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See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://cryptome.org/cryptout.htm#DVD-DeCSS
(Cryptome Archive)
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1 IN THE UNITED STATES DISTRICT COURT
2 SOUTHERN DISTRICT OF NEW YORK
3
UNIVERSAL CITY STUDIOS, INC., PARAMOUNT
4 PICTURES CORPORATION, METRO-GOLDWYN-MAYER
STUDIOS, INC., TRISTAR PICTURES, INC.,
5 COLUMBIA PICTURES INDUSTRIES, INC.,
TIME WARNER ENTERTAINMENT CO., L.P.,
6 DISNEY ENTERPRISES, INC., and TWENTIETH
CENTURY FOX FILM CORPORATION,
7 Plaintiffs,
vs. NO. 00 Civ. 0277
8 (LAK)
SHAWN C. REIMERDES, ERIC CORLEY a/k/a
9 "EMMANUEL GOLDSTEIN" and ROMAN KAZAN,
Defendants.
10
_______________________________________/
11
12
DEPOSITION OF CHRIS J. DiBONA
13
14 DATE: July 8, 2000
15 DAY: Saturday
16 TIME: 9:59 a.m.
17 PLACE: Weil, Gotshal & Manges LLP
2882 Sand Hill Road, Second Floor
18 Menlo Park, California
19 PURSUANT TO: Subpoena
20 REPORTED: KAREN L. BUCHANAN
CSR No. 10772
21
22 ______________________________________________________
23 COMP-U-SCRIPTS
OFFICIAL REPORTERS AND NOTARIES
24 1101 South Winchester Blvd., Suite D-138
San Jose, California 95128
25 (408) 261-9795
1
1 APPEARANCES:
2 For the Plaintiffs: PROSKAUER ROSE LLP
BY: CARLA MILLER,
3 ATTORNEY AT LAW
1585 Broadway
4 New York, NY 10036
(212) 969-3713
5
For the Defendants: FRANKFURT GARBUS KURNIT
6 KLEIN & SELZ
BY: EDWARD HERNSTADT
7 ATTORNEY AT LAW
488 Madison Avenue
8 New York, NY 10022
(212) 826-5582
9
The Videographer: McMAHON & ASSOCIATES
10 BY: LOU MEADOWS
One Almaden Boulevard
11 Suite 829
San Jose, CA 95113
12 (408) 298-6686
13
14
15
16
17
18
19
20
21
22
23
24
25
2
1 INDEX OF EXAMINATIONS
2 Page
3 By Ms. Miller 5
4
5
6
7 INDEX OF EXHIBITS
8 Plaintiff's Page
9 1 Subpoena in a Civil Case 26
10 2 Declaration of Chris DiBona in 44
Opposition to Plaintiffs' Motion
11 to Modify the Preliminary Injunction
and in Support of Defendants'
12 Cross-Motion to Vacate the
Preliminary Injunction
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 --oOo--
2 THE VIDEOGRAPHER: We are going on the
3 record. The time on the screen is 9:59 a.m. Today's
4 date is Saturday, July 8, 2000. We are located at the
5 offices of Weil, Gotshal & Manges, 2882 Sand Hill Road,
6 Menlo Park, California.
7 This is tape 1 of the videotaped deposition
8 of Chris DiBona. The case name is Universal City
9 Studios versus Corley et al., venued in the U.S.
10 District Court for the Southern District of New York.
11 The case number is 0277 LAK.
12 My name is Lou Meadows, legal video
13 specialist and notary, representing McMahon &
14 Associates, One Almaden Boulevard, Suite 829, San Jose,
15 California 95113.
16 The court reporting firm is Comp-U-Scripts.
17 The court reporter is Karen Buchanan.
18 Counsel, please state your name, your office
19 and whom you represent in this action.
20 MS. MILLER: Carla Miller from the law firm of
21 Proskauer Rose in New York, New York, representing all
22 plaintiffs.
23 MR. HERNSTADT: Edward Hernstadt from
24 Frankfurt Garbus Kurnit Klein & Selz representing the
25 defendants in this action.
4
1 THE VIDEOGRAPHER: Are there any stipulations
2 you wish to put on the record at this time?
3 MR. HERNSTADT: Do you want to do the usual
4 stips?
5 MS. MILLER: The usual stips is fine.
6 THE VIDEOGRAPHER: Please swear in the
7 witness.
8 CHRIS J. DiBONA,
9 being first duly sworn by the
10 Certified Shorthand Reporter to tell
11 the truth, the whole truth, and nothing
12 but the truth, testified as follows:
13 EXAMINATION BY MS. MILLER:
14 Q. Mr. DiBona, good morning. As you know, my
15 name is Carla Miller. I'm an attorney representing the
16 plaintiffs in this lawsuit.
17 Have you ever been deposed before?
18 A. No.
19 Q. Have you ever testified in any court
20 proceeding?
21 A. No.
22 Q. You understand that you've just been sworn to
23 tell the truth under oath, and a deposition is a court
24 proceeding. And so I'll be asking you questions and
25 you'll be giving me answers to the best of your
5
1 knowledge or recollection, truthful answer, of course,
2 just as if we were sitting in a court, even though we
3 are in the offices of a law firm and feel somewhat
4 informal. Your deposition is, of course, being
5 videotaped, and also the court reporter sitting to your
6 right is taking down everything we say.
7 So just as a matter of housekeeping, it's
8 always better if you wait for me to complete my
9 question so that the court reporter can take down
10 accurately what I've said. In turn, I will wait for
11 you to complete your answers before moving on to the
12 next question, and we will proceed from there.
13 If ever you need to take a break or if
14 Mr. Hernstadt wishes to take a break, just let me know
15 that and we'll do that.
16 What is your home address?
17 A. Currently it's 1334 Holly Avenue, Los Altos,
18 California, 94024.
19 MR. HERNSTADT: Do you want to make that
20 confidential?
21 THE WITNESS: That's fine. I'll be moving in
22 about two weeks.
23 MR. HERNSTADT: You know how those internet
24 people are.
25 THE WITNESS: They're my friends.
6
1 BY MS. MILLER:
2 Q. Are you employed currently?
3 A. Yes.
4 Q. By who?
5 A. VA Linux Systems of Sunnyvale, California.
6 Q. And what is the address for VA Linux Systems?
7 A. 1382 Bordeaux Avenue, and it's Sunnyvale, so
8 it's 94089.
9 Q. How long have you worked for VA Linux Systems?
10 A. Since November of 1998.
11 Q. Did you work prior to November of 1998?
12 A. Yes.
13 Q. And where did you work prior to November of
14 1998?
15 A. For about six months before '98, I was an
16 independent consultant and was one of the founders of a
17 cryptography firm that did not get funded.
18 Q. What was the name of that firm?
19 A. Strong Crypto, Incorporated.
20 Q. I'm sorry?
21 A. Strong Crypto.
22 Q. Strong Crypto?
23 A. Yeah.
24 Q. And you said it did not get funded.
25 A. Yeah.
7
1 Q. Were you looking for investors for Strong
2 Crypto?
3 A. Yes, we were.
4 Q. Were there any other founders of Strong
5 Crypto?
6 A. Yes.
7 Q. How many?
8 A. Three.
9 Q. What were their names or are their names?
10 A. Arthur Tide, Dave Sifrey, and Dave LaDuc.
11 MR. HERNSTADT: Is there any reason that you
12 want to make that confidential? We can do that.
13 THE WITNESS: No, I don't see any reason why.
14 It will be an interesting bit of trivia for some
15 people.
16 BY MS. MILLER:
17 Q. And how long was Strong Crypto in business?
18 A. Three months. I'd have to go back to my
19 records and check for sure.
20 Q. And did the company perform any consulting
21 projects for any customers during that three-month
22 period of time?
23 A. I don't think there were any revenue
24 customers. I think there may have been a couple of
25 sort of trials, but nothing that would have made us any
8
1 money.
2 Q. You say you think there were a couple of
3 trials?
4 A. Yeah.
5 Q. Two or three?
6 A. Probably two. Again, I'd have to go back.
7 It's been a while. And that wasn't really part my part
8 of the company.
9 Q. What was your part of the company?
10 A. I was there as a programmer while working on
11 the architecture of the cryptography program we were
12 working on.
13 Q. How many other employees of Strong Crypto were
14 there at the time --
15 A. None.
16 Q. -- while it was in existence?
17 None? Just the four of you, yourself, Arthur
18 Dave and Dave?
19 A. Yep.
20 Q. Prior to your involvement with Strong Crypto,
21 did you work before that?
22 A. Yes.
23 Q. Where did you work?
24 A. I was at Tandem Computers.
25 Q. And which office of Tandem Computers, here in
9
1 Cupertino?
2 A. Right here in Cupertino on Tantau Avenue.
3 Q. How long were you at Tandem Computers?
4 A. Probably about two years.
5 Q. Can you give me the specific dates?
6 A. No. I'd have to go back to my records.
7 Q. Okay. What years, then?
8 A. I guess it would go until about '96 through
9 early '98. But again, I'd have to check.
10 Q. And what did you do for Tandem Computers?
11 A. I worked on smart card identification methods
12 for a certificate authority product, not certificate --
13 a product for the Singapore government based on the
14 Entrust CA; E-N-T-R-U-S-T. Not T.
15 THE VIDEOGRAPHER: Can I get you to raise your
16 microphone about three inches? It's scraping a little
17 bit on your shirt.
18 MR. HERNSTADT: Raise it?
19 THE VIDEOGRAPHER: Yeah.
20 MR. HERNSTADT: I've got to lower it. How's
21 that?
22 MS. MILLER: Could I have the last answer read
23 back, please?
24 (The record was read by the Reporter.)
25 THE WITNESS: E-N-T-R-U-S-T is the name of the
10
1 company that it was based on. It was their product
2 that we were modifying for the Singapore government.
3 BY MS. MILLER:
4 Q. What is a "certificate authority"? That's
5 what I wanted to clarify in having your last answer
6 read back.
7 A. Well, it's fairly complex and has nothing
8 really to do with this. So if you really want to get
9 into this, it will take a while.
10 Q Tell me.
11 A A certificate authority -- okay, so if you
12 have a key which is used to encrypt data, a certificate
13 authority is something that creates something called an
14 X509 certificate.
15 Q. An X509?
16 A. Yeah, which you can then use to authenticate
17 and encrypt transactions between, say, databases or
18 people. Simply put, it's so you can do secure
19 communications in a way that guarantees the person
20 doing that communication.
21 Q. That guarantees the person doing that
22 communication, you mean authenticates the person that's
23 engaging in communication?
24 A. Yeah. Authenticates the person and encrypts
25 the transmission using the certificate.
11
1 Q. That wasn't so complex.
2 A. It's more than that, but it's hard to
3 describe.
4 Q. I appreciate the explanation. Thank you.
5 Prior to your working at Tandem Computers,
6 were you employed?
7 A. Yeah.
8 Q. What was your job prior to Tandem?
9 A. I was the e-mail administrator for a law firm
10 in Washington D.C., Howrey & Simon.
11 Q. And how long did you work at Howrey & Simon?
12 A. About a year.
13 Q. So that would be 1995 through 1996?
14 A. Roughly.
15 Q. Was that your sole responsibility at Howrey &
16 Simon?
17 A. Yes.
18 Q. E-mail administrator?
19 A. There were about 1200 clients.
20 Q. 1200 clients of the law firm or 1200 --
21 A. Of the mail software.
22 Q. And prior to Howrey & Simon, were you
23 employed?
24 A. Yeah, over at the United States Department of
25 State in the Office of Information Management where I
12
1 evaluated cryptography products for the government.
2 Q. And when were you employed at the Department
3 of State?
4 A. I was employed there for about a year and a
5 half, two years before Howrey & Simon.
6 Q. For the entire time, that year-and-a-half to
7 two-year period, were you working in the Office of
8 Information Management --
9 A. Yes.
10 Q. -- for the Department of State?
11 And prior to that, were you employed?
12 A. Yeah, but it was retail jobs before then.
13 Q. Did you attend college?
14 A. Yes.
15 Q. What college?
16 A. I attended NOVA, which is a community college
17 in Virginia, for my associates degree, and I attended
18 but did not complete my computer science degree over at
19 George Mason.
20 Q. George Mason University?
21 A. Uh-huh. I had one class left.
22 Q. When did you obtain your associates degree
23 from NOVA Community College?
24 A. Gee. That's a good question. Probably about
25 '92 or '91. No, '93 probably. I'd have to go back.
13
1 I've got the certificate at home.
2 Q. And what was your field of study at NOVA
3 Community College?
4 A. Computer science.
5 Q. And when did you start at George Mason
6 University?
7 A. Again, when I was done with NOVA, so I'd say
8 probably around '93, '91, '92. Probably '93, though.
9 Q. And how long did you attend George Mason
10 University?
11 A. I was a full-time student from -- probably
12 until about '95 or '96 when I moved. I'd have to check
13 my calendar. I moved with one class left, so...
14 Q. Were you working towards a Bachelor of Science
15 degree?
16 A. Mm-hmm, in computer science.
17 Q. Did you take any classes in programming
18 languages?
19 A. Yes.
20 Q. Which programming languages?
21 A. Specifically, C, I took a survey course that
22 included ADA, Pascal, C, Assembly and a couple of
23 others that escape me. I also took a class that
24 focused on the Scheme language, that's S-C-H-E-M-E, I
25 believe. It's been a long time. And that pretty much
14
1 is it.
2 I've also done a lot of work with the assembly
3 languages.
4 Q. I'm sorry, assembly language?
5 A. Yeah, in one of the classes.
6 Q. Just so the record is clear, what is assembly
7 language?
8 A. That's a very good question. It depends on
9 the context.
10 When I was doing it, it was the -- it was the
11 MAKR assembly language, which means that the language
12 compiler went through certain steps to make it easier
13 to program assembly.
14 Assembly is sort of a step up from machine
15 code, which is referenced by the operating system. So
16 assembly language when I did it was basically the MAKR
17 assembly version of assembly language, precompiled,
18 done before you compile it to machine code.
19 Q. Now, Mr. DiBona, do you understand that you
20 have been identified as an expert witness in this case?
21 A. Yes.
22 Q. And how was that understanding derived? In
23 other words, what I mean is who first approached you to
24 testify as an expert witness in this case?
25 A. I'm going to have to defer to Ed.
15
1 MR. HERNSTADT: You can't.
2 BY MS. MILLER:
3 Q. What's your recollection?
4 A. I helped out the FF with their -- with a case
5 out here on December 7th or December 9th. No.
6 December 22nd. It was a different case regarding the
7 DVD controversy. And through that, I was exposed to
8 Marty Garbus and Edward Hernstadt over at FGKS. And
9 that led to me writing a declaration for the trial.
10 Q. When you say "the case out here," are you
11 referring to the lawsuit brought by the DVD Copy
12 Control Association --
13 A. Yes.
14 Q. -- against various individuals and Santa Clara
15 Corp.?
16 A. Yes.
17 Q. And what was your involvement in that case?
18 A. I helped organize the local free software
19 community to come and attend the case and to hand out
20 pamphlets outside so people knew what was going on
21 inside of the courtroom.
22 Q When you say the "local free software
23 community," do you mean in Northern California?
24 A. I mean specifically the Bay Area.
25 Q. Okay. What pamphlets did you hand out for
16
1 the case?
2 A. There were a couple of them. There was the
3 one-pager that 2600 came up with. I think that was --
4 there was that one. There was the copy of the source
5 code itself to CSS-auth. We also handed out T-shirts
6 that were made by CopyLeft that had the DVD CSS
7 software source code on it. And that was the limit of
8 what we handed out.
9 Q. When you say the one-pager that 2600 came up
10 with, what is 2600?
11 A. 2600 is a magazine dedicated to exploring
12 locks, crypto systems, computer security.
13 Q. Did you still have copies of that pamphlet?
14 A. Somewhere. If not, I could print another one
15 out. They're readily available on the net.
16 Q. What is CSS-auth?
17 A. CSS-auth is a piece of code in C that is
18 designed to go through the authentication step for the
19 copyright, the content scrambling system that's used in
20 the DVD.
21 Q. And when you say "piece of code," what do you
22 mean by that?
23 A. Well, in this case, it's a text file that
24 contains code that you use in another program using the
25 language C to access the DVD stuff.
17
1 Q. So by "code," do you mean that it's actually a
2 computer program or a portion of a computer program
3 written in the C programming language?
4 A. It's a portion.
5 Q. Mr. DiBona, as I've explained to other
6 witnesses in this case, again, I am going to be asking
7 you questions obviously about a lot of technical areas.
8 And I understand that you obviously have a background
9 in computer science. So some of the questions that I
10 ask you might seem somewhat elementary or facetious,
11 but you have to understand that we're making a record
12 so that anyone who picks up this transcript will have
13 an understanding of what you and I are talking about
14 when we talk about some of these relatively arcane
15 things to those people. I really don't mean to torture
16 you.
17 A. You're not.
18 Q. But if I ask you to clarify some of the
19 acronyms or something that might seem basic to you, I
20 just wanted to explain that that's why I'm doing that.
21 What areas of expertise were you asked to
22 testify about for purposes of this case?
23 A. Well, primarily my role as a Linux software
24 advocate, and also the actual mechanisms used in using
25 DeCSS and just how it operates, how it works. Those
18
1 are my focuses.
2 MR. HERNSTADT: Like so many of our witnesses,
3 Mr. DiBona is sort of -- is also a mixed fact and
4 expert witness.
5 BY MS. MILLER:
6 Q. So your two areas of expertise, as I
7 understand your last answer, is your role as a Linux
8 software advocate and also just in testifying about the
9 mechanisms used or how actually DeCSS works?
10 A. Yes.
11 MR. HERNSTADT: And insofar as he's getting
12 into DeCSS as a program, obviously, he's got expertise
13 in computer programming.
14 THE WITNESS: Bruce did an expert -- did he
15 do a declaration? Yeah?
16 MS. MILLER: Mr. DiBona, I'm going to ask you
17 not to have a private conversation with Mr. Hernstadt
18 while we're on the record. If you need to speak to
19 Mr. Hernstadt while we're on a break, that's absolutely
20 fine. But during the course of the actual deposition,
21 if you could direct all of your comments to me, and
22 I'll direct all of my questions to you.
23 BY MS. MILLER:
24 Q. Did you prepare any report, an expert report
25 for submission to the judge in this case?
19
1 A. Yes.
2 Q. You did? Where is that report?
3 A. It was submitted to the judge. I think we
4 have a couple of copies here.
5 Q. Are you referring to the declaration --
6 A. Yes.
7 Q. -- that you submitted? Okay. We'll get to
8 that, then.
9 So apart from the declaration that you've
10 already submitted in the case --
11 A. Yes.
12 Q. -- are you preparing any other reports for
13 submission at the trial?
14 A. Not at this time.
15 Q. Have you been asked to prepare any reports for
16 submission at trial?
17 A. No.
18 Q. Are you being compensated for your
19 involvement in this case?
20 A. No.
21 Q. Will you be attending the trial in this case?
22 A. Yes.
23 Q. Will anyone be paying your travel expenses?
24 A. No.
25 Q. So we've touched on it a little bit already,
20
1 but can you tell me again who was the first person from
2 Frankfurt Garbus Klein & Selz to contact you
3 specifically about getting involved in this lawsuit?
4 A. I think it was Marty Garbus. I'd have to go
5 back in my records and check, though, to be sure.
6 Q. Do you remember the time frame for that
7 contact?
8 A. Boy. It would been two and a half months ago,
9 three months ago now. Maybe longer.
10 Q. What month is it now? That would be about
11 April?
12 A. Yeah.
13 Q. Again, I don't mean to be facetious. It's
14 kind of a blur.
15 A. My whole life has been a blur in the last
16 couple of months or so. A lot's been going on.
17 Q. I understand. So two, two and a half months
18 ago?
19 A. I'd have to check to be sure. But that sounds
20 about right.
21 Is there a submission date on the declaration?
22 Q. Yeah, and we'll get to that. I'll show you
23 that.
24 A. That will let me know. It was a couple of
25 weeks before that that I wrote it.
21
1 Q. Very good. Okay.
2 Since your initial communication with
3 Mr. Garbus, if that's the best recollection you have of
4 who you first spoke to, how many different people at
5 Frankfurt Garbus Klein & Selz have you spoken with
6 about your involvement in this case?
7 A. I've spoken with Marty. I've spoken with Ed.
8 I've spoken --
9 Q. Ed would be Mr. Hernstadt?
10 A. Yes, Ed Hernstadt. I've spoken in a
11 peripheral way with Fredda. What's Fredda's last name?
12 She's the assistant to --
13 MR. HERNSTADT: Marty's assistant.
14 MS. MILLER: Thank you, Mr. Hernstadt.
15 THE WITNESS: Yeah. So that's about it. I
16 think there may have been one or two other like
17 paralegals walking around, but Ed and Marty have been
18 my main contacts.
19 BY MS. MILLER:
20 Q. When you say "walking around," do you mean
21 walking around in Frankfurt Garbus' offices?
22 A. Yes.
23 Q. So you visited their offices?
24 A. Yes, I did.
25 Q. When did you visit their offices?
22
1 A. I'm trying to think back. That was -- I'd
2 have to check my records to be sure. It was shortly
3 before I worked on my declaration.
4 Q. Okay. Great, so when we get to the
5 declaration, that date will help refresh your
6 recollection as to all this.
7 And when you visited Frankfurt Garbus'
8 offices, did you meet with Mr. Garbus --
9 A Yes.
10 Q -- and Mr. Hernstadt together?
11 (Discussion had off the record.)
12 BY MS. MILLER:
13 Q. In the meeting with Mr. Garbus and
14 Mr. Hernstadt, what did they tell you about this
15 case --
16 MR. HERNSTADT: Objection to form.
17 BY MS. MILLER:
18 Q. -- if anything?
19 A. Boy. They were more asking me how the
20 encryption methods in the DVD driver works and how the
21 DVDs themselves work, because they wanted to be up on
22 the technology. That was most of that meeting.
23 Q. So you were just assisting them in their
24 understanding --
25 A. Yes.
23
1 Q. -- of the technology involved?
2 A. Yes, I was.
3 Q. Did they tell you who the defendants were in
4 that case?
5 A. I already knew.
6 Q. How did you know?
7 A. It had first come up when the MPAA had brought
8 their case against the defendants, and it was pretty
9 widely known on the internet via Slashdot and other
10 news organizations. And that's how I knew.
11 Q. So that's when you first learned about the
12 lawsuit, is that fair to say, by reading it on the
13 internet?
14 A. Absolutely.
15 Q. Since your first meeting with the lawyers at
16 Frankfurt Garbus firm, have you made any more trips to
17 New York?
18 A. No.
19 Q. How many times since that first meeting would
20 you estimate that you spoke with either Mr. Garbus or
21 Mr. Hernstadt?
22 A. Probably about a half a dozen.
23 Q. Since today, or -- excuse me, 'til today, half
24 a dozen?
25 A. Probably about a dozen times, because, you
24
1 know, Ed's been in town a couple of days.
2 Q. And how did most of these communications take
3 place?
4 A. Via cell phone.
5 Q. By telephone?
6 A. Yeah.
7 Q. Any e-mail communications?
8 A. One or two.
9 Q. Do you still have those e-mails?
10 A. Yes.
11 MS. MILLER: Mr. Hernstadt, at this time I'd
12 like to make a request for the production of those
13 e-mails that Mr. DiBona still has on his computer
14 somewhere, I gather.
15 MR. HERNSTADT: Okay. We will take that under
16 advisement.
17 MS. MILLER: Thanks.
18 BY MS. MILLER:
19 Q. Now, is Mr. Hernstadt's firm actually
20 representing you as a witness in this lawsuit?
21 MR. HERNSTADT: For the purposes of this
22 deposition, yes.
23 MS. MILLER: Okay.
24 BY MS. MILLER:
25 Q. Have you ever signed a retainer agreement with
25
1 Frankfurt, Garbus, Klein & Selz for purposes of
2 representing you in this deposition?
3 A. I don't think I have, no.
4 MS. MILLER: I'm going to show you,
5 Mr. DiBona, what I'd like to first have marked as
6 Exhibit 1.
7 (Plaintiff's Exhibit 1 was marked for
8 identification.)
9 BY MS. MILLER:
10 Q. Mr. DiBona, I've just handed you what's been
11 marked as Exhibit 1, which is a subpoena that's been
12 issued by the plaintiffs in this case to you.
13 Could you just take a minute and flip through
14 the document, and I'd like to ask you some questions
15 about it.
16 A Do you mind if I ask you what day it is?
17 Q. What day it is today?
18 A Yes.
19 Q It's July the 8th?
20 A. Then this subpoena is kind of ridiculous,
21 because it says I have to be somewhere a couple of
22 weeks ago.
23 Q. Okay. Let's stop here, and let me just ask
24 you a question. Have you ever seen this document?
25 A. No.
26
1 Q. Have you seen a document like this?
2 A. No.
3 Q. Were you ever asked by anyone to appear today
4 for this deposition?
5 A. Today? Yes.
6 Q. Who asked you to appear for this deposition
7 today?
8 A. That was Ed. Ed Hernstadt.
9 Q. Were you asked to bring any documents with
10 you --
11 A. No.
12 Q. -- when you came here today?
13 MR. HERNSTADT: I should note for the record
14 that I was never provided with a subpoena for
15 Mr. DiBona or a document request for Mr. DiBona. So I
16 had no opportunity to send it on to him.
17 MS. MILLER: Okay. But you were provided
18 subpoenas for other witness?
19 MR. HERNSTADT: In fact, no. I was given a
20 large -- for the record, Mr. Hart sent me a bunch of 18
21 subpoenas and notices of deposition and a big wad of
22 cash, and I told him -- with a cover letter saying
23 "Since you've agreed to accept subpoenas for non-party
24 witnesses, here that are."
25 I explain that I hadn't agreed to that. I had
27
1 said that I would ask them and, if they told me I could
2 accept a subpoena, then I would accept a subpoena.
3 And before I could do that, he started having
4 the process server serve the witnesses with subpoenas
5 themselves. So I sent back all the subpoenas he had
6 given to me.
7 BY MS. MILLER:
8 Q. Mr. DiBona, did Mr. Hernstadt ever ask you if
9 he was authorized to accept a subpoena on your behalf?
10 A. Not to my recollection, no.
11 Q. Okay. That's all I have on that document.
12 MR. HERNSTADT: When you're done, you can give
13 them to the court reporter.
14 THE WITNESS: This? Okay.
15 BY MS. MILLER:
16 Q. So Mr. DiBona, do you know what CSS is?
17 A. Yes.
18 Q. What is CSS?
19 A. CSS is the content-scrambling system used in
20 the DVD technology.
21 Q. When did you first hear of CSS?
22 A. I heard of CSS probably about six months after
23 DVDs were beginning to be marketed by the different
24 entertainment companies.
25 Q. Six months after?
28
1 A. Yes.
2 Q. And do you know when --
3 A. That's an approximate.
4 Q. Approximately time frame?
5 A. It would be an approximate time frame, yeah.
6 Q. Can you give me a year, approximately?
7 A. I just remember reading about it shortly after
8 DVDs were produced and being marketed as a new thing.
9 Q. And where did you first read about it?
10 A. I have no idea.
11 Q. Was it in a magazine, a paper magazine or on
12 the internet?
13 A. I believe it was a paper magazine or a
14 journal.
15 Q. But you have no idea what that publication is?
16 A. No.
17 Q. What do you remember, if anything, reading
18 about CSS when you first heard of it?
19 A. It was more mentioned in passing as being the
20 method that the DVD uses to prevent people from making
21 direct copies of it.
22 Q. Was the article more focused, then, on the
23 introduction of DVDs in the marketplace or on the CSS
24 technology specifically? You say it was mentioned in
25 passing.
29
1 MR. HERNSTADT: Objection to form.
2 You can answer the question if you can.
3 THE WITNESS: It's the former, actually.
4 BY MS. MILLER:
5 Q. The former?
6 A. Mm-hmm.
7 Q. Do you know what DeCSS is?
8 A. Yes.
9 Q. What is DeCSS?
10 A. DeCSS is a program that runs under the Windows
11 operating system that is designed to allow you to copy
12 decrypted files off of a DVD onto your hard drive.
13 Q. Does the DeCSS -- excuse me. Strike that.
14 Does the DeCSS program, to your knowledge, do
15 anything else other than what you've just described?
16 A. No, not to my knowledge.
17 Q. Have you ever used a DeCSS yourself?
18 A. In the process of preparing my declaration, I
19 did, in fact, use the DeCSS in the method I've said.
20 Q. And where did you obtain the copy of DeCSS
21 that you used?
22 A. I got it off the internet from a link found on
23 opendvd.org.
24 Q. What is a link?
25 A. A hyperlink.
30
1 Q. What is a hyperlink?
2 A. A hyperlink is a -- it's an indicator on a web
3 page which allows you to go from web page to web page,
4 from site to site.
5 Q. So you found the DeCSS program via a hyperlink
6 from opendvd.org?
7 A. Yes.
8 Q. Do you recall what site that hyperlink took
9 you to?
10 A. In fact, it might have been on the opendvd
11 site itself. I just remember clicking on the link.
12 Q. But you don't recall from that point where you
13 actually went, or you didn't notice?
14 A. I didn't notice. I didn't care.
15 Q. When you clicked on that link on the
16 opendvd.org site, do you recall whether the utility
17 started to download immediately to your computer?
18 A. Yes, in fact, it did.
19 Q. Was the DeCSS utility that you downloaded in
20 object code form?
21 A. What do you mean by "object code form"?
22 Q. What do you understand "object code" to mean?
23 A. To me, object code is the interim step after
24 compiling and before linking of, say, source code.
25 Q. Let's back up a little bit, then.
31
1 What is source code?
2 A. Source code is when you use -- is what people
3 consider -- for instance, to take a step back, when
4 you're programming, depending on the language you use,
5 you sometimes choose a higher level of abstraction
6 versus a lower level of abstraction to be able to
7 program faster than you would if you were, say,
8 programming very, very low.
9 So source code is what you call a program that
10 is in a higher level of abstraction than, say, straight
11 machine code.
12 You can program in machine code. You can
13 program in Assembly. You can program in C. I consider
14 all those things to be source code, but they usually
15 have to go through some interim step before they can be
16 executed directly on the computer.
17 Q. Sure.
18 A. So when you say object code to me, I
19 specifically think of the code that is generated from
20 source code after it's been put through a compiling
21 stage before it has been linked to certain libraries to
22 make it executable by the machine.
23 I don't know if that clarifies.
24 Q. That's great. So the DeCSS utility that you
25 downloaded was an executable utility?
32
1 A. It was directly executable.
2 Q. And just so, again, we're clear, what is an
3 executable as you and I have just used the term? How
4 do you understand that term?
5 A. Okay. So depending on the environment, an
6 executable can be a number of different things.
7 Q. When you say "environment," do you mean a
8 different computer operating system environment?
9 A. It could mean an operating system environment;
10 it could mean within the virtual machine of a browser
11 running Java, for instance; it could mean the microcode
12 that sits on a chip inside a computer. I mean an
13 executable can exist in a number of different forms.
14 So in the case of DeCSS, the executable that I
15 downloaded was directly executable under the Windows
16 environment.
17 Q. Okay. And is it fair to say, when you use the
18 phrase "it's directly executable," then, it can then
19 run under the Windows operating system environment?
20 You can actually run the program or operate the
21 program?
22 A. Yes.
23 Q. Thank you. Just trying to make it plain.
24 A. Mm-hmm.
25 Q. Do you still have a copy of the DeCSS
33
1 executable on whatever computer you downloaded it to?
2 A. Yes, I do.
3 Q. And what computer is that? Was that a
4 personal computer or a computer at your office?
5 A. No. It's my personal laptop at home.
6 Q. So now, what brand of laptop is this? You can
7 just tell me, if we can just cut through this, how it's
8 configured, what operating system environment you were
9 using. I presume, obviously, it was Windows. But if
10 you can just explain to us what the configuration is of
11 your laptop that you used to run DeCSS.
12 A. The laptop is a ThinkPad 600 made by IBM
13 Corporation. It's got 300 megabytes of ram, an
14 18-gigabyte hard drive. I have a DVD drive in it.
15 It's actually a dual-built machine. I
16 installed Windows specifically for the purposes of this
17 declaration. I usually run Linux on it. Linux runs
18 great on it.
19 Q. Prior to running this DeCSS experiment, you
20 did not have the Windows operating system installed on
21 this machine?
22 A. I did not. It's shipped with Windows
23 installed, so it was there, but I wiped it.
24 Q. I'm sorry, did you say that the ThinkPad that
25 you had has an 18-gigabyte hard drive?
34
1 A. Yes.
2 Q. What DVD did you use to test DeCSS?
3 A. "Air Force One."
4 Q. Was that the only one, or were there more?
5 A. That was the only one.
6 Wait. Let me think. I may have tried one
7 other. I'm trying to remember which one it was,
8 though.
9 Q. Okay. Take your time.
10 A. That's the only one I can remember actually
11 doing anything concrete with.
12 Q. When you say "doing anything concrete with" --
13 A. For the purposes of this declaration using
14 DeCSS.
15 Q. Do you know what a .VOB file is?
16 A. Yes.
17 Q. What's your understanding of what a .VOB file
18 is?
19 A. From what I understand, the VOB file is the
20 actual file on the DVD which contains the movie in both
21 video and audio combined.
22 Q. You said that's from what you understand.
23 From where did you gain that understanding?
24 A. Through the use of the programs. I mean it
25 was the VOB file which your licensed or unlicensed
35
1 player would load and play the actual content from.
2 Q. Do you have an understanding of how CSS
3 operates vis-a-vis the DVD drive, the DVD player --
4 A. I believe so, yes.
5 MR. HERNSTADT: Objection to the form.
6 THE WITNESS: Sorry.
7 BY MS. MILLER:
8 Q. You believe you have an understanding of how
9 CSS operates?
10 A. Yes.
11 Q. Could you explain that, what your
12 understanding is about how CSS operates?
13 A. Yeah. From what I understand, CSS is -- it's
14 a multi-step process. The player first of all --
15 okay. So at a hardware level, the DVD drives are
16 designed not to give data out until it's been
17 unlocked. So at a very high level, the DVD player
18 unlocks -- the DVD-playing program on your computer
19 unlocks the hardware to allow you to bring the data off
20 the hardware and play it using the software.
21 As we go lower down, it's actually -- it's
22 very transactional. The DVD hardware will give you
23 certain information without any keys, and then after
24 you have unlocked the drive, it will give you the
25 information like the movies and such off the DVD.
36
1 Q. How does the drive get unlocked, if you know,
2 if you understand?
3 A. From what I understand, a key is passed to the
4 hardware which unlocks the regions on the DVD. It
5 actually unlocks the ability of the DVD hardware to
6 read the data off the DVD.
7 So I mean the DVD disk itself doesn't have
8 any mechanism. It's just one big collection of bits,
9 right? So what's really happening is you're unlocking
10 the hardware and its ability to read the DVD.
11 Q. And I'm sorry, did you say that you believe
12 that that unlocking was done through the passing of a
13 key?
14 A. Yes.
15 Q. What component in this model that we're
16 discussing actually contains the key, to your
17 understanding?
18 A. The key has to come from the playing software,
19 from what I understanding. Again, my declaration was
20 more focused on the mechanisms of using DeCSS.
21 Q. As opposed to the mechanisms of CSS?
22 A. Yes.
23 Q. From where did you derive this understanding
24 of what you just explained to me of the way CSS
25 operates?
37
1 A. Partly from reading sources on the internet,
2 here and there --
3 Q. Do you recall any -- I'm sorry. If you didn't
4 finish your answer, I apologize. Continue, please.
5 A. -- partly intuiting it from the way the
6 utilities like DeCSS and licensed players use; partly
7 from the other declarations.
8 Q. What sources on the internet did you consult
9 to gain this understanding, if you recall?
10 MR. HERNSTADT: Objection to form.
11 You can answer.
12 THE WITNESS: I'm honestly not sure. I didn't
13 keep a record of what I read.
14 BY MS. MILLER:
15 Q. Can you think any web sites where you might
16 have read something about DeCSS?
17 MR. HERNSTADT: Objection to form and so far
18 calls for speculation.
19 BY MS. MILLER:
20 Q. I'm not calling for you to speculate. I'm
21 just asking for you to recall if you can.
22 A. I'm sure some of the information came from --
23 I can't say with any real sureness, so I'm not going to
24 bother.
25 Q. Okay. Fair enough.
38
1 You said that you also read some declarations
2 in the case.
3 A. Yes.
4 Q. Which declarations did you read?
5 A. The one that covered CSS. I don't remember
6 the author, so sorry.
7 Q. Do you recall how you received these
8 declarations or how you came to read them?
9 A. I read them off of the cryptome web site.
10 Cryptome is an archive of all the documents in the case
11 on the net.
12 Q. Do you know the URL for that web site?
13 A. I believe it's cryptome.org.
14 Q. Now, to your -- strike that.
15 To your understanding, are the .VOB files that
16 comprise the DVD movie encrypted?
17 A. It matters what stage you read them. If you
18 read them off of the drive directly without using a
19 player, after the drive has been unlocked, they stay
20 encrypted as you copy them over.
21 If you read them using a player that has the
22 decryption stuff built into it, then they're decrypted
23 as part of that playing process.
24 Q. As part of the playing process?
25 A. Yes.
39
1 Q. As you understand it, when they are on the DVD
2 itself, they are encrypted; is that correct?
3 A. Yes, they are.
4 Q. As far as the operation of DeCSS that you
5 testified to earlier, I believe you said that DeCSS
6 decrypts the movie files as contained on a DVD. Does
7 it then make a copy of those files?
8 MR. HERNSTADT: Objection. Form.
9 You can answer that if you understand it.
10 THE WITNESS: I think the best way to
11 characterize DeCSS is as a tool of decryption and not a
12 tool of copying, because it facilitates the copying of
13 the VOB file off of the DVD into an decrypted VOB file
14 on your hard drive.
15 That said, I can copy the file without it.
16 But DeCSS is useful in that it decrypts that file.
17 BY MS. MILLER:
18 Q. So how does it facilitate the copying of the
19 file?
20 A. It will read the file from the drive and
21 deposit it somewhere else, so...
22 Q. And in the experiment that you ran, where did
23 it deposit it?
24 A. I had it put it on my hard drive.
25 Q. And the way DeCSS operates, can the user
40
1 determine where the file should be deposited --
2 A. Yes.
3 Q. -- to give you options?
4 What other options does it give you?
5 A. I'd have to go back and look at the program to
6 answer that in a complete way, but you can definitely
7 choose where to put the file.
8 Q. So for example, you could submit it to some
9 other auxiliary storage mechanism other than a hard
10 drive like a tape drive, for example, if you recall?
11 A. No. It's specifically for copying it onto a
12 hard drive.
13 Q. So in terms of the user selection, are you
14 just telling it which directory on the hard drive to
15 put it, if you recall the way it operates?
16 A. If I remember correctly, yes.
17 Q. So the user just designates where on the hard
18 drive or which hard drive the DeCSS should deposit the
19 file to; is that correct?
20 MR. HERNSTADT: Objection as to form.
21 BY MS. MILLER:
22 Q. If you recall.
23 A. Yes. You can tell DeCSS where to put the
24 file.
25 Q. Mr. DiBona, do you actually have a DVD player,
41
1 a stand-alone DVD player, a device like a VCR?
2 A. Yes, I do.
3 Q. What model DVD player do you have?
4 A. It's the --
5 MR. HERNSTADT: Go ahead. You can answer.
6 THE WITNESS: It's the low-end Sony model. I
7 don't know the exact model number.
8 You can subpoena the document if you like, but
9 I don't know what it is.
10 MS. MILLER: Off the record.
11 (Discussion had off the record.)
12 BY MS. MILLER:
13 Q. What type of internet connection do you have
14 from your home computer?
15 A. I have a DSL.
16 Q. And what is a DSL?
17 A. Digital Subscriber Line.
18 Q. Do you know at what speed you can transmit
19 files via the DSL that you have in your house?
20 A. Ours is -- I believe it's 192 kilobits per
21 second, maybe 212.
22 Q. Now, would you describe that as a standard
23 DSL -- strike that -- a standard internet connection
24 for most consumers, or would that be fairly high speed?
25 MR. HERNSTADT: Objection to form. Calls for
42
1 speculation.
2 I'll let you answer that if you can.
3 THE WITNESS: I'll be honest with you, if you
4 look at the broad spectrum of connectivity across the
5 United States, there is no typical connection anymore.
6 BY MS. MILLER:
7 Q. By that do you mean that there are so many
8 different types of connections to the internet and
9 speeds that a user has a variety of choices?
10 A. I think that's fair, yes.
11 Q. Going back to the test that you performed
12 using DeCSS, other than decrypting the movie file and
13 allowing you to copy it to your hard drive, do you
14 recall whether DeCSS performed any other functions or
15 allowed you to perform any other functions?
16 MR. HERNSTADT: Object to the form of the
17 question. It's also asked and answered.
18 Go ahead.
19 THE WITNESS: I've already answered that. To
20 my recollection, the functions of DeCSS and
21 specifically the way that I used it was specifically
22 for decrypting and copying the file onto my hard drive.
23 BY MS. MILLER:
24 Q. Have you ever heard anything about a merge
25 function within the DeCSS utility?
43
1 A. No.
2 Q. Have you ever looked at the source code for
3 DeCSS?
4 A. No.
5 Q. Do you have any understanding or knowledge of
6 the programming language that it's written in?
7 MR. HERNSTADT: Objection to form, and also
8 asked and answered.
9 THE WITNESS: I don't know what language it
10 it was written in. I haven't seen the code.
11 MR. HERNSTADT: Can we take three minutes
12 before we get into the declaration, if that's okay?
13 MS. MILLER: Sure.
14 THE VIDEOGRAPHER: Off the record, the time is
15 11:00 o'clock a.m.
16 (Break taken from 11:00 to 11:08 a.m.)
17 THE VIDEOGRAPHER: On the record, the time is
18 11:08 a.m. Please continue.
19 MS. MILLER: Mr. DiBona, I'd like to mark as
20 Exhibit 2 the declaration that you had previously
21 testified that you already submitted in this case.
22 Once the court reporter has marked it, she'll give it
23 to you.
24 (Plaintiff's Exhibit 2 was marked for
25 identification.)
44
1 THE WITNESS: Thank you.
2 BY MS. MILLER:
3 Q. Have you had enough time to look it over?
4 A. I was just browsing.
5 Q. You're familiar with this document, correct?
6 A. Yes.
7 Q. Could you just identify what this document is?
8 A. This is the declaration that was filed,
9 written by me, includes my resume, the -- so there you
10 go.
11 Q. First of all, I'd like to turn your attention
12 to page -- well, actually, the pages aren't numbered,
13 but if you flip to Paragraph 21 --
14 A. Okay.
15 Q. -- which looks like is the last page of the
16 declaration. The declaration is dated May 1st, 2000;
17 is that correct?
18 A. Yes.
19 Q. And you testified earlier that you thought you
20 were first engaged by the Frankfurt Garbus firm to get
21 involved in this case a couple of weeks prior to filing
22 this declaration?
23 A. I think so.
24 Q. Okay. So does the date of the declaration
25 help refresh your recollection as to when you were
45
1 first contacted about your involvement in the case?
2 A. Not particularly.
3 Q. Not particularly? So your prior testimony
4 stands?
5 A. Yes.
6 Q. Did you review any documents in preparing this
7 declaration, anything at all?
8 A. My resume. I had to freshen that one up.
9 That was pretty old by the time I went to go and
10 include it on this document.
11 Q. To just follow up on that, you actually
12 updated your resume that's attached as Exhibit A to
13 your declaration within the May time frame or right
14 around the time the declaration was filed?
15 A. Yeah. I had to. It didn't include the most
16 recent three items of my work experience.
17 Q. So as of today, this declaration is still
18 completely up to date?
19 A. Yes.
20 Q. Okay. Any other documents besides your
21 resume?
22 A. Had to be updated or --
23 Q. No. That you reviewed in preparing this
24 declaration.
25 A. Not particularly. Most of my declaration was
46
1 more procedural. So it was just a matter of me
2 documenting exactly how the mechanisms work.
3 MR. HERNSTADT: I assume you're also excepting
4 the article, the CNN.com article that's attached as
5 Exhibit B to the declaration.
6 BY MS. MILLER:
7 Q. Well, I'm assuming that you did read that
8 article before attaching it. Is that correct,
9 Mr. DiBona?
10 A. It is correct that I read it before attaching
11 it.
12 Q. Did you visit any web sites in preparing this
13 declaration?
14 A. Not particularly. Again, the nice thing about
15 my declaration is that it didn't require a lot of
16 research so much as documentation of how these
17 mechanisms worked.
18 Q. Okay.
19 MR. HERNSTADT: Again, I assume you're asking
20 in addition to whatever web site he visited that he
21 testified about earlier to get the DeCSS.
22 MS. MILLER: Correct. We'll get to all that
23 as we go through the declaration. But we've already
24 gotten a lot of it, so hopefully we can zip right
25 through this.
47
1 BY MS. MILLER:
2 Q. If I could turn your attention, Mr. DiBona,
3 back to the first page of your declaration.
4 Now, you've already testified about your
5 current employment with VA Linux Systems. In
6 Paragraph 1, you say that "VA Linux Systems is the
7 country's leading company providing hardware and
8 software products for Linux users and internet
9 infrastructure companies."
10 What are VA Linux Systems' products? Let's
11 start with hardware first, if you don't mind.
12 A. VA sells servers, desktops and large-scale
13 scientific computing clusters based on Linux.
14 Q. And when you say "computing clusters," could
15 you just explain what that means, please.
16 A. Sure. The scientific computing market, say
17 weather simulations, nuclear test simulations, they
18 require a lot of computing power. And one of the ways
19 that those problems are attacked are by aggregating a
20 number of smaller machines together and using them as
21 a -- as sort of a team to fight the problem. So we
22 sell those teams of machines.
23 Q. You actually configure the clusters, then, as
24 part of the services of VA Linux Systems in addition to
25 just selling the machines, I would imagine?
48
1 A. VA has a professional services organization
2 who specializes in that, among other types of
3 installations.
4 Q. And what about software products?
5 A. VA operates a number of web sites on line, one
6 of which is sourceforge in which we allow open-source
7 developers to have a place that's administered
8 professionally where they can develop software. And
9 from that, a lot of software is developed which we then
10 use with our customers for whatever their needs are.
11 Q. So is it fair enough to say that you provide
12 hosting services for open-source software development
13 efforts?
14 A. It's accurate to say that, yes.
15 Q. What is VA Linux Systems' current customer
16 base, if you know?
17 MR. HERNSTADT: Objection. Form. It's vague.
18 If you understand what she means.
19 THE WITNESS: Honestly, if I knew it I
20 probably couldn't talk about it because of the SEC
21 regulations. It's based on -- you know, we have our
22 earnings report in about a month.
23 But honestly, I don't know it. It's not my
24 part of the business.
25 BY MS. MILLER:
49
1 Q. And what is your current role at VA Linux
2 Systems?
3 A. My job is Linux community evangelist for VA
4 Linux Systems, which means that I -- think of it as --
5 in a traditional company, it would be developer
6 relations.
7 Q. So is it fair to say you are the liaison
8 between VA Linux Systems and Linux developers?
9 A. It would be more fair to say I'm part of the
10 liaison team. There is three or four of us.
11 Q. When did you first become familiar with the
12 Linux operating systems, Mr. DiBona?
13 A. Early 1994 was when I first tried to install
14 it on a 4625 that I owned. I started using it hard
15 core sort of mid '94 as part of my school work.
16 Q. And when was the Linux operating system
17 developed, if you know?
18 A. Linux is -- as an operating system should be
19 considered as two things or many, many things. The
20 Linux kernel began development in the very early '90s.
21 It hit sort of a point where it was more viable in '91
22 to '93. And then it was combined with other tools
23 created by the Free Software Foundation, and those
24 tools had been in development at least a decade at that
25 point.
50
1 Q. Now when you say it "became more viable," what
2 do you mean by that?
3 A. Reliable, useful, actually able to do real
4 work and not just as a dot experiment.
5 Q. What's your understanding of the availability
6 of application software systems for running under the
7 Linux operating system at this point?
8 MR. HERNSTADT: Objection to form. What do
9 you mean by that?
10 BY MS. MILLER:
11 Q. Do you understand what I mean by "application
12 systems"?
13 A. Not particularly, no.
14 Q. You've just testified what an operating system
15 is or what the Linux operating system is.
16 A. I haven't really.
17 Q. Could you tell us what an operating system is?
18 A. An operating system itself, first of all,
19 there is two kinds -- there is a number of different
20 ways of describing an operating system. From its
21 purest definition, an operating system is something
22 that intercedes on behalf of the user to get things
23 done on the computer, right? That's very high level
24 abstraction.
25 An operating system from a computer-science
51
1 perspective is the piece of software that handles
2 resource, handles devices, handles the CPU and memory
3 of a machine.
4 So -- but most people now think of operating
5 systems as being everything. They think of it as being
6 the windowing system, the graphical user interface the
7 user has, they think of it being the tools they use for
8 moving files around, for using their network utilities.
9 And that's not really true so much.
10 So an operating system from a Linux
11 perspective, you have the Linux kernel, which is again
12 the piece of software that maintains the memory, the
13 CPU, the different resources in the computer. Then you
14 have all the utilities on top of it that make up sort
15 of that user interface.
16 Q. When I'm using the phrase "application system"
17 as distinguished from the way you've just described an
18 operating system, what I mean by that is a software
19 program that allows a user to perform a particular
20 task, such as word processing or a financial
21 spreadsheet application. That's what I'm describing or
22 referring to when I use the term "application system."
23 Do you understand that?
24 A. Yes, I do.
25 Q. Okay. Are there application software packages
52
1 available to run under the Linux operating system as
2 you're aware?
3 A. Yes, there are.
4 Q. What types of application systems run under
5 the Linux operating system to your knowledge?
6 A. From an office productivity standpoint?
7 Q. Yes.
8 A. You'll have -- there is Star Office, which is
9 a Sun Microsystems products; there is Applixware, which
10 is --
11 Q. I'm sorry?
12 A. Applix, A-P-P-L-I-X-W-A-R-E. Again, it's
13 another software suite by a company called Applix,
14 which is I think in Germany, but don't quote me on
15 that. Or quote me on that; just know that my knowledge
16 is not very deep there.
17 There are open-source office applications,
18 there is AbiWord, there is KOffice, there is the Gnome
19 software suite has a number of -- it's got a
20 spreadsheet, it's got a calendar, it's got a word
21 processor. And those are all integrated.
22 So there is no surfeit of office productivity
23 applications under Linux. And there is Emax which is
24 the all-encompassing tool that was written by Richard
25 Stallman and others.
53
1 Q. I'm sorry, written by whom?
2 A. Rich Stallman and others, many, many others.
3 Q. To your knowledge, are there any
4 software-based DVD players that run under the Linux
5 operating system?
6 A. From what I understand, I know there are
7 software packages that will play decrypted VOB files,
8 and that's xmovie.
9 As far as software-based DVD players, do you
10 mean licensed or unlicensed?
11 Q. I mean any players that you're aware of,
12 whether licensed or unlicensed.
13 A. As far as I know, I have not used any. I've
14 heard of some being in development, but until I've got
15 it on my laptop and it's playing a DVD, I don't believe
16 it exists.
17 Q. It's vaporware at that point?
18 A. Yeah. There is a lot of vapor out there.
19 So no, as far as I'm concerned, the only way
20 to play a DVD is to have the decrypted VOB file and
21 xmovie on on your machine.
22 Q. Under Linux?
23 A. Under Linux.
24 Q. Okay. What are the ones -- scratch that.
25 Strike that.
54
1 What are the Linux DVD players that you've
2 heard about that are under development?
3 A. Okay. This was one called OMS, and I'm pretty
4 sure -- I was surfing the web about three or four days
5 ago, and I came across it. And it's supposed to be
6 the -- Open Media System, I believe, is what OMS stands
7 for. It looks pretty good from the screen shots I've
8 seen. I didn't try to install it or anything. I
9 didn't have time.
10 Q. Do you recall how you came across OMS surfing
11 the web? Do you recall what web site you found
12 information about that player on?
13 A. I believe it was the LinVideo, linuxvideo.org
14 web site. That can be verified very easily. I could
15 find it again in a second if need be. But I'm sure
16 anyone visiting a browser could find it.
17 Q. Any other development projects you're aware of
18 besides OMS?
19 A. No. None.
20 It's not to say I don't think they exist; I
21 just don't have any personal knowledge of them.
22 Q. Have you ever heard of the LiVid project?
23 A. I think OMS is part of the LiVid project, but
24 I'm not certain.
25 Q. So when you're saying OMS, you're actually
55
1 including within that the LiVid project development
2 efforts?
3 A. I think that OMS is the result of the LiVid
4 project. The LiVid project is the Linux video project
5 to play DVDs, and the software package they wrote was
6 OMS. But again, I'm not sure.
7 Q. Have you ever heard the acronym "LSDVD"?
8 A. Yes, but I have no idea what it stands for.
9 Q. Even -- not withstanding the fact that you
10 don't know what it stands for, do you know what it is?
11 A. No. I'm sorry, I don't.
12 Q. You've just heard the acronym?
13 A. (Nods head up and down.)
14 There is a lot of projects surrounding DVD.
15 Q. What are some of the other projects that
16 you've heard about?
17 A. There is LiVid, there is -- which I think is
18 linuxvideo.org.
19 I don't know the rest of them.
20 Q. But you know there were many of them?
21 A. I'm certain there are many of them. That
22 said, I don't know which ones they are.
23 Q. So how are you certain that there are many of
24 them? I mean how did you gain the knowledge that there
25 are many of them?
56
1 A. Well, if you consider that in the
2 English-speaking programmer community, there is already
3 two or three projects, and there is a lot more people
4 than just English speakers in the world who don't
5 really socialize outside their language. I know there
6 is many of them. There is a lot of programmers out
7 there.
8 So it's an assumption, absolutely, but I think
9 a fair one.
10 Q. Okay. Have you ever personally been involved
11 in developing application systems to run under the
12 Linux operating system?
13 A. Yes.
14 Q. And which systems are those?
15 A. I'm currently writing a personal information
16 manager under Linux.
17 Q. Are you working independently in that effort
18 or with another group of people?
19 A. Just by myself. It's slow going, because I
20 have a very busy job.
21 Q. Apart from this personal project, then, any
22 commercial applications that you've been involved in
23 developing for the Linux operating system, or is that
24 the only one?
25 MR. HERNSTADT: Objection. Form. Assumes
57
1 facts not in evidence, and by that I mean "commercial."
2 MS. MILLER: I'm asking him if he's working
3 on or if he has worked on any other.
4 MR. HERNSTADT: I was just confused when you
5 said "apart from." Okay. I'm sorry.
6 If you understand it better than I did, please
7 answer.
8 THE WITNESS: I think I do. I think I
9 understand your question.
10 BY MS. MILLER:
11 Q. Would you like to have the question read back?
12 A. No. I mean I haven't done any work on any
13 commercial software for Linux, "commercial" meaning
14 closed-source proprietary software. I haven't been
15 involved in that kind of software for a while now.
16 Q. I'd like to direct your attention to
17 Paragraph 3 of your declaration, Mr. DiBona.
18 Actually, before we go there, Paragraph 2
19 initially. In the third sentence there, you say that
20 "Developed over the last decade over the internet,
21 Linux was released under the GNU, General Public
22 License ('GPL')."
23 The next sentence, "The GPL license provides
24 that anyone can use Linux, but they must promise to
25 make any program derived from or based on the Linux
58
1 source code open and freely available in its turn, so
2 as to promote the spread of the Linux and similar
3 software."
4 Do you see that language that I've just read?
5 A. Yes.
6 Q. Now, the GPL license, are there any
7 repercussions if anyone breaches the GPL license
8 vis-a-vis the obligation to make available source code
9 that's based on the Linux source code?
10 MR. HERNSTADT: Objection to the form. Vague.
11 You can answer it if you can.
12 THE WITNESS: No more than there are
13 repercussions for violating a regular license or
14 another license that any person would have with another
15 person. I mean the person who holds the copyright to
16 the software whose license has been violated is free to
17 sue.
18 BY MS. MILLER:
19 Q. So then there is nothing within the philosophy
20 of the open-source Linux communica- -- strike that --
21 Linux community that would preclude a developer of
22 software for Linux from registering a copyright for
23 that software?
24 MR. HERNSTADT: Objection to form.
25 THE WITNESS: Actually, could you just restate
59
1 it?
2 MS. MILLER: Sure. Could you read the
3 question back, please.
4 (The record was read by the Reporter.)
5 THE WITNESS: Okay. So there is the concept
6 of derived works in the GPL. If you were to take code
7 that is in a currently GPLed program and create a new
8 program from it, that program itself would have to be
9 GPLed as well, whether I owned the copyright or not.
10 If I were to -- for instance, if I wanted to
11 create a program that did something and I took a bunch
12 of software code from, say, the Linux kernel that was
13 similar to what I'd need, took it, make some
14 modifications and then released this piece of software,
15 it would have to be released under the GPL because of
16 the viral nature of the GPL.
17 So whether I own copyright or not doesn't
18 contravene the goals of the GPL.
19 Does that make sense? I'm not certain that
20 totally answers your question.
21 BY MS. MILLER:
22 Q. I'm not either.
23 What do you mean by the GPL being viral?
24 A. What I mean is that if you use a piece of code
25 that is GPLed in a program, then that program becomes
60
1 GPLed specifically. So it has the --
2 Q. Is to pursuant to the GPL license terms?
3 A. Yeah. That is one of the terms of the GPL
4 license. So if you were then to redistribute that
5 piece of software, it would have to be GPLed as well.
6 So there you go. It's considered viral because, of
7 course, it spreads.
8 Q. Gotcha. But notwithstanding the fact that if
9 I were to create a piece of software that was GPLed, as
10 you've described it, and incorporating on prior pieces
11 of software that were under the GPL license and create
12 an original work on top of that, would I be able to
13 register a copyright in my own name on that work?
14 MR. HERNSTADT: Objection to form and insofar
15 as it's asking for a legal conclusion or legal advice.
16 I know that's not what you're asking him. I'm just
17 making my record.
18 So let me direct you, don't answer anything
19 that might be considered a legal opinion, but based on
20 your personal knowledge, if you can answer, go ahead.
21 BY MS. MILLER:
22 Q. I'm actually asking for your understanding of
23 GPL license itself.
24 A. It's my understanding.
25 Q. Okay. That's all I'm asking for.
61
1 A. First of all, there is no such thing as an
2 original work. If you take code from someone else,
3 it's not original anymore, is it?
4 Q. To the extent that I add original pieces to
5 that, that delta, as I'm using it, could be considered
6 an original work. And that's the way I'm using it in
7 this hypothetical.
8 A. Okay. Considering the definition we're using
9 here of "original," you've got -- could you restate the
10 question? Sorry. It's easy to lose track.
11 (The record was read by the Reporter.)
12 MR. HERNSTADT: Restate all the objections.
13 Go ahead.
14 THE WITNESS: From what I understand, you
15 would be copyrighting your changes. You wouldn't be
16 copyrighting the derived software code.
17 That said, your changes would include any
18 modifications you made to the code that you co-opted.
19 So it would cover a lot of the software, but you would
20 have to acknowledge copyright of the software which you
21 co-opted.
22 Again, that's my understanding. That's how I
23 treat the GPL.
24 BY MS. MILLER:
25 Q. Okay. Fair enough. Thanks very much.
62
1 Now turning to Paragraph 4 of your
2 declaration, you indicate that you very closely
3 followed the efforts of various individuals and/or
4 groups to develop a DVD player for machines using the
5 Linux operating system (as well as for other
6 open-source operating systems) including those of the
7 international LiVid group."
8 What individuals' efforts have you followed
9 very closely that you refer to in that paragraph? Do
10 you know their names?
11 A. I don't.
12 Q. Do you know their nicks or nicknames on the
13 internet?
14 A. What I mean by "closely followed" was the
15 original LiVid group was hosted on a machine called the
16 Open Projects Machine, and that was hosted in our
17 network. So when I say "closely followed," I try to
18 pay attention to the people hosted on our network,
19 because if they get in trouble, I need to be
20 responsible to give them support if need be or say
21 "What are you doing" or whatever.
22 So specifically for the LiVid group when the
23 initial cease and desist went out from I believe the
24 DVD CCA, again, I may be wrong, it's been probably six,
25 seven months now, right, I sent an e-mail to the LiVid
63
1 group saying, "What would you like us to do? We're
2 here for you."
3 And they said at that point that they would
4 probably go to Germany and get away from the laws of
5 the United States so they could enjoy the freedoms of
6 development they had there.
7 Q. When you say "we were hosting," you do you
8 mean VA Linux Systems --
9 A. Yes.
10 Q. -- your employer was hosting the LiVid group's
11 development efforts?
12 A. Yeah. VA has hosted -- VA hosts currently
13 somewhere around I suppose 6,000 open-source projects
14 on our network via sourceforge. Back then, it was a
15 much smaller number of projects. But still it's
16 something we've always felt was our moral obligation,
17 since our company is based on the efforts of these
18 folks.
19 Q. The next sentence of Paragraph 4, you say you
20 "also followed with great attention the related efforts
21 by some individuals and/or groups to 'crack' the CSS
22 code that encrypts the data on DVDs."
23 What individuals or groups were you referring
24 to in that declaration or that paragraph?
25 A. Specifically LiVid; in general, just the
64
1 different efforts out there. It's an interesting
2 problem, so...
3 Q. What to your knowledge were the efforts of the
4 LiVid group to crack the CSS code?
5 A. Reverse engineering.
6 Q. How did you gain that knowledge?
7 A. Just through reading their web site as to what
8 they were doing and how they were going about it.
9 Q. Do you have an understanding of what they were
10 attempting to reverse engineer to crack the CSS?
11 A. Sure. The CSS, the Contents Scrambling
12 System, was the only thing that was keeping the Linux
13 users from being able to watch DVDs under Linux.
14 Because the file system on the DVD was understood.
15 That was no problem. The MPEG encoding mechanism
16 that's used for DVDs, again, it's understood. There
17 are already players out there.
18 The only thing standing in our way was this
19 inability to read the data off the disks. So that was
20 keeping people from being able to play their DVDs on
21 their laptops or desktops, whatever.
22 Q. To your knowledge, were there attempts by the
23 LiVid group to reverse engineer particular DVD players?
24 A. As far as particular DVD players, I didn't get
25 that deep into it. It was our stated goal to reverse
65
1 engineer CSS. So they had to do that to do what they
2 wanted to do.
3 Q. And where did you first hear about or read
4 about that stated goal?
5 A. I believe it was on their web site. But
6 again, this was a long time ago.
7 Q. How long ago do you first recall reading about
8 this stated goal of the LiVid group?
9 A. Well, I think when they -- everyone was
10 talking about how DVD under Linux was a good thing that
11 needed to get done, right? So two groups were formed
12 specifically, and that was LiVid and LS -- LSVideo or
13 LS --
14 Q. LSDVD?
15 A. LSDVD, yeah. And I guess the LS one was
16 supposed to be the licensed player, and the LiVid one
17 was the unlicensed player. Again, I'd have to go back.
18 But from what I understood then, and this was
19 about -- I guess about a year ago, maybe a little bit
20 longer. I don't know. I'd have to do some searching
21 on the net to be able to figure that out, to find out
22 when they started their project. Because that would be
23 about when I would have heard about it.
24 Q. How do you know that the LSDVD group was
25 intended to be the licensed group, as you just
66
1 testified?
2 A. I'm not sure. It just seems like that's where
3 it fits in my brain.
4 Q. Do you remember reading about the development
5 efforts of the LSDVD group on a web site somewhere?
6 A. Not really, no.
7 Q. So you have no recollection of where you
8 learned about the LSDVD group's efforts to be licensed
9 as you testified?
10 MR. HERNSTADT: Objection to form. Sorry.
11 Objection to form. I think that misstates the
12 testimony.
13 Go ahead.
14 THE WITNESS: Okay. Again, the one I followed
15 closely was LiVid. I didn't follow the LSDVD. They
16 weren't hosted on our network, frankly. I did care
17 what they were doing, great, whatever, more power to
18 them.
19 Again, I was more interested in what was going
20 on with LiVid. LiVid was the higher-profile project,
21 also.
22 BY MS. MILLER:
23 Q. Do you know the names of any of the
24 individuals involved in the LSDVD project?
25 A. No.
67
1 Q. Do you know the names of any of the
2 individuals involved in the LiVid project?
3 A. I could probably go back and figure it out. I
4 probably know people who were in it, but not off the
5 top of my head, no.
6 MR. HERNSTADT: Off the record.
7 (Discussion had off the record.)
8 BY MS. MILLER:
9 Q. Turning your attention to Paragraph 5 of your
10 declaration, Mr. DiBona, where you refer to the Court's
11 preliminary injunction decision in this case, when was
12 the last time you read that decision?
13 A. Some time ago.
14 Q. Can you give me an approximate time frame? I
15 mean six months ago?
16 A. No. I'd say probably right as I was preparing
17 this document.
18 Q. So around end of April, early May?
19 A. Yeah. Well, it would be before May, because I
20 mean I guess this was filed in very early May, so
21 probably late April.
22 Q. And you haven't read the decision since then?
23 A. No.
24 Q. Didn't read it in preparation for this
25 deposition?
68
1 A. Nope.
2 Q. Now, you say in Paragraph 5 that you are,
3 "aware of the Court's apparent belief that DeCSS poses
4 a great risk of copying by 'pirates' who could use
5 DeCSS to create innumerable, commercially viable
6 infringing digital copies of a DVD movie."
7 What in your mind is a "commercially viable
8 infringing digital copy of a DVD movie"?
9 A. It's worth noting that I was aware of the
10 Court's apparent belief that DeCSS poses that risk, not
11 that I personally agree with it.
12 For me, if you're asking what I -- I guess --
13 what exactly are you asking?
14 Q. I'm asking what you meant when you used the
15 phrase "commercially viable, infringing digital copies
16 of a DVD movie."
17 A. Specifically, I meant that it was worth using
18 the mechanisms of DeCSS to get a copy of the movie
19 versus just going out and spending $20.
20 Frankly, I think people's time is worth more
21 than the trouble of using DeCSS to do large-scale
22 pirating via the net or via backup mechanisms that
23 would lend themselves well to the file size of the
24 DeCSS.
25 I mean from a materials cost alone, you know,
69
1 just bringing the copy of the VOB files, the encrypted
2 VOB files is more costly than buying a DVD. So that's
3 what I meant by commercially viable.
4 MS. MILLER: Could you read back the last
5 answer, please.
6 (The record was read by the Reporter.)
7 BY MS. MILLER:
8 Q. What's your understanding of the materials
9 cost associated with using DeCSS?
10 MR. HERNSTADT: Objection to the form.
11 BY MS. MILLER:
12 Q. As you've used it in the last answer that you
13 just gave.
14 MR. HERNSTADT: Then I object to the compound
15 questions, because he gave several examples. Do you
16 want him to just do one at a time?
17 MS. MILLER: Your objection is noted,
18 Mr. Hernstadt.
19 BY MS. MILLER:
20 Q. But you used the phrase "materials cost."
21 A. So if I wanted to copy Air Force One, for
22 instance, that's about 4 gigabytes of data. To
23 transport 4 gigabytes of data, I either have to have a
24 high-speed network connection that would lend itself
25 well to transmitting that, which would be costly. I'd
70
1 either have to put it on a hard drive and pass that
2 around, and the hard drive to hold that would cost a
3 minimum of $100. I would have to back it up to tape
4 which could handle that size of file, say a DAT or a
5 VXA tape or something, and those would cost a maximum
6 of say 20 to $30 just for the tape itself, not counting
7 the cost of the drive or the machine to run the drive,
8 right?
9 So all these things cost more in my mind than
10 just buying the stupid DVD and having the convenience
11 of being able to play it. And that's not even counting
12 my time, which I billed out pretty expensively, back
13 when I was consulting, so...
14 Q. Okay. We'll come back to that.
15 In Paragraph 6 of your declaration, you say
16 you "have no personal knowledge of anyone using DeCSS
17 to view or copy a DVD." Do you see where I'm reading
18 there?
19 A. Mm-hmm.
20 Q. Okay. But you've just previously testified
21 that when you used DeCSS, it creates a copy of the .VOB
22 files; is that correct?
23 A. Yes.
24 Q. You say that "except for," and continuing
25 reading at Paragraph 6, "a single professional
71
1 demonstration presented by OpenDVD.org at the Atlanta
2 Linux Showcase trade show at which DeCSS was used to
3 play (but not copy) a DVD."
4 When was this Atlanta Linux Showcase trade show
5 that you referred to in Paragraph 6?
6 A. I suppose that would have been October or
7 November of 1999. A short visit to linuxshowcase.org
8 would show you the date of that show.
9 Q. Linuxshowcase.org?
10 A. Yeah.
11 Q. Now, you've already testified that you used
12 DeCSS in conducting tests that you've documented in
13 this declaration, and we'll get to that aspect of your
14 declaration. But does DeCSS in and of itself have any
15 player functionality?
16 A. No.
17 Q. So in this demonstration at the Atlanta Linux
18 Showcase trade show, how was DeCSS used to play a DVD?
19 A. That was probably a misstatement in No. 6. I
20 should have clarified that or actually written that
21 correctly, I should say. It's my assumption they used
22 DeCSS to get the data off of the DVD so they could play
23 it using xmovie or another utility.
24 Q. Do you actually know what utility they used to
25 play it?
72
1 A. I do not.
2 Q. So you're assuming they used xmovie?
3 A. I'm assuming they used xmovie because that's
4 sort of the default VOB player that people would use on
5 their Linux, and it was under Linux. So I knew that
6 they had to use something.
7 That said, it may have been an earlier
8 version of this OMS player we spoke about earlier. I
9 don't know. It's been a while. It may have even been
10 a while when I wrote this.
11 Q. But you don't know at all, in fact, what they
12 used to play the movie at this Atlanta Linux Showcase
13 trade show?
14 A. I'd say that's correct.
15 Q. It's correct that you don't know?
16 A. It's correct that I don't know.
17 Q. But to your understanding, DeCSS only executes
18 under the Windows operating system, correct?
19 MR. HERNSTADT: Objection. Form.
20 BY MS. MILLER:
21 Q. Do you know if they were running the DeCSS
22 program during this demonstration under the Windows
23 operating system?
24 A. It was my impression that they weren't running
25 Windows at all there. So they must have -- if they
73
1 used DeCSS at all, they would have had to have used it
2 prior to the show to make the VOB files decrypted and
3 available.
4 Q. I see. So you're not even sure whether or not
5 they used DeCSS to decrypt the VOB files?
6 A. Now that I think about it, no, I'm not.
7 Q. Okay. So this statement in Paragraph 6 of
8 your declaration that DeCSS was used to play but not
9 copy a DVD, you actually -- as you've testified here
10 today, you have no knowledge of whether or not DeCSS
11 was even used?
12 A. In retrospect, this Paragraph 6 may be -- I
13 should say the last bit of it on from "except" on
14 through "DVD," could possibly be incorrect.
15 Q. Could possibly be incorrect?
16 A. Yeah. It may be appropriate to say that DeCSS
17 was used as part of the process of getting the VOB file
18 which they then played at the show, but again, I can't
19 prove that. I can't state that with any certainty.
20 Q. So is it fair enough to say that as you've
21 just corrected this paragraph in your declaration that
22 you have no personal knowledge of anyone using DeCSS to
23 view or copy a DVD, full stop?
24 A. Yeah. That would be an appropriate way to
25 rewrite that paragraph.
74
1 Q. Paragraph 7, you say you were asked in early
2 April "by counsel for the defendants in this lawsuit to
3 investigate the use by the Linux community - and/or
4 anyone else - of DeCSS in any context, including to
5 view or copy DVDs."
6 Do you the sentence that I have just read?
7 A. Mm-hmm.
8 Q. And then you say, going on in the next
9 sentence, that between April 10th and 20th, you "posted
10 general inquiries about DeCSS-related copying to the
11 Linux, other open-source and 'hacker,' (in the
12 nonpejorative sense...) communities via a variety of
13 mailing lists and websites, including but not limited
14 to the SVLUG and DeCSS mailing lists and the
15 opendvd.org website."
16 Do you see what I've just read?
17 A. (Nods head up and down.)
18 Q. I just want to talk to you about this survey
19 that I just read.
20 What other mailing lists and web sites, first
21 of all, did you post these inquiries besides the two
22 you just mentioned? Because you say "including but not
23 limited to."
24 A As part of this mail, I asked people to
25 forward this around. So it's sort of an assumption
75
1 that they would then pass it around to whomever. I
2 posted it specifically myself to SVLUG and the DeCSS
3 mailing list.
4 Q. And SVLUG is the Silicon Valley Linux Users
5 Group?
6 A. Yes, it is.
7 Q. So personally, you posted it to the SVLUG and
8 the DeCSS mailing list and opendvd.org, those three?
9 A. It should be stated the opendvd.org web site,
10 the system administrator for that web site said he
11 would be putting something up on that web site so
12 people could see my query. I did not personally put
13 that up there.
14 Q. Do you know whether the system administrator
15 ever did? Did you ever check that for yourself?
16 A. I'm pretty sure he did. I didn't actually
17 check myself, but I have no reason to think otherwise.
18 Q. But personally you posted to the SVLUG and
19 the DeCSS mailing list?
20 A. Yes.
21 Q. Now, I believe that you testified just a
22 couple of answers ago that you had asked people to pass
23 this along to other sites. Is that correct?
24 A. Yeah.
25 Q. Do you know if anyone, in fact, did that?
76
1 A. I have no way of knowing for sure.
2 Q. Did anyone ever respond to an e-mail saying,
3 "Hey, I passed this along to X site"?
4 A. No.
5 Q. So you don't know whether, in fact, the
6 inquiry that you posted went anywhere beyond the SVLUG
7 and DeCSS mailing lists?
8 A. That's correct.
9 MS. MILLER: How much time?
10 THE VIDEOGRAPHER: Two minutes.
11 BY MS. MILLER:
12 Q. So besides posting the inquiries to the SVLUG
13 and DeCSS mailing lists, you also reference in the
14 first part of that sentence that you have constant
15 contacts and conversations with members of the Linux
16 community.
17 A. That's correct.
18 Q. Do you see that phrase? So were your constant
19 contacts and conversations with members of the Linux
20 community again part of this survey in addition to the
21 postings that you put on these mailing lists?
22 A. I'd say it's consistent to say that the people
23 who I talked to about this issue, none of them had ever
24 used DeCSS. So I don't know if that answers your
25 question.
77
1 Q. I'm just trying to get a sense of the universe
2 of people that were --
3 A. That saw this query.
4 Q. -- that were the subjects of this general
5 inquiry that you made when you were conducting this
6 survey, let's say, of the use of DeCSS. I'm just
7 trying to get a feel for the population, if you will.
8 A. All right. I spoke with people about this at
9 the different Bay Area Linux Users Groups, BayLUG, the
10 Silicon Valley Linux Users Group, as well. We had an
11 install fest, and I talked with people about it there.
12 I don't want to confuse anyone to make you
13 think it's a professional survey I did. It's cursory
14 at best.
15 MS. MILLER: We will get to that. But I think
16 that's a good time to take a break, because the
17 videographer tells me it's time to change the tape.
18 THE VIDEOGRAPHER: Off the record. This marks
19 the end of videotape 1. The time is 12:03 p.m.
20 (Break taken from 12:03 to 12:09 p.m.)
21 THE VIDEOGRAPHER: On the record, this marks
22 the beginning of videotape No. 2 in the resumption of
23 the deposition of Chris DiBona on July 8, 2000. The
24 time is 12:09 p.m. Please continue.
25 BY MS. MILLER:
78
1 Q. Okay, Mr. DiBona, we were talking before the
2 tape break about Paragraph 7 of your declaration. Now,
3 I take it you're not a statistician; is that correct?
4 MR. HERNSTADT: Object to the form.
5 THE WITNESS: That is correct.
6 BY MS. MILLER:
7 Q. Do you have any training whatsoever in
8 statistics, or did you take any course work in
9 statistics?
10 MR. HERNSTADT: Objection to form.
11 THE WITNESS: I did take a statistics course
12 in school, of course, as well as a discrete math class
13 that dealt with permutations and such. Outside of
14 that, no.
15 BY MS. MILLER:
16 Q. I believe you indicated in your last answer
17 that this survey wasn't intended to be a statistically
18 valid survey.
19 MR. HERNSTADT: Objection to form. That
20 misstates the testimony.
21 Go ahead.
22 THE WITNESS: It was meant more to give a
23 feeling of what technically capable and competent
24 people could do and were doing with DeCSS.
25 BY MS. MILLER:
79
1 Q. Then the universe of technically competent and
2 capable people that you've just testified to, as far as
3 your knowledge, would be limited to the SVLUG and DeCSS
4 mailing lists where you personally posted the
5 inquiries?
6 MR. HERNSTADT: Objection to form.
7 Argumentative.
8 Go ahead. You can answer.
9 THE WITNESS: I don't want to imply that only
10 the people I talked to are technically competent. That
11 would be incorrect.
12 That said, the people that I did query are
13 technically competent. But by no measure did I talk to
14 every single person on the planet who has the technical
15 capability to run DeCSS.
16 BY MS. MILLER:
17 Q. Paragraph 8 in your declaration, you say that
18 approximately 2,000 people responded to your e-mails
19 and postings; is that correct?
20 A. That's actually grammatical error on my part.
21 It's my assumption that about 2,000 people received the
22 e-mail that I sent out specifically myself on the DeCSS
23 and SVLUG mailing lists.
24 Of those, the only two people who replied --
25 well, of those, that's what I speak about in
80
1 Paragraph 8. So I don't want to -- I did not get 2,000
2 responses.
3 Q. That's what I'm trying to make sure that we
4 clarify.
5 A. I should have written that much better.
6 Q. So the best of your recollection is you sent
7 out approximately 2,000 e-mails?
8 A. I sent off one or two e-mails to a list that
9 had a thousand or so members.
10 Q. Gotcha.
11 A. So, yeah.
12 Q. And two people responded?
13 A. Two people responded positively that they had
14 used DeCSS to view DVDs. I got a number of people who
15 replied saying "I've got it but I never used it," or "I
16 never used it." So basically I got back a couple of
17 negatives as well as the two very positive ones here.
18 Q. A couple?
19 A. A few. I'd need to go back and check.
20 Q. Do you still have these e-mail responses?
21 A. I believe I've got them saved. I did have a
22 system crash a couple of months ago, but I believe
23 these are saved. I would have to go back and check to
24 be sure.
25 Q. If you could go back and do that check, I'd
81
1 appreciate it.
2 MS. MILLER: And Mr. Hernstadt, I'd like to
3 call for a production of those e-mails if Mr. DiBona is
4 able to retrieve them.
5 MR. HERNSTADT: Okay. You have that request.
6 I'm sorry, just to clarify, do you also want
7 the one he sent out?
8 MS. MILLER: Love to have it.
9 MR. HERNSTADT: Okay. All the e-mails
10 involved?
11 THE WITNESS: Now, some people did insist on
12 anonymity.
13 MS. MILLER: That's fine. If you want to
14 redact their names or redact their e-mail mailing list,
15 just so you understand, we have a confidentiality
16 stipulation in this case that will allow a party to the
17 lawsuit to protect the identities of individuals whose
18 identities require protection. Mr. Hernstadt knows how
19 to appropriately designate certain things that are
20 confidential.
21 MR. HERNSTADT: A big marker.
22 BY MS. MILLER:
23 Q. Going back to your previous answer to my
24 question, you said that there were a few responses that
25 you got back from people saying they never used it or
82
1 had it but never used it. Again, I don't want to
2 misstate what you said.
3 A. I believe that's accurate. Again, if we go to
4 the process of reduction, we'd know for sure. Because
5 I believe I have them saved in my files.
6 Q The two people that you discussed in
7 Paragraph 8 of your declaration that said they had used
8 DeCSS to view DVDs they had purchased, did they
9 indicate to you how they had viewed the DVDs?
10 A. No.
11 MR. HERNSTADT: You mean other than as set
12 forth in this paragraph?
13 MS. MILLER: Correct.
14 BY MS. MILLER:
15 Q. We've already established that DeCSS in and of
16 itself doesn't allow you to play the movie content.
17 A. That's correct.
18 Q. So they didn't indicate to you how they
19 actually played the movies after they had used DeCSS.
20 That was my question.
21 A. That's correct.
22 Q. Thank you. Then you go on in Paragraph 8 to
23 describe at least some of the "significant problems
24 with playback" that the two people related to you.
25 In Paragraph 9, you state, "There are several
83
1 explanations for the results obtained by these isolated
2 experiments. First, it is technically quite
3 complicated to use DeCSS to copy DVDs."
4 Do you see that statement?
5 A. Yes.
6 Q. When you conducted your experiment on Air
7 Force One using DeCSS, how long did it take you to
8 decrypt the movie file using DeCSS?
9 A. The specific file that I copied off the Air
10 Force One DVD was the trailer, because it was the
11 smallest file. Because I didn't want to sit there and
12 watch 4 gigs get copied. It was about 140 megabytes of
13 data, and it probably took about 5 to 10 minutes to
14 copy off the DVD. Actually, it was probably less than
15 that. I could time it, if, you know, it is needed for
16 this.
17 But the technical difficulties I talk about
18 here, to go from the DVD to playing it on Linux, you
19 know, first you need DeCSS to copy the file. Then you
20 need to get that file on over onto your Linux machine.
21 Then you need to play that file using xmovie. So
22 that's what I mean by "technical difficulty" there.
23 Q. Based on what you said, that it took you 5 to
24 10 minutes to copy the trailer file from Air Force
25 One --
84
1 A. I'm not certain about that time.
2 Q. Okay. But that's your best recollection?
3 A. It's a guess. I mean, again, depending on
4 your hardware also, that's going to change. If you
5 have a faster DVD player and a faster CPU than I have
6 on my laptop, that changes completely.
7 Q. But you already told us what CPU you're
8 running on your laptop; you already told us what the
9 configuration of your computer is, correct?
10 A. I'm not certain I told you the CPU speed.
11 Q. I'm sorry. I stand corrected.
12 Can you tell me what the CPU speed is?
13 A. I believe its a 400 megahertz CPU.
14 MR. HERNSTADT: Really?
15 THE WITNESS: Yeah.
16 MR. HERNSTADT: Got to upgrade, dude.
17 BY MS. MILLER:
18 Q. You told us the RAM, but you're correct, you
19 did not tell us the CPU part.
20 A. Right.
21 Q. So the actual process in your experiment in
22 using DeCSS, the process of using DeCSS itself, would
23 you characterize that as complicated?
24 A. Not for a somewhat experienced computer user.
25 I should also note when I say -- I think part
85
1 of what I meant in this "technically quite complicated
2 to use DeCSS" portion in Paragraph 9 is I also mean
3 that, and I state it later, it's not just the process
4 of getting the video to start playing under Linux from
5 DVD to that. It also means what the computer has to
6 do. And I state that somewhat later there in that
7 paragraph about the CPU and memory demands of playing
8 back videos.
9 Because specifically Paragraph 9, it's talking
10 about the results that those individuals had and
11 specifically their video and audio problems and why
12 those problems exist.
13 So it shouldn't be taken out of context.
14 Q. Okay.
15 A. So while it's not that hard to go from the VOB
16 file encrypted on the DVD drive to playing it, the
17 steps involved there can be somewhat demanding on the
18 machinery. So that should be said.
19 Q. And I understand all of that, and thank you
20 for that explanation.
21 But what I'm trying to get to really, though,
22 is your statement where you say "it's technically quite
23 complicated to use DeCSS." By that statement, were you
24 meaning the actual running of the DeCSS utility itself
25 or the additional steps after that leading up to
86
1 playing the movie?
2 A. I meant the entire process.
3 Q. The entire process. Okay. I understand.
4 A. Holistically.
5 Q. Gestalt.
6 Now, at the end of Paragraph 9, in giving an
7 explanation why the resulting video quality is very
8 poor, as you characterize it, after using the DeCSS
9 utility to decrypt a movie, you state as one of the
10 reasons that "the developers of the DeCSS application
11 were unable to enlist the help of any hardware decoder
12 that may exist on the video card."
13 Do you see where I've just read?
14 A. Mm-hmm.
15 Q. Who were the developers of the DeCSS
16 application, to your knowledge?
17 A. The Masters of Reverse Engineering in Germany,
18 or I should say Europe, because they spread across a
19 number of different developers.
20 But in fact, this sentence is flawed, because,
21 again, the DeCSS application doesn't do the playing.
22 It's more accurate to say that the people who wrote the
23 MPEG playing software, since they didn't have access to
24 the chip on the video card that allows for fast MPEG
25 decoding, that's why the video quality is poor. It
87
1 really has nothing do with DeCSS. That's an inaccurate
2 statement.
3 Q. That's what I was trying to understand.
4 Have you had any conversations with any of the
5 members of the Masters of Reverse Engineering?
6 A. I traded a few e-mails with Jon Johansen, but
7 they were trivial.
8 Q. How long ago was this e-mail exchanged with
9 Jon Johansen?
10 A. That's a good question. Two or three months,
11 four months.
12 Q. Two to three months ago?
13 A. Two to four months ago.
14 Q. And you say they were trivial. What were the
15 substance of the e-mail communications?
16 A. I believe one of them was a reporter wanted
17 his contact information, and I forwarded that
18 information to Jon. I think that's the -- pretty much
19 the nature of our discussions. They weren't of a
20 technical nature at all.
21 Q. Do you still have those e-mails saved
22 anywhere?
23 A. It's likely I do.
24 MS. MILLER: Mr. Hernstadt, I'd like to call
25 for the production of those e-mails to the extent
88
1 Mr. DiBona is able to retrieve them.
2 MR. HERNSTADT: Okay. Taken under
3 advisement.
4 BY MS. MILLER:
5 Q. Paragraph 10 of your declaration, you say in
6 the first sentence, "Except under a very specific and
7 unusual set of circumstances (I am hypothesizing that
8 such circumstances are possible, since as far as I am
9 aware, it hasn't yet been done), it is also nearly
10 impossible to enjoy a DVD played through DeCSS because
11 of the syncing problems that make movies appear like
12 dubbed martial arts films."
13 Now, you've testified earlier that DeCSS
14 doesn't actually play a DVD, correct?
15 A. That's correct.
16 Q. So what did you mean by the statement in the
17 first sentence of Paragraph 10?
18 A. If you were to replace DeCSS with a playing
19 program under Linux, that's exactly what I meant.
20 DeCSS is, again, just a mechanism to provide
21 the file, as we know. So an accurate way of stating
22 this sentence would be to say, "Except under a very
23 specific and unusual set of circumstances," and so on,
24 "it's impossible to enjoy a DVD played through xmovie,"
25 for instance, or any other player programs that may
89
1 exist because they would have the same syncing
2 problems.
3 Q. But you personally have only attempted to play
4 a movie that you've decrypted using DeCSS through
5 xmovie --
6 A. Yes.
7 Q. -- is that correct?
8 A. That is correct.
9 Q. You've not used any other player programs to
10 attempt to --
11 A. I haven't used any other player programs under
12 Linux. I have watched using the Mediamatics program
13 that came with the laptop.
14 THE REPORTER: I'm sorry?
15 THE WITNESS: I'm sorry. The Mediamatics,
16 M-E-D-I-A-M-A-T-I-C-S.
17 BY MS. MILLER:
18 Q. In the next sentence in Paragraph 10, you
19 say, "When one combines the poor playback quality
20 created by these technical difficulties with the
21 exceptionally large size of the data files, which makes
22 the copying and distribution of decrypted versions of
23 movies from a DVD so costly and complicated as to be
24 unfeasible, it is clear that DeCSS is not a useful tool
25 for the piracy, let alone viewing, of DVDs."
90
1 What is your definition of "piracy," or how
2 were you using the word "piracy" in that sentence?
3 A. I'd say that piracy would be the co-opting
4 of -- in this case, where I'm specifically talking
5 about movies, right, taking movies and using them in
6 such a way that isn't -- that isn't legitimate
7 according to the license granted to you when you
8 purchase the DVD, not contradicting fair use. Not
9 contradicting fair use.
10 Q. What's your understanding of the license
11 that's granted when you purchase a DVD, as you've just
12 used the phrase?
13 MR. HERNSTADT: Objection to the form, and
14 also objection to this line of questioning insofar as
15 it seeks legal opinions or the legal conclusions from
16 Mr. DiBona, who is not a lawyer.
17 MS. MILLER: Mr. DiBona just made a statement
18 about his understanding of the license that is granted
19 when a DVD is purchased. I'd like to explore what he
20 meant by that statement.
21 I'm not asking for a legal conclusion. I
22 understand you're not a lawyer.
23 MR. HERNSTADT: I'm just making the record.
24 THE WITNESS: It's my understanding derived
25 from when you hit play on a DVD, you're given that FBI
91
1 warning, I guess it's Federal Code 701-dot-something,
2 which I am completely not sure of what that dot is, and
3 it specifically says that these are for noncommercial
4 use, meaning probably that I can't show it in a large
5 movie theater to 20 people and charge them entering,
6 but that it's for home use and for my own use.
7 So my idea of fair use is I should be able to
8 take this DVD, which I have paid good money for, watch
9 it myself, my family, friends who are over, freely. I
10 should be able to take it on planes, watch it there. I
11 should be able to make a copy onto another media and
12 watch it that way, if I so chose. Because I've paid
13 for that privilege.
14 So that's my idea of what fair use is.
15 BY MS. MILLER:
16 Q. I understand. But I want to go back to my
17 original question, because I didn't ask you for your
18 understanding of fair use. I asked you for your
19 understanding of the word "piracy" which you've used in
20 Paragraph 10.
21 If I understand your answer, and I don't mean
22 to misstate it, I believe you said that piracy,
23 according to your definition, is co-opting, as used in
24 this case, a movie file and using it for purposes other
25 than the license that's granted when you purchased the
92
1 movie.
2 Is that what I understood your answer to be?
3 THE WITNESS: No.
4 MR. HERNSTADT: Let me object. This is why
5 when you have lay people stating their understandings
6 of legal situations that you run into problems.
7 I'll -- I mean Mr. DiBona, you should answer
8 the question to the best of your ability, but I have to
9 direct you not to make any kind of a legal conclusion
10 or legal statement about the meaning of a license or
11 entering into a license or anything like that.
12 THE WITNESS: Okay.
13 BY MS. MILLER:
14 Q. Okay, Mr. Hernstadt's objection is noted, and
15 again I just want to restate I'm just trying to
16 understand your understanding of piracy as you've used
17 the word in Paragraph 10 of your declaration.
18 So actually, I'd like to ask the court
19 reporter to go back and read your original answer, and
20 then we can just go from there. I understand there has
21 been a lot of objecting, and I just want to make sure
22 we have a very clear record.
23 (The record was read by the Reporter.)
24 THE WITNESS: So your question exactly is what
25 I consider piracy?
93
1 BY MS. MILLER:
2 Q. Right. And you've answered that question.
3 Now, as you've used the phrase in your answer,
4 what are the other ways in which a person might co-opt
5 a movie that's not consistent with your understanding
6 as you testified to of the license that's granted when
7 you purchase the movie?
8 MR. HERNSTADT: Objection to form and
9 objection to that part that calls for legal conclusion
10 or is based upon a legal conclusion.
11 But go ahead.
12 THE WITNESS: From what I understand your
13 question to be, and I'm not trying to be difficult,
14 honestly, from what I understand your question to be,
15 I'd say that what I consider piracy would be if
16 somebody were to take a DVD to take it to a stamping
17 plant without authorization or on order of any company,
18 to make copies of it and then sell it on a street
19 corner, a stamping plant being a company that can copy
20 DVDs just using a glass master.
21 BY MS. MILLER:
22 Q. I understand.
23 A. That's one definition absolutely of piracy.
24 And it's extremely clear to me that that's clearly
25 piracy.
94
1 If somebody were to take that DVD and record
2 it using a bank of VHS video machines and sell those
3 tapes, again, on a street corner or through other
4 mechanisms, again, that would be piracy. Very clearly
5 so.
6 If somebody were to take that DVD and make a
7 copy and sell it to someone else while retaining the
8 copy of the DVD, again, that would be piracy.
9 So those are ways that I see that -- that's
10 piracy in my definition.
11 Now, if somebody were to use DeCSS to make a
12 copy of the VOB files and to sell them some way over
13 the internet, that would again be piracy, or to make
14 them available to the people who would then sell them,
15 not by permission of the original copyright holder,
16 that would clearly be piracy to me.
17 Q. So your definition of piracy as you've used it
18 seems to me to always include selling of unauthorized
19 copies.
20 A. Not necessarily.
21 MR. HERNSTADT: Object to the form.
22 Go ahead.
23 THE WITNESS: If somebody were to -- if
24 somebody were to go to the internet and find some VOB
25 file, not that I've found people doing this, I'm not
95
1 asserting that's possible, but with that caveat stated,
2 if somebody were to download a copy of a movie that
3 they didn't pay for and save it and watch it, that
4 would clearly be piracy. Absolutely.
5 Then you have sort of gray areas; for
6 instance, a library. They just want to preserve art
7 for the rest of our times. Well, that would be a
8 different story in my mind.
9 Q. Sure.
10 A. I may have a more liberal idea about that
11 than, say, Time Warner.
12 If it was a teacher who was having a class in,
13 say, media criticisms and they wanted to show Citizen
14 Kane and it's on a web site and they downloaded a
15 little clip of it, I wouldn't consider that piracy,
16 either. I would consider that fair use, sort of very
17 traditional fair use.
18 That's my very long answer.
19 MS. MILLER: Thank you. I appreciate that.
20 MR. HERNSTADT: I think it goes without saying
21 that Mr. DiBona is not our expert on the legal
22 definition of piracy.
23 MS. MILLER: It certainly does. It certainly
24 does. I wouldn't think we would need a legal expert on
25 the definition of piracy. But again, I just want to
96
1 explore Mr. DiBona's uses of these terms in his
2 declaration.
3 THE WITNESS: And while I'm certain that this
4 will be brought up in other venues, No. 10 is not
5 necessarily about -- it's meant to stress how not so
6 great it is and not enjoyable it is to watch videos
7 this way. I mean that was one of the points of this
8 thing here.
9 I didn't want it to get lost in the
10 translation.
11 BY MS. MILLER:
12 Q. Okay. Now, in your view, Mr. DiBona, do you
13 feel that it's any less injurious to a copyright
14 holder's rights that bad unauthorized copies of their
15 copyrighted works are being distributed to the public?
16 MR. HERNSTADT: Objection to the form of the
17 question.
18 If you understand that, you can answer it.
19 THE WITNESS: I think the quality has nothing
20 to do with the argument, frankly.
21 BY MS. MILLER:
22 Q. So the quality of the pirated copy --
23 A. It can be awesome; it can be terrible. I
24 don't think the quality has much to do with piracy.
25 Q. Thank you. That's what I was trying to
97
1 understand.
2 Let's move on to Paragraph 11, actually
3 Paragraph 11 and 12, and I think we can kind of just go
4 through this quickly because we already talked about
5 this, your actual experiment using DeCSS.
6 So you've already told me that in your
7 experiment, you used Air Force One, and you attempted
8 to decrypt the trailer file, which was the smallest
9 file that you were able to ascertain on this DVD.
10 Going towards the end, the penultimate
11 sentence in Paragraph 11 of your declaration, you say
12 "The only DVD player program I had on my computer
13 refused to play any of the VOB files I had copied
14 directly off the hard drive."
15 What was this DVD player program that you were
16 employing at this point in your test?
17 A. I think to clarify this would make it make
18 sense. Under Windows, the DVD player program that I
19 had was Mediamatics, which was the licensed player.
20 That said, on my computer, on the Linux side
21 of things, I had xmovie.
22 So I should have been more clear there.
23 Q. Are you say that Mediamatics --
24 A. Would not play.
25 Q. -- would not play?
98
1 A. Would not play directly, yeah, off the hard
2 drive.
3 Q. What result did you get when you tried to play
4 the movie off the hard drive using Mediamatics? What
5 did it tell you? Did you get an error message? What
6 happened?
7 A. I'll be honest with you. I don't remember.
8 I'd need to go back and look. I don't think it was an
9 error message. I think it just did not do that.
10 Q. Just didn't do anything?
11 A. Yeah. It wouldn't let me go to this file.
12 Again, I'm not sure. I'd have to check.
13 Q. But you previously testified -- again, I don't
14 mean to misstate your testimony. I'm just trying to
15 move through it -- that when you conducted this
16 experiment, you actually had just installed Microsoft
17 Windows on your laptop?
18 A. Mm-hmm.
19 Q. At that point, how did you obtain the
20 Mediamatics player?
21 A. The Mediamatics player came with the DVD
22 drive. So it was just a matter of installing that after
23 installing Windows.
24 Q. Now, in performing this test, did you attempt
25 to, first of all, use the Mediamatics player on just
99
1 running the Air Force One movie to initially ascertain
2 whether or not, in fact, the player worked, period?
3 A. Yeah. I had tried it on a previous session.
4 I mean I had shut the machine down and brought it back
5 up before doing this. But yes, Mediamatics worked fine
6 on regular DVDs.
7 Q. That's what I wanted to clarify, that that
8 step had actually been performed in your test.
9 So you used the Mediamatics player, you
10 confirmed that it did, in fact, run Air Force One off
11 of the DVD disk from the DVD player.
12 A. Yes.
13 Q. Then when you attempted to copy or when you
14 did copy the trailer file using DeCSS onto your hard
15 drive, you then attempted to use the Mediamatics player
16 to play that unencrypted movie content off of the hard
17 drive, and nothing happened?
18 A. And nothing happened.
19 MR. HERNSTADT: I'm sorry, "unencrypted" or
20 "encrypted"?
21 THE WITNESS: The decrypted VOB file.
22 BY MS. MILLER:
23 Q. That was the result of your running DeCSS?
24 A. Yes.
25 Q. Gotcha. Thank you.
100
1 In the last sentence of Paragraph 11, you say,
2 "I was unable to find a program under Windows that
3 would play the VOB file."
4 There is a bit of an ambiguity in that
5 sentence I wanted to explore and make sure I
6 understand. When you say you were unable to find a
7 program under Windows does, that mean you were unable
8 to locate one or you located one and it still wouldn't
9 play?
10 A. I did not do an exhaustive survey of all of
11 the DVD player programs under Windows. I did try
12 another commercial program called PowerDVD to try to
13 play the VOB file that was decrypted using DeCSS. I
14 tried to find a VOB player that would work under
15 Windows. I did not find one, but again, it was a
16 cursory search. It wasn't a comprehensive survey of
17 all the programs that could possibly do this.
18 Q. Okay.
19 A. Just from a short excursion on the net and
20 trying to find programs that would play VOB files under
21 Windows off of a hard drive, I was unable to do so. So
22 there you go.
23 Q. But you did locate the PowerDVD player?
24 A. Yes.
25 Q. And you used that?
101
1 A. And it was unable to read the VOB file. It
2 was able to play a DVD off the DVD drive. It was
3 unable to play the decrypted VOB off of the hard drive.
4 Q. And in Paragraph 12 of your declaration is
5 when you describe then using the Linux utility
6 xmovie --
7 A. Mm-hmm.
8 Q. -- to play the VOB file that you had decrypted
9 using DeCSS; is that correct?
10 A. Yes.
11 Q. And you say with -- I'm sorry, let's just
12 quote from the second sentence from Paragraph 12:
13 "My experience was that with some
14 tweaking I was able to watch the VOB file,
15 but that the video quality was very poor,
16 showing a lot of stuttering and with a great
17 deal of artifacts, and the sound, while
18 clear enough, was not synchronized with
19 the picture very well."
20 Do you see the sentence that I just read?
21 A. Yes, I do.
22 Q. Do you know whether or not the quality
23 problems that you experienced were related to the
24 xmovie player application --
25 MR. HERNSTADT: Objection to form.
102
1 BY MS. MILLER:
2 Q. -- or to DeCSS?
3 A. I think it had nothing to do with DeCSS and
4 everything to do with the system performance of my
5 laptop and xmovie's code.
6 Q. Do you know whether xmovie is a CSS licensed
7 player application?
8 A. Xmovie is specifically designed to play back
9 MPEG files, so it doesn't need a CSS license. It's not
10 designed specifically for DVDs.
11 Q. I see. I believe you testified earlier,
12 Mr. DiBona, that you had read some of the other
13 declarations in this case; is that correct?
14 A. It's been some time, but yes.
15 Q. Have you read any declarations in this case in
16 the last month concerning experiments that other
17 individuals had done in playing back movies that have
18 been decrypted using DeCSS?
19 A. No, I have not.
20 Q. You have not read any of the other
21 declarations?
22 A. Not in the last month.
23 MR. HERNSTADT: Do you want to specify?
24 MS. MILLER: I'll get there.
25 MR. HERNSTADT: Okay.
103
1 BY MS. MILLER:
2 Q. So it's fair to say from your last answer that
3 you have not read any of the declarations of Robert
4 Schumann related to his experimentation in playing back
5 movies that have been decrypted using DeCSS?
6 A. That's right.
7 Q. Now, other than the experiment that you
8 conducted on the movie Air Force One in trying to run
9 or -- excuse me, in trying to play a decrypted movie
10 file after using the DeCSS utility, have you heard of
11 anyone else's experience in conducting the same sort of
12 experiment apart from the two people that responded to
13 your e-mail messages and postings about using DeCSS?
14 A. No.
15 Q. Would it surprise you to learn that other
16 people that had decrypted movies using DeCSS the same
17 way that you did were able to run
18 commercially-available DVD player software under
19 Windows and play the movies that were decrypted?
20 MR. HERNSTADT: Objection to the form.
21 THE WITNESS: Honestly it wouldn't surprise
22 me, because -- it just wouldn't surprise me that
23 somebody would have a commercial player that would just
24 also work for that kind of thing.
25 BY MS. MILLER:
104
1 Q. In Paragraph 14 of your declaration, you said:
2 "Given the many problems and costs
3 associated with using DeCSS, especially
4 compared to the low price of buying or renting
5 a DVD and the fact that new Windows and Apple
6 computers increasingly provide a DVD player as
7 standard equipment, it is my opinion that the
8 only real commercial value in DeCSS is as part
9 of the reverse engineering of an open-source
10 DVD player and not at all as a tool for
11 commercial piracy."
12 Is that an accurate quotation from
13 Paragraph 14 that I just read?
14 A. Yes.
15 Q. If you know, how was DeCSS part of the reverse
16 engineering efforts for an open-source DVD player?
17 A. How is it --
18 Q. How is DeCSS used as part of the reverse
19 engineering efforts for an open-source DVD player?
20 A. I see. If DeCSS is the only way to get the
21 file that people can use to play DVD movies -- hmm.
22 That's not the right way to answer that.
23 DeCSS is viable for an open-source DVD player
24 in that it's really an implementation of the -- you can
25 see it as sort of a roadmap on how to read the DVD
105
1 drives. So that right there is useful in that, since
2 DeCSS source code is conceivably available, in that
3 that makes it easier to write other open-source DVD
4 players.
5 So that's in my mind how DeCSS itself is
6 valuable as a reverse engineering tool. But really
7 DeCSS is more of a result of reverse engineering in my
8 mind.
9 Q. Than a reverse engineering tool in and of
10 itself.
11 A. Right.
12 Q. So you don't know, in fact, if DeCSS was used
13 as part of the reverse engineering of the open-source
14 DVD player as you stated in Paragraph 14 of your
15 declaration?
16 MR. HERNSTADT: Objection as to form.
17 THE WITNESS: Well, what I say in 14 here is I
18 say, "It is my opinion that the only real commercial
19 value in DeCSS is as part of the reverse engineering of
20 an open-source DVD player."
21 That's not to say that I don't think it was
22 used. You know what I'm saying?
23 MS. MILLER: That's what I'm trying to
24 understand.
25 THE WITNESS: What I'm saying here is the real
106
1 commercial value of DeCSS is the real commercial value
2 of having open-source DVD players in that having
3 open-source DVD players means that more DVD players can
4 be sold and used; therefore, leading to more DVDs being
5 sold and used. So that's what I meant by that
6 sentence. I know I could have written that a lot
7 better, but yeah. As far as the value of DeCSS as a
8 tool of reverse engineering, I already stated that.
9 So I don't know if that answers your question,
10 but that's what it was meant to say.
11 BY MS MILLER:
12 Q. Why don't we try it a different way.
13 A. Okay.
14 Q. I believe you mentioned in the first part of
15 your answer that DeCSS source code is available on the
16 internet. Do you actually know whether or not the
17 DeCSS source code was utilized in any of the
18 open-source DVD player projects that you're aware of
19 that were under development?
20 MR. HERNSTADT: Objection to form.
21 THE WITNESS: I have no way of knowing for
22 sure. It could have happened. I don't know.
23 BY MS. MILLER:
24 Q. So it's an assumption that you made that
25 looking at the DeCSS source code would allow someone
107
1 that's working on a Linux DVD player development
2 project to understand more about how CSS works?
3 A. More a Linux development project working on a
4 DVD player seeing this code, it would certainly help
5 them in writing their own. So yes. That's not saying
6 it happened.
7 Q. But you don't know one way or the other
8 whether it happened or not?
9 A. Yes. I'm not part of those teams, so...
10 MR. HERNSTADT: Can we stop for two minutes,
11 please, go off the record?
12 MS. MILLER: You just want to make a phone
13 call?
14 MR. HERNSTADT: Yeah.
15 THE VIDEOGRAPHER: Off the record, the time is
16 12:50 p.m.
17 (Discussion had off the record.)
18 (Break taken from 12:50 to 1:10 p.m.)
19 (Due to a computer malfunction, the transcript
20 continues on the following page.)
21 /////
22 /////
23 /////
24 /////
25 /////
108
1 THE VIDEOGRAPHER: On the record. The time
2 is 1:10 p.m. Please continue.
3 BY MS. MILLER:
4 Q. In Paragraph 15 of your declaration,
5 Mr. DiBona, you draw the conclusion that "DeCSS seems
6 to me to have been created as an exercise in cryptology
7 and the result of intellectual curiosity and
8 experimentation by a handful of extremely sophisticated
9 computer experts."
10 What was the basis for that statement in your
11 declaration?
12 A. The reason I said that was because, since the
13 result of the DeCSS couldn't be played in a way that I
14 considered enjoyable, that the reasoning behind DeCSS
15 would be more as, hey, look at this great program that
16 we've written. It's more -- in my mind, DeCSS is more
17 about we've actually beaten this problem. It's sort of
18 like they had an eye towards beating the problem, and
19 not towards -- you can't play these files very well.
20 They don't look good. They look terrible. So you
21 can't enjoy the output. So to them, the journey was
22 the joy. And so that's where that statement comes
23 from.
24 Q. But Mr. DiBona, you also just testified that
25 the enjoyability of the files, at least in the
109
1 experiment you did, seemed more to be related to the
2 player that was used; is that correct?
3 A. Sure. But that doesn't necessarily mean that
4 the people who wrote DeCSS were ignorant of that
5 situation. It's not out of hand for me to think that
6 they went about this as an intellectual exercise
7 specifically for that intellectual exercise and not
8 specifically for the DVD player.
9 They wanted to make a name for themselves.
10 They wanted to do this because nobody had done it
11 before outside of the licensed players where it was
12 easy to do, right? In my mind, this was more of a
13 result of their intellectual curiosity rather than they
14 wanted to watch a movie.
15 Q. But you've never spoken to any of the creators
16 of the DeCSS?
17 A. No. This was an assumption based on what I
18 know about people in this community.
19 Q. Is it fair to say, then, that in Paragraph 15,
20 the first sentence is basically just an assumption or
21 your part?
22 A. Sure. It's what I'm here for.
23 Q. Now going on in Paragraph 15, you say "Once
24 open-source DVD players have been established, DeCSS'
25 only value will be as an interesting utility to be
110
1 examined by academics, scholars, engineers,
2 programmers, cryptologists, and the like."
3 Now, in the examinations by these various
4 groups that you referred to, are you assuming that this
5 examination will be done of the DeCSS source code?
6 MR. HERNSTADT: Objection to form.
7 BY MS. MILLER:
8 Q. What did you mean by "DeCSS' only value will
9 be as an interesting utility to be examined"?
10 MR. HERNSTADT: Objection. Form. It says
11 what it says.
12 You can answer.
13 THE WITNESS: I'm saying that basically DeCSS'
14 value as a utility will be mitigated by the fact that
15 once we have real open-source players, we won't need
16 DeCSS. DeCSS is an interim step, in my mind, until we
17 have fully-featured players under Linux.
18 BY MS. MILLER:
19 Q. Is this academic value that you've referred to
20 in Paragraph 15 of your declaration, though, is that
21 satisfied by the DeCSS utility in its executable form
22 or in its source code form, is what I'm trying to
23 understand.
24 MR. HERNSTADT: Objection to form.
25 THE WITNESS: In my mind, if I wanted to learn
111
1 something from the program, I could do it in either
2 form. I mean whether I go through the executable, you
3 know, fine-tooth hex editor or if I were to look at its
4 source code, I would learn from either one of them.
5 So yes. One or the other. Wouldn't matter to
6 me. I could learn from either of them.
7 BY MS. MILLER:
8 Q. I just have a couple of questions about your
9 continuing experimentation with the Mediamatics player
10 that you describe in Paragraphs 16 through 19 --
11 A. Okay.
12 Q. -- of your declaration. Again, I'm just
13 trying to move through this. I don't mean to
14 mischaracterize what's in your declaration, because it
15 says what it says.
16 But what I want to understand is you talk
17 about using the Mediamatics DVD playing program and
18 running a movie under the Windows operating system, and
19 then you describe in Paragraph 17 the fact that one can
20 copy data off of the DVD disk and use the Mediamatics
21 program as a "DeCSS equivalent."
22 Do you see that statement in Paragraph 17?
23 A. Yes, I do.
24 Q. Now in Paragraph 18, you describe I assume
25 your use of the same movie, Air Force One, because you
112
1 make a reference here to Harrison Ford.
2 A. Yes.
3 Q. Is that correct? So you're using Air Force
4 One again to perform this experiment. You say in
5 Paragraph 18, "Using Windows' file manager, I
6 copied" -- "I then copied," excuse me, "two of the VOB
7 files on the Disk to the hard drive. Prior to my
8 playing the movie (and the concomitant unlocking of the
9 DVD Drive by the mediamatics player) I was unable to
10 copy the same VOB files."
11 Now, were the VOB files that you copied in
12 this experiment on the hard drive of your computer, did
13 they remain encrypted or were they unencrypted?
14 A. They remained encrypted.
15 Q. Did you perform any additional experiments on
16 these encrypted files? In other words, just to state
17 it simply, did you try to play the movie files that
18 were encrypted on the hard drive that you had copied --
19 A. Yes, I did.
20 Q. -- in this test?
21 Using which player?
22 A. I tried the Mediamatics player, the PowerDVD
23 player and the xmovie player. None of them were able
24 to play the files.
25 Q. So Mediamatics player, PowerDVD and xmovie
113
1 were the three that you tried?
2 A. Yes.
3 Q. And none of these three players were able to
4 play the encrypted movie files from your hard drive; is
5 that correct?
6 A. That's correct.
7 Q. Did you get any specific error messages from
8 any of these three players?
9 A. I didn't write any of them down. With
10 PowerDVD and Mediamatics, I was unable to even load
11 them.
12 With xmovie, it gave me an error message. It
13 said unable to find some volume thing. Again, I'd have
14 to do it again. It sounded like a file error. Because
15 it was encrypted, it couldn't read it, so...
16 Q. Okay. But as you've previously testified,
17 when you ran DeCSS on the movie trailer file for Air
18 Force One, you actually were able to create an
19 unencrypted movie file on your hard drive; is that
20 correct?
21 A. That's correct.
22 Q. So in that regard, is this process that you
23 performed using the Mediamatics player truly a DeCSS
24 equivalent?
25 A. In my mind, it is an equivalent when it comes
114
1 to copying the data off of it. It is obviously not
2 when it comes to decrypting it. So I should have been
3 more clear there.
4 Q. That's what I'm trying to understand. Thank
5 you.
6 A. Yeah. No problem.
7 Q. In Paragraph 20 of your declaration, you say,
8 "It should be clear" -- strike that. "It should be
9 clear that the DeCSS program by itself is not necessary
10 to get the data files off the DVD. The design of the
11 protocol makes DeCSS redundant for that purpose."
12 What protocol were you referring to in that
13 sentence that I just read to you, Mr. DiBona?
14 A. The transactional protocol that the Contents
15 Scrambling System uses to lock the DVD drive.
16 Q. I'm sorry, are you just referring to the fact
17 that the transactional protocol of CSS unlocks the DVD
18 drive in the same way that DeCSS also allows you to
19 unlock the DVD drive?
20 A. More appropriately stated, a licensed player
21 playing a DVD has to go through the same processes as
22 DeCSS --
23 Q. To unlock the DVD drive?
24 A. -- to unlock the drive, yes.
25 Q. Then the last sentence of your declaration in
115
1 Paragraph 20, you state that "The design of the DVD
2 copy protection is flawed in such a way as to
3 invalidate any assertion that CSS is a copy protection
4 mechanism, since I can use the tools designed for it
5 and licensed by the MPAA/DVD-CCA to copy VOB files."
6 A. Mm-hmm.
7 Q. Now, you're obviously technically proficient
8 in computer systems, correct?
9 A. I'd like to think so.
10 Q. Would you think that someone that's not
11 technically proficient would be able to perform the
12 same tests that you did in copying VOB files to their
13 hard drives from in the mechanisms in the CSS licensed
14 player?
15 A. In an encrypted form?
16 Q. Yes.
17 A. After knowing it was possible, yes. Before
18 knowing it was possible, it's likely if they wanted to
19 copy these files off, they would have eventually found
20 this way, so...
21 Q. And how would they have eventually found this
22 way?
23 A. Same way that I did.
24 My goal when I was doing this was to say,
25 okay, where are the holes in this process that would
116
1 allow for these kinds of mechanisms, these sorts of
2 things to occur, copying the files off the disk without
3 a licensed player or with a licensed player in a way
4 that's not -- say, you know, given the informater
5 (phonetic) of the MPAA or DVD-CCA.
6 And so if you think along those lines, this
7 sort of think popped up pretty quickly. I didn't have
8 to think for weeks to figure this out. It really took
9 minutes. I said, well, if I want to do it, it's likely
10 that in the process of watching the movie it unlocks
11 the drive; therefore, I should be able to copy the
12 files off of the drive after it's been unlocked, and
13 that's what led to this. It was really that simple.
14 Q. Okay. But then in Paragraph 21, you state in
15 the last sentence again, "It may even be possible to
16 make a CSS-equipped DVD player run the encrypted VOB
17 files directly off a hard drive without the benefit of
18 any assisting software."
19 MR. HERNSTADT: Objection.
20 Go ahead. Are you done?
21 MS. MILLER: I'm done reading. Do you have
22 any objection to what I've just read?
23 MR. HERNSTADT: No. I'll wait.
24 BY MS. MILLER:
25 Q. Is that an accurate reading of the last
117
1 sentence of Paragraph 21?
2 A. That is exactly what I wrote, yes.
3 MR. HERNSTADT: Objection to form.
4 THE WITNESS: Yes, that's accurate.
5 BY MS. MILLER:
6 Q. What is the basis for that statement that I've
7 just read to you, Mr. DiBona?
8 A. I am basically assuming that there exists a
9 licensed player where they did not make the check to
10 see if they're reading it from the hard drive or if
11 they're reading it from the DVD ROM player.
12 I'm assuming that somewhere in the 40-plus
13 players out there that a programmer was lazy and said
14 to himself, "I don't need to do this check." And I
15 think that's extremely likely, because I've seen that
16 happen in other situations where people are supposed to
17 follow a specification and they just do a shortcut to
18 get the job done faster.
19 Q. But you don't know that?
20 A. No. I would have to do a comprehensive survey
21 of all the files before I'd find that. But I'm saying
22 it's likely in this sentence.
23 Q. But you have not done that comprehensive --
24 A. No, I have not done --
25 Q. -- survey of the 40-or-so-plus licensed CSS
118
1 players out there; is that correct?
2 A. That is correct.
3 MS. MILLER: Okay. Just give me one second.
4 Can we go off the record for two minutes, and I can
5 check my notes because I think I'm about done.
6 THE VIDEOGRAPHER: Off the record, the time is
7 1:25 p.m.
8 (Break taken from 1:25 to 1:26 p.m.)
9 THE VIDEOGRAPHER: On the record, the time is
10 1:26 p.m. Please continue.
11 BY MS. MILLER:
12 Q. Mr. DiBona, do you have a web site, a personal
13 web site?
14 A. Yes, I do.
15 Q. What is the URL for that web site?
16 A. You could go to it by www.dibona.com. It's
17 spelled the same way as my last name.
18 Q. Have you posted DeCSS to your web site in any
19 form?
20 A. I believe I have a hyperlink going from that
21 to an external site that has it for people who want to
22 see it.
23 I do have a joke version of the program that
24 is --
25 Q. I'm sorry, a what version?
119
1 A. I have a joke version of DeCSS on my web site
2 that removes cascading tile sheets from web pages. Me
3 and some friends came up with it. It was just a funny
4 thing to do. But it has nothing to do with the actual
5 program we're talking about here.
6 So I've got a link to the actual program, and
7 I've got a copy of the joke program.
8 Q. What's the file name for that joke program?
9 A. "DeCSS."
10 Q. It's actually called DeCSS, as well?
11 A. Yes.
12 Q. Now, in your hyperlink or your web site going
13 to the DeCSS program, do you know what site you're
14 linking to?
15 A. I think I'm linking to OpenDVD site, but I'd
16 have to check. It would be fairly trivial for someone
17 to find out.
18 Q. Do you know if -- strike that.
19 Have you ever visited the 2600.com web site?
20 A. Often.
21 Q. When was the last time you visited the
22 2600.com web site?
23 A. Probably about two weeks ago or a week ago.
24 Q. And on the 2600.com web site, are you aware
25 that there is a page of links or several pages of links
120
1 to other web sites that are posting the DeCSS utility?
2 A. Yes.
3 Q. Do you know whether or not your site is one of
4 those sites that's being linked to from the 2600.com
5 web site?
6 A. I think it would be unlikely, since I'm not
7 actually hosting the software on the site itself, but I
8 guess I wouldn't be surprised.
9 Q. Did you ever provide 2600.com with the URL of
10 your web site for the purposes of linking to your web
11 site?
12 A. No.
13 MS. MILLER: Okay. Mr. DiBona, that's all I
14 have right now. I'd like to thank you for your time.
15 I would like to leave the deposition open,
16 though, subject to receiving the e-mails and the other
17 documents that we've talked about.
18 But that's just a housekeeping matter between
19 myself and Mr. Hernstadt.
20 But again, I thank you for your time. I don't
21 know whether Mr. Hernstadt has any questions.
22 MR. HERNSTADT: I can certainly get the
23 questions done in less than an hour, I'd say. No. I
24 don't have any questions for you. And I think we've
25 had this exchange a dozen times, but we consider it
121
1 closed, but...
2 MS. MILLER: I'm sure you do, and I consider
3 it open.
4 MR. HERNSTADT: Thank you.
5 THE WITNESS: Thank you.
6 THE VIDEOGRAPHER: This concludes today's
7 deposition of Chris DiBona on July 8, 2000. The total
8 number of videotapes used is two. The original
9 videotapes will be retained by McMahon & Associates.
10 Off the record, the time is 1:30 p.m.
11
12 (Time noted 1:30 p.m.)
13
14
15 ______________________________
16 CHRIS J. DiBONA
17
18
19
20
21 Subscribed and sworn to before me
22 this__________ day of__________________, 2000
23 _____________________________________________
24 Notary Public in and for the State of
25 California, County of Santa Clara