 25 years,
          7         and much of my activities involve expressing my
          8         ideas in source code and reading source code written
          9         by other people.
         10   Q.    And I take it that experience has led you to believe
         11         that source code is worthy of, as you say, a First
         12         Amendment protection?
         13   A.    Yes.
         14   Q.    Now, let me pose a couple of -- well, let me ask you
         15         this:  You're familiar with the computer virus that
         16         was recently in the news called the Melissa virus?
         17   A.    Yes, I am.
         18   Q.    Is that a computer code?
         19   A.    Yes.
         20   Q.    And there's source code for that?
         21   A.    I believe there is, yes.
         22   Q.    In your opinion, would that source code be a form of
         23         expression that's worthy of First Amendment
         24         protection?
         25   A.    Absolutely.


          1   Q.    Let me just give you a hypothetical.  Supposing that
          2         access to a nuclear warhead -- I'm sorry, access to
          3         the triggering mechanism of a nuclear warhead was
          4         protected by an encryption system and suppose that
          5         someone had developed a software utility to
          6         circumvent that encryption system, would the source
          7         code for that hypothetical utility, would that be
          8         expression that's protected under the First
          9         Amendment?
         10                   MR. ATLAS:  I'll object to that question.
         11         But, Dr. Touretzky, if you think you can answer it,
         12         go ahead.
         13   A.    Well, as I understand the question, you're asking me
         14         whether expression that threatens national security
         15         enjoys First Amendment protection.
         16   BY MR. MERVIS:
         17   Q.    Well, I suppose that was the gist of it, yes.  But,
         18         I mean, whether or not it threatens national
         19         security, I guess my question is, given those two
         20         assumptions, would that hypothetical source code
         21         constitute expression worthy of First Amendment
         22         protection?
         23                   MR. ATLAS:  This is Mr. Atlas, again.
         24         Just one other objection.  As far as I know,
         25         Dr. Touretzky is not a lawyer.  His answer should,


          1         in no means, be interpreted as a legal conclusion.
          2         But from a layperson's perspective, Dr. Touretzky
          3         can answer, if he has an opinion.
          4   A.    I think in principle it deserves First Amendment
          5         protection.  But I have to allow that it may be the
          6         case, then, if this particular code did pose an
          7         immediate and grave risk to national security, then
          8         it may be permissible to limit its distribution in
          9         that case.
         10   BY MR. MERVIS:
         11   Q.    I'm sorry, just bear with me for a second.
         12                   If you could turn to the next page,
         13         Dr. Touretzky, page three.
         14   A.    Yes.
         15   Q.    And take a look at the first sentence of paragraph
         16         four where you wrote, I am concerned that this
         17         court, referring to Judge Kaplan, issued an order
         18         prohibiting the defendants from posting source code
         19         for CSS decryption algorithms on the Internet.
         20                   Apart from my little editorial, did I read
         21         that correctly?
         22   A.    Yes, you did.
         23   Q.    And I take it -- today do you still have that
         24         concern?
         25   A.    Yes, I do.


          1   Q.    Can you tell me, sitting there today, what the basis
          2         of that concern is?
          3   A.    I believe the court is depriving the defendants of
          4         their First Amendment rights.
          5   Q.    And why is that?
          6   A.    Because the court is prohibiting speech.
          7   Q.    I take it that you are sympathetic to the
          8         defendants' position in this case?
          9   A.    Yes.
         10   Q.    If you could take a look at Exhibit B to your
         11         declaration, which has been marked as Exhibit 1 for
         12         identification.
         13                   MR. ATLAS:  This is Mr. Atlas.  Just give
         14         me a second so that I can find what we're referring
         15         to.
         16                   Off the record.
         17                            - - - -
         18            (There was a discussion off the record.)
         19                            - - - -
         20   A.    I'd like to point out that I don't have a copy of
         21         what was filed as the Appendix B.  I have printed
         22         out the Gallery myself.
         23   BY MR. MERVIS:
         24   Q.    Oh, okay.  And what date?
         25   A.    And that's what I have with me.  I printed this out


          1         last night.
          2   Q.    Well, that's good, because I have one I printed out
          3         about an hour ago.  So it probably -- has it
          4         changed?
          5   A.    No, it has not.
          6                   MR. ATLAS:  The one that's attached as, I
          7         guess, Exhibit B, this is Mr. Atlas, by the way, to
          8         the declaration is dated 4/28, 2000.  It looks like
          9         it was printed out at 2:02 p.m.
         10                   So I've got no objection to you asking
         11         questions, but let's just be clear that we're all on
         12         the same page and we're looking at the same
         13         language.
         14                   MR. MERVIS:  Well, I guess it's possible
         15         we're not all on the same page.  But I think -- and
         16         let's do this:  Mr. Atlas, if what I'm about to read
         17         is different on your version, let me know.
         18                   MR. ATLAS:  Okay.
         19                   MR. MERVIS:  Because I'm only looking at
         20         one sentence.
         21                   MR. ATLAS:  Okay.
         22   BY MR. MERVIS:
         23   Q.    Dr. Touretzky, looking to the third paragraph on the
         24         Gallery and the very last sentence, and you've
         25         written:  This Web site was created to explore this


          1         issue and point out the absurdity of Judge Kaplan's
          2         position that source code can be legally
          3         differentiated from other forms of written
          4         expression.
          5                   Did I read that correctly?
          6   A.    Yes, you did.
          7   Q.    Now, is it still your position, as you sit there
          8         today, that Judge Kaplan's position that source code
          9         can be legally differentiated from other forms of
         10         written expression is absurd?
         11   A.    With apologies to the judge, yes, it is.
         12   Q.    I take it you've read Judge Kaplan's decision?
         13   A.    I read the preliminary injunction, yes.
         14   Q.    Right.  And it's your understanding that in that
         15         decision he draws a distinction, a legal
         16         distinction, between source code and other forms of
         17         written expression?
         18   A.    Yes.
         19   Q.    Do you have a copy of the decision with you today?
         20   A.    I do.  It will take me a minute to pull it out of
         21         this binder, if you'll bear with me.
         22   Q.    That's fine.
         23   A.    Okay, what I see here is a memorandum Order dated
         24         February 2nd of 2000.
         25   Q.    All right.


          1                   Why don't we ask the reporter to mark that
          2         as an exhibit.
          3                            - - - -
          4            (There was a discussion off the record.)
          5                            - - - -
          6   BY MR. MERVIS:
          7   Q.    Getting back to your comment in your Gallery,
          8         Dr. Touretzky, regarding the absurdity of the
          9         position that you indicate Judge Kaplan has taken,
         10         why do you think it's absurd?
         11   A.    In his memorandum and in his -- in the transcript
         12         that I recall reading of the hearing, Judge Kaplan
         13         said that he did not wish to enjoin discussion of
         14         the DeCSS algorithm.  He only wished to enjoin
         15         computer code.
         16                   The problem with that position is that
         17         it's a trivial matter to translate the computer code
         18         into conversational English.  And I've done so, and
         19         that is supplied as one of the exhibits in the
         20         Gallery.
         21   Q.    Right.
         22   A.    Well, once one has a copy of the plain English
         23         description, it's, again, a trivial matter to
         24         convert that back to C source code or to source code
         25         in some other programming language.  And so Judge


          1         Kaplan's prohibition has no real effect.
          2   Q.    Let me direct you back to paragraph four of your
          3         declaration, Exhibit 1 for identification.  We've
          4         already gone over the first sentence.  I want to
          5         direct your attention to the next two sentences --
          6         I'm sorry, the next three.  If you could just read
          7         those to yourself, and let me know when you finish.
          8                   MR. ATLAS:  Actually, could we just read
          9         them out loud just so that I'm clear that we're all
         10         reading from the same document?
         11                   MR. MERVIS:  All right.  I don't mind.  I
         12         read fairly well.
         13   BY MR. MERVIS:
         14   Q.    As a scientist, I feel it is imperative that anyone,
         15         not just academics, be allowed to participate in the
         16         ongoing analysis and improvement of encryption
         17         technologies.  This requires a dialogue among all
         18         interested parties who must be free to engage in
         19         their own testing and reverse engineering and to
         20         openly discuss the algorithms and their
         21         implementation.  A normal part of such discussions
         22         among computer scientists is the sharing of source
         23         code.
         24                   Did I read that correctly, Dr. Touretzky?
         25   A.    Yes, you did.


          1   Q.    Let me ask you this, sir:  As you understand it,
          2         how, if at all, does Judge Kaplan's injunction
          3         affect the things that you express concern about in
          4         the sentences I just read?
          5   A.    Judge Kaplan has enjoined the publication of source
          6         code, and that will hinder the ability of people to
          7         discuss these algorithms.
          8                   As I showed in the Gallery, it doesn't --
          9         it doesn't absolutely prohibit it, prohibit
         10         discussion, because it's a trivial matter to turn C
         11         into English and English into C, but it's certainly
         12         an inconvenience.  And I think Judge Kaplan's
         13         intention was to do more than inconvenience people.
         14   Q.    Well, let me ask you this:  Let's say you were
         15         interested in having a discussion with like-minded
         16         people about encryption technologies.
         17                   You could do that through e-mail, couldn't
         18         you?
         19   A.    Certainly.
         20   Q.    And you could, if you wanted to study source code in
         21         connection with the discussion of encryption
         22         technologies, you could send copies of the source
         23         code back and forth by e-mail, correct?
         24   A.    Yes.
         25   Q.    Have you heard the term or such a thing as a private


          1         Internet Web site?
          2   A.    I understand the concept.
          3   Q.    Can you tell me what your understanding is?
          4   A.    My understanding is that it would be a Web site
          5         where access is restricted in some way, perhaps by
          6         use of a password.
          7   Q.    And, hypothetically, if like-minded people wished to
          8         discuss encryption technology and in the process
          9         study source code, at least hypothetically they
         10         could get together, form a private Web site and post
         11         the source code on that site, correct?
         12   A.    They could do that, yes.
         13   Q.    Turning to the very next sentence of your -- well,
         14         let me -- I'm sorry, let me ask you this:  Given
         15         that -- well, is it correct that -- withdrawn.  I'll
         16         get back to that.
         17                   In the next sentence -- let me just read
         18         it for the record.  The next sentence you write, it
         19         is clear to me that some of the Web sites presently
         20         posting and/or linking to DeCSS or the css-auth
         21         decryption routines are primarily part of the
         22         Internet-based scientific/intellectual dialogue
         23         described above, especially those sites operated by
         24         developers of DVD applications or by cryptographers.
         25                   Did I read that correctly?


          1   A.    Yes, you did.
          2   Q.    Let's go to the very beginning of the sentence when
          3         you say that it's clear to me that some of the
          4         sites.
          5                   Which sites did you have in mind when you
          6         wrote this?
          7   A.    Well, for example, the Cryptome Web site operated by
          8         John Young provides the DeCSS program and the
          9         css-auth source.  I believe both.  There's a site
         10         called OpenDVD.org.
         11                   There are Web sites devoted to the Livid
         12         Development Group.  Livid is a DVD player for the
         13         Linux Operating System.  And I believe those Web
         14         sites make the code available as well.  And Frank
         15         Stevenson, who I know has filed a declaration in
         16         this case, maintains a Web site in which he has some
         17         decryption code available.
         18   Q.    I'm sorry, any other sites that you were referring
         19         to when you're referring to some Web sites?
         20   A.    Those are all the ones I can think of off the top of
         21         my head.
         22   Q.    Do you think you saw others?
         23   A.    I probably did, but I can't be certain.
         24   Q.    Any idea as to how many?
         25   A.    In addition to the ones I named, the ones that were


          1         clearly devoted to cryptography or DVD applications,
          2         I would imagine only one or two beyond what I've
          3         named already.  I haven't looked for those kinds of
          4         Web sites.
          5   Q.    And, I'm sorry, why is it that you haven't looked
          6         for them?
          7   A.    I'm not particularly interested if cryptography.
          8   Q.    I understand.
          9                   Now, I take it that of the four that you
         10         listed and of the two others, your recollection is
         11         that those sites have, in addition to DeCSS code,
         12         various discussions of cryptography?
         13   A.    Either cryptography or video applications.
         14   Q.    Do you know or have you ever tried to make a study
         15         of how many sites are available right now on the
         16         World Wide Web that have the DeCSS either executable
         17         or source code on them?
         18   A.    The estimate that I read was somewhere around three
         19         to four hundred.
         20   Q.    And have you ever examined or done any kind of study
         21         as to what number of those three to four hundred
         22         make the code available but have no discussion of
         23         either cryptography, reverse engineering or any
         24         other computer science-related topic?
         25   A.    No, I haven't done that kind of study.


          1   Q.    Getting back to my hypothetical about, say, the
          2         private Web site where like-minded individuals who
          3         are interested in cryptography could study source
          4         code because they could have it posted up there, in
          5         your opinion, what is the difference between
          6         obtaining or studying the source code through that
          7         private Web site as opposed to obtaining it through
          8         the 2600 Web sites?
          9   A.    I think there are two differences.  First of all, if
         10         discussion was restricted to this private Web site,
         11         people with a casual interest would not be able to
         12         obtain access to the material.  And, secondly, if
         13         people were required to only discuss the source code
         14         on this private Web site, they would be denied their
         15         First Amendment rights.
         16   Q.    And how would that be, sir?
         17   A.    Because the First Amendment does not say that one
         18         can discuss things in private but not in public.
         19   Q.    I see.  I take it it's your view that the posting of
         20         an executable utility on a Web site is a form of
         21         discussion?
         22   A.    Well, let's first be clear about what you mean by
         23         executable.
         24   Q.    Well, I appreciate your point that, perhaps, there
         25         isn't a difference.  But what I mean is machine


          1         readable code that can be downloaded and run on a
          2         Windows operating system.
          3                   MR. ATLAS:  This is Mr. Atlas.  I object
          4         to the form.
          5   A.    My belief is that posting machine executable code is
          6         posting speech.
          7   BY MR. MERVIS:
          8   Q.    Are you aware that the DeCSS code is, for example,
          9         being offered on the eBay auction site for sale?
         10   A.    No.  I had no idea.
         11   Q.    Well, assuming, hypothetically, that that were the
         12         case, would that be a form of speech or discussion?
         13                   MR. ATLAS:  Objection.
         14                   Are you referring to the offering for sale
         15         or the code itself?
         16                   MR. MERVIS:  I'm talking about the
         17         offering for sale of the code.
         18                   MR. ATLAS:  I'll object.
         19                   But if you can answer that, go ahead.
         20   A.    My understanding is that such an offer would be
         21         commercial speech.
         22   BY MR. MERVIS:
         23   Q.    Let me ask you this:  Do you know what DeCSS does?
         24   A.    Yes.
         25   Q.    What does it do?


          1   A.    DeCSS converts a DVD file from one format to
          2         another.
          3   Q.    And from what format to what format?
          4   A.    It converts it from a scrambled format to one where
          5         the CSS scrambling has been undone.
          6   Q.    And is the byproduct of that process a copy of the
          7         DVD's VOB files in unencrypted form?
          8   A.    That's my understanding.
          9   Q.    We're actually hitting the homestretch here.
         10                   Let's turn, now, to paragraph seven of
         11         your declaration.
         12   A.    Yes.
         13   Q.    I'm sorry, just give me one second.
         14                   Let me read the final sentence of this
         15         paragraph.  You say, thus I believe the mirror sites
         16         are making a political statement, even when the
         17         prohibited files are posted without additional
         18         commentary.
         19   A.    That's correct.
         20   Q.    And that's your opinion, correct?
         21   A.    Yes.
         22   Q.    Now, can you tell me, Dr. Touretzky, what skills,
         23         education or special experience that you apply, if
         24         any, in reaching that opinion?
         25   A.    It's based on my personal experience.  When I first


          1         read about the California case, my immediate
          2         reaction was to put the source code for css-auth on
          3         my Web site.
          4   Q.    And why was that?
          5   A.    For three reasons:  First, because I felt that I had
          6         the right to do so and I wanted to exercise my First
          7         Amendment right; second, because I felt the
          8         plaintiffs were being treated unjustly and I wanted
          9         to make a gesture in solidarity with the plaintiffs
         10         in the California case; and, third, because I
         11         thought the basis of the California case, which was
         12         a trade secrets claim, was ludicrous.
         13   Q.    The plaintiffs in that case or the defendants in
         14         that case?
         15   A.    I thought the plaintiffs' claim in the California
         16         case -- the plaintiffs were claiming a trade secret
         17         violation.  I thought the claim was ludicrous.  And
         18         being aware that Pennsylvania has not adopted the
         19         Uniform Trade Secrets Act, I decided to put the CSS
         20         -- the DeCSS source code -- actually, the css-auth
         21         source code on my Web site, being a Pennsylvania Web
         22         site, where it would not be subject to these
         23         ludicrous trade secret claims.
         24   Q.    I'll get to that in just a minute.  I think you may
         25         have misspoken.


          1                   MR. ATLAS:  Yes.  Again, just to clarify
          2         the record, and you can have the statement read
          3         back, but I think Dr. Touretzky said something along
          4         the lines of he posted the code in sympathy for the
          5         plaintiffs' position in the California lawsuit.
          6                   I think you probably meant the defendants'
          7         position.  But if I'm wrong, why don't we just
          8         clarify that now.
          9   A.    I'm sorry.  I meant to say the defendants' position
         10         in the California case.
         11   BY MR. MERVIS:
         12   Q.    And I think you may have also said, but let me just
         13         ask you:  I take it you feel or felt that the
         14         defendants in the California case were being treated
         15         unjustly; is that correct?
         16   A.    Yes.
         17   Q.    Why is that?
         18   A.    Because the DVD Copy Control Association brought a
         19         lawsuit against them when they had no grounds to do
         20         that.
         21   Q.    And is it correct that you similarly feel that the
         22         defendants in this case, the Universal City Studios
         23         case, are being treated unjustly?
         24   A.    I think this case is a little bit harder because
         25         there's bad law.  So I'm -- perhaps one could say


          1         that the Motion Picture Association is trying to
          2         make use of bad law, but at least the claim isn't
          3         completely ludicrous.
          4   Q.    And when you say bad law, you're referring to the
          5         Digital Millennium Copyright Act?
          6   A.    Yes.
          7   Q.    Now, getting back to paragraph seven, I think the
          8         question I posed to you was what skills, education
          9         or professional experiences you brought to bear in
         10         reaching the opinion that you expressed in paragraph
         11         seven.  I think you told me that it was personal
         12         experience.
         13                   Apart from the three immediate conclusions
         14         that you drew about the California lawsuit, i.e.,
         15         that you had sympathy for the defendants' position,
         16         the defendants were being treated unjustly and --
         17   A.    Those two are the same.
         18   Q.    Right.  I'm sorry.  -- and that the basis of the
         19         plaintiffs' claim was ludicrous --
         20   A.    And that I wanted to exercise my First Amendment
         21         rights.
         22   Q.    Thank you for correcting me.
         23                   What other skills, education or experience
         24         did you bring to bear in reaching the conclusion
         25         expressed in -- or, I'm sorry, the opinion expressed


          1         in paragraph seven?
          2                   MR. ATLAS:  This is Mr. Atlas.  I object
          3         as to form, but go ahead.
          4   A.    Well, I've seen other cases where people posted
          5         documents whose distribution had been prohibited.
          6   BY MR. MERVIS:
          7   Q.    I'm sorry, and what cases were they?
          8   A.    Well, one example is various scientology cases.
          9   Q.    Right.  Okay, I'm sorry.  You're not talking about
         10         DeCSS?
         11   A.    That's correct.
         12   Q.    You're talking about other litigation which I'm
         13         fairly familiar with.
         14   A.    Yes.
         15   Q.    In reaching the opinion that you state in the last
         16         sentence of paragraph seven, did you draw upon any
         17         of your experience, educational, practical or
         18         otherwise, as a computer scientist?
         19   A.    Well, I think only the experience that I believe all
         20         computer scientists view code as speech.  And
         21         certainly all the computer scientists that I've
         22         spoken with view the attempt to prohibit publication
         23         of computer code as an attack on the First
         24         Amendment.
         25   Q.    Okay.  I understand.


          1                   But apart from that, apart from that, you
          2         can't identify any other skills, education or
          3         experience, as a computer scientist, that you
          4         brought to bear in reaching the opinion you state in
          5         the last sentence of paragraph seven?
          6   A.    That's correct.
          7   Q.    Now, getting back to the California case for a
          8         minute, and I promise you I'm almost finished, why
          9         is it that you believe that the DVD CCA's claims
         10         were ludicrous?
         11   A.    Because one cannot misappropriate a trade secret by
         12         downloading a publicly-available file from an
         13         Internet Web site.
         14                   MR. MERVIS:  Mr. DeForest, have you
         15         received the fax, the one-page fax?
         16                   MR. DeFOREST:  I have.
         17                   MR. MERVIS:  Mr. Atlas, you have that?
         18                   MR. ATLAS:  I've got it.
         19                   MR. MERVIS:  Could we ask the reporter to
         20         mark that as Touretzky 2?
         21                   MR. ATLAS:  Is it something entitled MPAA
         22         Violating Rights?
         23                   MR. MERVIS:  Correct.
         24                            - - - -
         25                   (Touretzky Deposition Exhibit No. 2 marked


          1         for identification.)
          2                            - - - -
          3   BY MR. MERVIS:
          4   Q.    Dr. Touretzky, the court reporter has, presumably,
          5         passed you a copy of a document I faxed to you that
          6         I printed off your Web site this morning.
          7                   Do you recognize Exhibit 2?
          8   A.    Yes, I do.
          9   Q.    Is this something you wrote?
         10   A.    Yes.
         11   Q.    Why did you write this?
         12   A.    I wrote a letter to the editor of the school
         13         newspaper, the Tartan, because the previous week the
         14         Tartan had run an article about the MPAA objecting
         15         to a couple of Web sites at Carnegie Mellon,
         16         including mine.
         17   Q.    I want to direct your attention to the final
         18         paragraph.  And paying particular attention to the
         19         second sentence, which reads, the DMCA is a poorly
         20         constructed law written by the industry itself and
         21         has not yet been tested in the courts.
         22                   Did I read that correctly?
         23   A.    Yes.
         24   Q.    Is it your opinion, as you sit there today, that the
         25         DMCA is a poorly constructed law?


          1   A.    Yes.
          2   Q.    And is it your belief, as you sit there today, that
          3         the DMCA was written by the industry itself?
          4   A.    I believe there was input from other groups, but I
          5         believe the primary impetus for this law was the
          6         Motion Picture Industry, at least for this section
          7         of the law.
          8   Q.    This section being the anti-circumvention provision?
          9   A.    Yes.  I think the Motion Picture Industry and the
         10         music industry, and I don't easily separate them as
         11         a layman, I believe they were the primary impetus
         12         for this -- for the anti-circumvention provisions.
         13   Q.    I see.  And what is that belief based on?
         14   A.    Reading articles about the controversy surrounding
         15         the law.
         16   Q.    Anything else?
         17   A.    No.
         18   Q.    In the next sentence you write, it curtails some
         19         well-established rights of American citizens in
         20         order to advance the economic interests of a private
         21         cartel.
         22                   Did I read that correctly?
         23   A.    Yes.
         24   Q.    The private cartel is whom?
         25   A.    Your clients.


          1   Q.    And the well-established rights are which rights,
          2         sir?
          3   A.    The rights of their use and the Doctrine of First
          4         Sale.
          5   Q.    First sale.  Any other rights?
          6   A.    Not that I can think of at the moment.  Well, no, I
          7         take that back.  The DMCA is being used by your
          8         clients in an attempt to circumvent the First
          9         Amendment.
         10   Q.    And how is that, sir?
         11   A.    Because they're using the anti-circumvention
         12         provisions to suppress speech.
         13   Q.    And taking a look at the very last sentence of the
         14         Exhibit 2, you write, the MPAA's attempt to
         15         interfere with speech it doesn't like should be
         16         rejected and roundly condemned.
         17                   Did I read that correctly?
         18   A.    Yes.
         19   Q.    Is that still your belief, as you sit there today?
         20   A.    Yes, it is.
         21   Q.    And in writing that sentence, are you referring in
         22         particular to this lawsuit, the Universal City
         23         Studios lawsuit?
         24   A.    Both this suit and the California case.
         25                   MR. MERVIS:  If you could just give me one


          1         moment to review my notes.
          2                   THE WITNESS:  Sure.
          3                            - - - -
          4         (There was a brief pause in the proceedings.)
          5                            - - - -
          6   BY MR. MERVIS:
          7   Q.    Let me just give you one more hypothetical.
          8                   You're familiar with devices that are
          9         used, for example, to descramble scrambled cable
         10         television signals?
         11   A.    I know that they exist.
         12   Q.    Would the distribution of such devices, whether or
         13         not for profit, would that be a form of speech
         14         that's protected by the First Amendment, in your
         15         view?
         16                   MR. ATLAS:  This is Mr. Atlas.  I'm going
         17         to object to that question.  A couple things:  I'm
         18         not clear what you mean by devices.  I believe this
         19         is outside the scope of this witness's testimony and
         20         may be outside of the scope of this witness's
         21         knowledge.  I think the question is objectionable on
         22         a couple of grounds.
         23                   If the witness understands it and can
         24         answer it, I'll let him attempt to do so.
         25   BY MR. MERVIS:


          1   Q.    Dr. Touretzky, do you remember the question?
          2   A.    Yes, I do.
          3   Q.    Are you able to answer it?
          4   A.    Yes.  I think one has to distinguish between three
          5         classes of things.  If the device that you have in
          6         mind is merely a software program, then that device
          7         is speech, and it may not be prohibited.
          8                   If the device in question is a physical
          9         device, something that you can hold in your hand,
         10         then whether that device's distribution should be
         11         prohibited or not would depend on the uses for which
         12         the device was intended.
         13                   So the ability to descramble scrambled
         14         cable signals is not, of itself, grounds for
         15         prohibiting distribution of a device.  I think one
         16         would have to show whether there were significant
         17         non-infringing uses.  And if there were no
         18         non-infringing uses, then I believe it would be
         19         acceptable to prohibit the distribution of the
         20         physical device itself, not distribution of plans
         21         for how to construct such a device.
         22   Q.    If you wrote a computer program and someone without
         23         your authority got a copy and put it on the
         24         Internet, would you have any rights to try to take
         25         it down?


          1                   MR. ATLAS:  Objection.  Again, since the
          2         witness is not a lawyer, I don't know whether he's
          3         able to sort of answer that from a legal point of
          4         view.  I think he can express an opinion from a
          5         layperson's point of view.
          6                   MR. MERVIS:  Well, that's fine.  I'm
          7         asking for his opinion from the point of view of
          8         David Touretzky, with all of his learning knowledge
          9         and experience.
         10   A.    I'd be happy to give you my opinion about copyright
         11         law and to answer your question specifically.
         12   BY MR. MERVIS:
         13   Q.    The opinion on copyright law I'm actually not
         14         interested in.
         15   A.    Okay.
         16   Q.    Although, perhaps, off the record we could talk
         17         about it at length.  I'd be happy to.  But my
         18         hypothetical is really what I'm interested in.
         19   A.    Okay.  Your question was, as I understand it, if I
         20         wrote a computer program and someone else obtained a
         21         copy of it and put it on the Web without my
         22         permission, would I have the right to try and take
         23         it down.
         24   Q.    Right.
         25   A.    And my answer to that is it would depend whether


          1         their use of my program fell within fair use or not.
          2         If it falls within fair use, I would not have the
          3         right.
          4                   MR. MERVIS:  David, there are, obviously,
          5         some documents that, you know, we have asked for
          6         production of and, hopefully, we'll get them.  You
          7         know, pending the receipt of an examination of those
          8         documents, I have no further questions.
          9                   MR. ATLAS:  Okay.  This is Mr. Atlas.
         10                   Now, the first thing I'd like to do is
         11         actually mark as -- let's mark, as Touretzky 3, the
         12         e-mail that Dr. Touretzky sent to me.  It's dated
         13         July 12.  I received it today.  It's an e-mail, and
         14         then it's an essay entitled Source versus Object
         15         Code:  A False Dichotomy.  Let's mark that.
         16                            - - - -
         17                   (Touretzky Deposition Exhibit No. 3 marked
         18         for identification.)
         19                            - - - -
         20            (There was a discussion off the record.)
         21                            - - - -
         22                   MR. ATLAS:  Dr. Touretzky said he had the
         23         essay but not the e-mail that sent it to me.  So
         24         I've asked the reporter to mark just the essay part
         25         of it.


          1                   MR. MERVIS:  That's fine.
          2                            - - - -
          3                          EXAMINATION
          4                            - - - -
          5   BY MR. ATLAS:
          6   Q.    Dr. Touretzky, looking at what we've marked as
          7         Exhibit 3, can you tell me what that is?
          8   A.    This is an essay I wrote about the impossibility of
          9         distinguishing source versus object code.
         10   Q.    And when did you prepare this draft?
         11   A.    This most recent draft, which I sent to you, I sent
         12         last night.
         13   Q.    And the appendices that are attached, it looks like
         14         that there's an Appendix A, Appendix B, C and D, did
         15         you prepare those as well?
         16   A.    Yes.
         17   Q.    What was the point of preparing this statement?
         18   A.    Well, in reviewing other depositions in this case,
         19         I've noticed that the plaintiffs' attorneys have
         20         tried to make a distinction between source code and
         21         object code.  I believe this has come up as well in
         22         some of the arguments in court.  And I also noticed
         23         that some of the other computer scientists that were
         24         deposed tried to explain that that distinction isn't
         25         really a valid one, but I'm not sure that their


          1         point was understood.
          2                   So I wrote this essay in an attempt to
          3         educate both sides as to why it's not valid to make
          4         a distinction between high level source code, such
          5         as expressed in C, and lower level program
          6         representations, including even binary executables.
          7   Q.    Now, going back to the opinions that you testified
          8         you were expressing in this case, I believe there
          9         were three of them.  I won't restate them because I
         10         don't want to be inaccurate.  It's already on the
         11         record.
         12                   But I just want to find out whether the
         13         basis for those three opinions are set forth in what
         14         we've marked as Touretzky Exhibit 3, your essay, as
         15         well as Touretzky Exhibit 1, which is your
         16         declaration.
         17   A.    Yes.
         18   Q.    Let me just go back.  I'm looking through my notes
         19         here.
         20                   Can you summarize for me, Dr. Touretzky,
         21         the experience that you bring to bear on the
         22         opinions that you've expressed in this case?
         23   A.    Yes.  I've been programming computers since I was 12
         24         years old.  I'm a faculty member in a computer
         25         science department at a major university.  I've


          1         taught computer programming and computer
          2         science-related courses to a large number of
          3         audiences of different types.  And I program myself.
          4         I write code.  I publish code, and I use computer
          5         programming to explore ideas.
          6   Q.    The Gallery that has been referred to during your
          7         testimony here, what was the point you were trying
          8         to communicate with your creation of the Gallery?
          9   A.    Well, the real point is that Judge Kaplan tried to
         10         make a distinction that doesn't hold up.  He, in
         11         trying to protect at least some of the defendants'
         12         First Amendment rights, he declined to enjoin
         13         discussion in plain language of the decryption
         14         algorithm.  He only enjoined publication of what he
         15         viewed as executable code.
         16                   What the Gallery shows is that there's no
         17         distinction to be made there, that the C source code
         18         can be trivially transformed into plain English, and
         19         the reverse can also be done.
         20                   So in attempting to enjoin one thing and
         21         not the other, he's tried to make a distinction that
         22         doesn't really exist.
         23   Q.    Well, let me ask you a question that accepting
         24         plaintiffs' argument there is a danger in posting
         25         the source code for DeCSS, would the same danger


          1         exist posting the English translation of the source
          2         code for DeCSS?
          3   A.    Absolutely.
          4                   MR. ATLAS:  I'm just looking through your
          5         declaration, just looking through some notes.  So if
          6         you'll give me a minute, if you don't mind.
          7                   THE WITNESS:  Sure.
          8                            - - - -
          9         (There was a brief pause in the proceedings.)
         10                            - - - -
         11   BY MR. ATLAS:
         12   Q.    Turning to page three of your declaration, paragraph
         13         five.
         14   A.    Yes.
         15   Q.    Looking at the first two sentences, and I'll read
         16         them just to make sure that we're all on the same
         17         page, it says, my Gallery is a combination of
         18         scientific dialogue and political statement.  In
         19         comparing the, quote, anonymous C source code, end
         20         quote, for CSS decryption with the code in css --
         21         I'm not quite sure what that --
         22   A.    Underscored.
         23   Q.    Lower case --
         24   A.    It's an underscore.
         25   Q.    -- underscore descramble.c (part of the css-auth


          1         package), I discuss certain structural and strategic
          2         differences between the two implementations of the
          3         decryption routine.  Without access to the source
          4         code, I would never have been able to discern these
          5         differences or present them to the world for
          6         commentary online.
          7                   Is that accurate?
          8   A.    Yes.
          9   Q.    Could you just explain to me the second sentence
         10         here, why you would never have been able to discern
         11         the differences or to present them to the world for
         12         commentary online?
         13   A.    Well, the differences are differences in
         14         implementation of an algorithm.  If one merely
         15         describes the algorithm in abstract terms,
         16         implementation details don't come up.  It's only by
         17         observing these two implementations of the algorithm
         18         as C source code that I can draw distinctions
         19         between the two implementations.
         20   Q.    You may have answered this already, but I'm going to
         21         ask the question -- a slightly different question, I
         22         think:  Is it your testimony and your belief that
         23         there is a particular value to show the source code
         24         as opposed to the English translation in connection
         25         with the discussion of encryption technologies or


          1         other academic pursuits?
          2   A.    Well, if you translate the source code line by line
          3         into English, as I've done in the Gallery, then
          4         there's no particular value in using one over the
          5         other.  But there are many other ways to describe
          6         the algorithm in English that don't correspond one
          7         for one with lines of C source code.  And some of
          8         those ways are vague.  And, therefore, you can't
          9         have discussions about implementations of something
         10         that's too vague to count as an implementation.
         11                   MR. MERVIS:  I'm sorry, Edna, can I have
         12         the question and answer read back?
         13                   THE COURT REPORTER:  Sure.
         14                            - - - -
         15          (The record was read back by the Reporter.)
         16                            - - - -
         17   BY MR. ATLAS:
         18   Q.    Turn to Touretzky 1, again.  If you could just turn
         19         to page five of that.
         20   A.    Yes.
         21   Q.    Is that your signature on page five?
         22   A.    Yes.
         23   Q.    And other than the fact that your name doesn't
         24         appear in the more formal way that you would have
         25         hoped on page one, is everything in here accurate,


          1         to the best of your knowledge?
          2   A.    Yes.
          3                   MR. ATLAS:  I don't believe I have any
          4         further questions.
          5                   MR. MERVIS:  I may have one or two.
          6                            - - - -
          7                         RE-EXAMINATION
          8                            - - - -
          9   BY MR. MERVIS:
         10   Q.    Dr. Touretzky, what skills would one need to take
         11         the English translation of DeCSS source code and
         12         cause a decryption of a DVD disk?
         13                   MR. ATLAS:  Objection to the form.  But if
         14         he can answer, go ahead.
         15   A.    Well, that's a long process.
         16   BY MR. MERVIS:
         17   Q.    You know, I'm sorry.  I meant to say DVD movie.
         18         But, in any event, take me through the long process.
         19   A.    Okay.  Well, first you would have to translate the
         20         English back into C.  That's trivial.  Anyone who's
         21         had the most elementary knowledge of C programming
         22         would be able to do that.
         23                   Having done that, one would then go
         24         through the normal steps of compiling the C program,
         25         and then I believe that the C program would have to


          1         be linked with some library files.  So these are all
          2         things that any basic -- any elementary programmer
          3         could do.  Someone who's taken a single college
          4         course in computer programming should be able to do
          5         that.
          6                   Then one would have to acquire a DVD
          7         player and somehow connect it to a computer.  I
          8         think, pretty much, anybody can do that.  No special
          9         skill is required.  Then one would have to run the
         10         program, and pretty much anyone can do that.
         11   Q.    So if one were conversant in C computer programming
         12         language and had taken and been reasonably
         13         successful in an entry-level college computer
         14         science course and then had the necessary equipment,
         15         one could take your English language translation of
         16         the DeCSS source code and at the end wind up with an
         17         unencrypted copy of a DVD movie; is that correct?
         18   A.    I believe so.
         19                   MR. ATLAS:  I object as to form, but go
         20         ahead.  The answer is?
         21   A.    I believe that's correct.
         22                   MR. MERVIS:  Again, pending the receipt of
         23         the documents, I don't have any further questions.
         24                   MR. ATLAS:  Thank you very much.
         25                   Mr. Touretzky and Edna and everybody else


          1         on the line, thank you for helping make this come
          2         together.
          3                            - - - -
          4         (The proceedings were concluded at 2:40 p.m.)
          5                            - - - -


          2   COUNTY OF ALLEGHENY          )       SS:
          3         I, Edna Loudenslager, RPR, a Court Reporter and
          4   Notary Public in and for the Commonwealth of Pennsylvania,
          5   do hereby certify that the witness, DR. DAVID S.
          6   TOURETZKY, was by me first duly sworn to testify to the
          7   truth, the whole truth, and nothing but the truth; that
          8   the foregoing deposition was taken at the time and place
          9   stated herein; and that the said deposition was recorded
         10   stenographically by me and then reduced to printing under
         11   my direction, and constitutes a true record of the
         12   testimony given by said witness.
         13         I further certify that I am not a relative, employee
         14   or attorney of any of the parties, or a relative or
         15   employee of either counsel, and that I am in no way
         16   interested directly or indirectly in this action.
         17         IN WITNESS WHEREOF, I have hereunto set my hand and
         18   affixed my seal of office this 14th day of July,
         19   2000.
         23                          __________________________________
         24                                    Notary Public