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See related files:
http://www.eff.org/IP/Video (EFF Archive)
http://cryptome.org/cryptout.htm#DVD-DeCSS
(Cryptome Archive)
http://www.2600.com/dvd/docs (2600 Archive)
http://eon.law.harvard.edu/openlaw/dvd/ (Harvard DVD OpenLaw Project)
1
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2
- - - -
3
UNIVERSAL CITY STUDIOS, INC., )
4 PARAMOUNT PICTURES CORPORATION, )
METRO-GOLDWYN-MAYER STUDIOS, )
5 INC., TRISTAR PICTURES, INC., )
COLUMBIA PICTURES INDUSTRIES, )
6 INC., TIME WARNER ENTERTAINMENT )
CO., L.P., DISNEY ENTERPRISES, )
7 INC., and TWENTIETH CENTURY FOX )
FILM CORPORATION, )
8 )
Plaintiffs, )
9 )
-vs- ) Civ. No. 0277 (LAK)
10 )
ERIC CORLEY a/k/a "EMMANUEL )
11 GOLDSTEIN" and 2600 )
ENTERPRISES, INC., )
12 )
Defendants. )
13
14 - - - -
15 DEPOSITION OF: DR. DAVID S. TOURETZKY
16 - - - -
17
DATE: July 13, 2000
18 Thursday, 1:15 p.m.
19
PLACE: DeFOREST & KOSCELNIK
20 3000 Koppers Building
Pittsburgh, PA 15219
21
22 TAKEN BY: Plaintiffs
23
REPORTED BY: Edna Loudenslager, RPR
24 Notary Public
25
2
1 DEPOSITION OF DR. DAVID S. TOURETZKY,
a witness, called by the Plaintiffs for examination, in
2 accordance with the Federal Rules of Civil Procedure,
taken by and before Edna Loudenslager, RPR, a Court
3 Reporter and Notary Public in and for the Commonwealth of
Pennsylvania, at the offices of DeForest & Koscelnik, 3000
4 Koppers Building, Pittsburgh, Pennsylvania, on Thursday,
July 13, 2000, commencing at 1:15 p.m.
5
- - - -
6
APPEARANCES:
7
FOR THE PLAINTIFFS:
8 Michael T. Mervis, Esq. (via telephone)
PROSKAUER ROSE
9 1585 Broadway
New York, NY 10036-8299
10 (212) 969-3000
11
12 FOR THE DEFENDANTS:
David Y. Atlas, Esq. (via telephone)
13 FRANKFURT GARBUS KLEIN & SELZ
488 Madison Avenue
14 New York, NY 10022
(212) 980-0120
15
16
FOR DR. DAVID S. TOURETZKY AS A FACULTY
17 MEMBER OF CARNEGIE MELLON UNIVERSITY AND FOR
CARNEGIE MELLON UNIVERSITY:
18 Walter P. DeForest, Esq.
DeFOREST & KOSCELNIK
19 3000 Koppers Building
Pittsburgh, PA 15219
20 (412) 227-3101
21
22 ALSO PRESENT:
Nathanial Dorfman
23
24
25
3
1 * I N D E X *
2 Examination by Mr. Mervis - - - - - - - - - - - - 4
Examination by Mr. Atlas - - - - - - - - - - - - - 60
3 Re-Examination by Mr. Mervis - - - - - - - - - - - 66
4 Certificate of Court Reporter - - - - - - - - - - 69
Errata Sheet - - - - - - - - - - - - - - - - - - - 70
5
6 * INDEX OF EXHIBITS *
7 Deposition Exhibit 1 - - - - - - - - - - - - - - - 25
Deposition Exhibit 2 - - - - - - - - - - - - - - - 52
8 Deposition Exhibit 3 - - - - - - - - - - - - - - - 59
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
1 DR. DAVID S. TOURETZKY,
2 being first duly sworn,
3 was examined and testified as follows:
4 - - - -
5 EXAMINATION
6 - - - -
7 BY MR. MERVIS:
8 Q. This is Michael Mervis speaking. Good afternoon,
9 Dr. Touretzky.
10 Is Doctor the preferred way you like to be
11 addressed?
12 A. That's fine.
13 Q. Let me put on the record a housekeeping matter,
14 because we're doing this by telephone. Let me thank
15 both you and Mr. DeForest for letting us do this by
16 phone.
17 MR. DeFOREST: Sure.
18 BY MR. MERVIS:
19 Q. I'm sure that it would have been a nice visit to
20 Pittsburgh, but it's a lovely day here in New York.
21 There will be a couple documents,
22 Dr. Touretzky, that I'll be asking you to refer to,
23 and I'm hoping that you have them with you. One is
24 the declaration that you signed in this action,
25 dated April 27th of 2000.
5
1 A. Yes, I have that here.
2 Q. You have the attachment to that, the Exhibit B to
3 that, as well?
4 A. Would that be the Gallery of CSS Descramblers?
5 Q. Yes, sir.
6 A. Yes, I have that here as well.
7 Q. Okay. I would anticipate asking you some brief
8 questions about one other document, which you may
9 not have, which is a -- I got this from your Web
10 site, but it's a copy of a letter that you wrote to
11 the editor of the Tartan, which I take it is a
12 campus publication. The date of it -- I'm not sure
13 I have a date here, but it's regarding DeCSS and
14 DVDs.
15 Do you know which letter I'm referring to?
16 A. Yes, I do. I'm not sure if I have a copy of that or
17 not.
18 MR. ATLAS: This is Mr. Atlas. I don't
19 have a copy of that. Maybe if there's a way to
20 access it --
21 MR. MERVIS: Well, there are two things we
22 can do. I mean, it is on the site, although I'm not
23 sure that makes -- I will save it till the end of
24 the examination. Maybe I can fax it off to both of
25 you right now.
6
1 MR. DeFOREST: Yes. This is Walter
2 DeForest, Mr. Mervis. And I should note I'm here --
3 we should note on the record I believe Mr. Atlas is
4 representing Dr. Touretzky in regard to his
5 involvement in the pending litigation. I'm here
6 only representing Dr. Touretzky in regard to any
7 matters relating to him as a faculty member of
8 Carnegie Mellon University and, also, I'll be
9 representing the University in that regard, if, in
10 the unlikely event, any subjects like that came up.
11 But you could fax it to my fax number, which I'll
12 give you.
13 MR. MERVIS: Okay.
14 MR. DeFOREST: And if you wanted to do
15 that, maybe give it to somebody to do now and
16 I'll --
17 MR. MERVIS: I'll give it to my secretary,
18 who I had stand by just in case this -- I thought
19 this might happen.
20 MR. DeFOREST: Yes.
21 MR. ATLAS: And I'll probably need to just
22 take a break and run to the fax room to get it.
23 MR. MERVIS: That's fine. That's fine.
24 As I said, I'll save this till the end of the
25 examination. Although I'm going to try to do this
7
1 relatively quickly, it will probably certainly be
2 enough time to have it faxed.
3
4
5 CONFIDENTIAL
6
7
8
9
10
11
12 MR. MERVIS: Okay. If I can put you on
13 hold for just a minute, then we'll get started.
14 - - - -
15 (There was a brief pause in the proceedings.)
16 - - - -
17 BY MR. MERVIS:
18 Q. This is Mr. Mervis, and I'm back and I thank you for
19 your patience.
20 MR. DeFOREST: Mr. Mervis, this is Walter
21 DeForest. It's just my practice to let everybody
22 know who's in the room on a telephone deposition.
23 The only people here would be the reporter,
24 Dr. Touretzky and me, and I have a young man who's
25 going into his second year at Harvard Law School.
8
1 He's with me in the summer and wanted to see a
2 deposition. So his name is Nathanial Dorfman.
3 MR. MERVIS: Okay. Well, welcome,
4 Mr. Dorfman. I'm sorry you can't actually see us.
5 MR. ATLAS: Now we have to behave, I
6 suppose.
7 MR. MERVIS: Well, I think we had planned
8 to.
9 Just in keeping with that comment, it's
10 possible that I may be joined for a few minutes by
11 one of my colleagues, whose name is Carla Miller.
12 MR. DeFOREST: Sure.
13 MR. MERVIS: If that happens, I'll put you
14 on the speaker phone, and I'll let you know when she
15 comes in.
16 MR. DeFOREST: Yes, sir.
17 BY MR. MERVIS:
18 Q. Dr. Touretzky, let me ask you this, sir: When was
19 the first time that you ever spoke to any of the
20 attorneys who are representing the defendants in
21 this case?
22 A. I spoke with Robin Gross back around -- I think
23 February of this year. I'm not certain of the date.
24 Q. And did you speak with her about this case?
25 A. Yes. This or the California case. I think both.
9
1 Q. Was that a telephone conversation?
2 A. There was both e-mail and telephone.
3 Q. I see. About how many telephone conversations did
4 you have with Ms. Gross about this case? And if you
5 can't exclude this case and the California case,
6 that's fine. Well, let me restate it.
7 About how many conversations by phone did
8 you have with Ms. Gross about either this case or
9 the California case?
10 A. I think somewhere around four.
11 Q. Did you take any notes or make any record of any of
12 these conversations?
13 A. I'm not certain.
14 Q. Sitting here today -- or I should say sitting in
15 Pittsburgh today, what do you recall about what was
16 said during any of these conversations?
17 A. Well, one thing that was said was that EFF would
18 represent me if I became a defendant. And given
19 that, that's my understanding. I don't think I want
20 to go into anything else that was said.
21 Q. Well, let me just explore that for a minute.
22 Is it correct, then, Dr. Touretzky, that
23 the remainder of the conversation that you had with
24 Ms. Gross concerned your potential involvement as a
25 litigant in this lawsuit?
10
1 MR. ATLAS: This is Mr. Atlas. I'm going
2 to raise an objection.
3 To the extent, Dr. Touretzky, you
4 consulted Ms. Gross in connection with the possible
5 attorney/client relationship between the two of you,
6 then I would instruct you not to answer that
7 question concerning the subject of any discussions
8 you may have had with her.
9 A. I considered the entirety of our conversation to be
10 at least related to the potential of my being a
11 defendant.
12 BY MR. MERVIS:
13 Q. Okay. And is there any part of any of these
14 conversations that you can separate out from that
15 possibility as opposed to acting as either a
16 consultant or a testifying witness in either this
17 litigation or the California litigation?
18 A. I don't believe that I can separate those.
19 Q. Do you recall -- I take it -- do you have any of the
20 e-mail correspondence that you referred to with you
21 today?
22 A. Not with me.
23 Q. Do you have any recollection of what was in those
24 correspondences? And I -- well, that's the
25 question.
11
1 MR. ATLAS: This is Mr. Atlas. Kind of
2 the same objection. To the extent you're
3 corresponding with Ms. Gross in connection with an
4 attorney/client relationship with respect to any
5 potential action against Dr. Touretzky, then I would
6 instruct the witness to not reveal the substance of
7 those communications.
8 MR. MERVIS: Okay. That's fine. The
9 question was -- the set-up question was whether
10 Dr. Touretzky recalled any of the --
11 MR. ATLAS: Right. I understand the
12 content. It calls for a yes or no answer.
13 MR. MERVIS: Right.
14 A. I think I've been instructed not to answer.
15 MR. ATLAS: You can answer yes or no as to
16 whether you recall the content. If the answer is
17 no, then he'll just move on. If the answer is yes,
18 then at that point I will instruct you not to
19 disclose the substance of those communications.
20 THE WITNESS: Okay.
21 A. I recall at least some of the content.
22 BY MR. MERVIS:
23 Q. And can you tell me what you recall?
24 MR. ATLAS: Okay. At this point, this is
25 Mr. Atlas, I'll instruct the witness not to answer.
12
1 To the extent it dealt specifically with whether --
2 dealt specifically with a potential attorney/client
3 relationship between Dr. Touretzky and an attorney,
4 if you can separate out any matters relating to the
5 possibility of you acting as an expert or a witness
6 in the case, you may do so. But if you can't, then
7 I instruct you not to answer.
8 A. Everything that I can recall was related to the
9 possibility of my being a defendant, with the
10 exception of at one point Ms. Gross did give me
11 Mr. Garbus's phone number.
12 BY MR. MERVIS:
13 Q. I see. All right. Is it fair to say that at some
14 point you had a conversation with Mr. Garbus?
15 A. Yes.
16 Q. Do you recall when that was?
17 A. I think it was in March.
18 Q. And did you have any other type of communication
19 with Mr. Garbus before you had that telephone
20 conversation in March?
21 A. No. I believe the phone call was the first
22 communication.
23 Q. And were just you and Mr. Garbus participants on
24 that phone call?
25 A. Yes.
13
1 Q. About how long did the call last?
2 A. I think it was pretty brief. Maybe -- I'm
3 uncertain. Maybe five minutes, ten minutes at most.
4 Q. And did you make any notes during the course of that
5 telephone conversation?
6 A. No.
7 Q. Have you, at any time, made any kind of record of
8 what was said during that conversation?
9 MR. ATLAS: Mr. Atlas. Objection as to
10 form.
11 Go ahead, you can answer.
12 A. I don't believe there was a record. Not of that
13 initial conversation, no.
14 BY MR. MERVIS:
15 Q. Dr. Touretzky, could you tell me what was said
16 during this initial March telephone conversation
17 with Mr. Garbus?
18 MR. ATLAS: This is Mr. Atlas. Again, I
19 just -- because I'm not aware of the substance of
20 these conversations, I just want to instruct the
21 witness -- to the extent it dealt with a possible
22 attorney/client relationship between Mr. Garbus or
23 the Frankfurt Garbus firm and Dr. Touretzky, I'd
24 instruct the witness to not answer that.
25 To the extent that it dealt with his
14
1 matters in connection with this lawsuit and in
2 connection with him being a testifying witness, an
3 expert for the defense, then he certainly may
4 testify about that.
5 A. Okay. I believe that in that first conversation I
6 referred Mr. Garbus to the Gallery of CSS
7 Descramblers that I had prepared. And you have that
8 in front of you. It's Attachment B to my
9 declaration.
10 BY MR. MERVIS:
11 Q. All right. And do you recall -- was there any
12 conversation as to why you thought Mr. Garbus should
13 take a look at that Gallery?
14 A. I thought the Gallery made an effective argument
15 that computer code is expressive speech and can't be
16 distinguished from other forms of expressive speech.
17 Q. Do you recall anything else that was said by either
18 you or Mr. Garbus during this March telephone
19 conversation?
20 A. Nothing that I don't believe is covered by
21 attorney/client privilege.
22 Q. And when you say attorney/client privilege, do you
23 mean to say that the rest of the discussion that you
24 recall, in any event, focused around the Garbus
25 firm's possible representation of you as a litigant
15
1 in some lawsuit or potential lawsuit?
2 A. I don't recall many details, but I have discussed
3 with Mr. Garbus his representation of me. And I
4 believe that --
5 MR. ATLAS: This is Mr. Atlas. To the
6 extent the witness -- I'll allow the witness to
7 answer questions as it pertains to any conversations
8 with any attorneys, whether at this firm or
9 otherwise, regarding his participation as an expert
10 in this action.
11 And, Dr. Touretzky, to the extent you can
12 parse it out, you should answer those questions. To
13 the extent any of your conversations dealt with any
14 other matters of an attorney/client nature, then I
15 would instruct you to not answer those questions.
16 THE WITNESS: I understand.
17 MR. ATLAS: Okay.
18 MR. MERVIS: And this is Mr. Mervis. I,
19 basically, think that's a perfectly fine
20 instruction. I'm not sure that the last question I
21 asked would intrude on that instruction, so if I
22 could ask Edna to read it back to the witness.
23 MR. ATLAS: This is Mr. Atlas. I don't
24 know, either, but I just wanted to give the
25 instruction so that the doctor was clear on what he
16
1 should and should not testify about.
2 MR. MERVIS: Okay. This is Mr. Mervis.
3 Edna, could you read back my last pending
4 question?
5 THE COURT REPORTER: Sure.
6 - - - -
7 (The record was read back by the Reporter.)
8 - - - -
9 MR. ATLAS: This is Mr. Atlas. Just
10 objection as to form.
11 Go ahead, you can answer sort of along the
12 lines that I've laid out.
13 A. As best I can recall, other than discussing the
14 Gallery, any other parts of the conversation would
15 have involved my possibly being a defendant and my
16 relationship with the Garbus law firm.
17 BY MR. MERVIS:
18 Q. Okay, thank you.
19 Now, when was the next communication that
20 you had with any attorney at the Garbus law firm?
21 A. Well, I don't have a record in front of me. But
22 subsequent to my first conversation with Mr. Garbus,
23 I had conversations, by e-mail and by telephone,
24 with Mr. Hernstadt.
25 Q. Do you have any of those -- did you save any of
17
1 those e-mails?
2 A. Yes.
3 Q. Do you have any hard copies of those e-mails in your
4 possession today?
5 A. No, I do not.
6 MR. MERVIS: Let me just interrupt the
7 questioning.
8 Mr. Atlas, I'd call for the production of
9 hard copies of those e-mails.
10 MR. ATLAS: We'll take it under
11 advisement. Obviously, to the extent it deals with
12 him testifying as an expert in this case, I would
13 assume I'd have no objection to it. But I haven't
14 seen it, so I'd have to see it first.
15 MR. MERVIS: Sure, obviously. Thank you
16 for your attention.
17 BY MR. MERVIS:
18 Q. This is Mr. Mervis, again.
19 Dr. Touretzky, do you have any
20 recollection as to the substance of those e-mails?
21 In other words, what did they say?
22 A. We were discussing the preparation of a declaration
23 to be submitted in this case.
24 Q. And is that the declaration that I referred to
25 earlier, which is the April, I think it's 29th,
18
1 declaration?
2 A. April 27th, yes.
3 Q. I'm sorry, April 27th.
4 Is that right?
5 A. Yes.
6 Q. Did you exchange, for example, drafts of the
7 declaration?
8 A. Yes.
9 Q. Do you recall anything more specific about the
10 content of your e-mail correspondence with
11 Mr. Hernstadt?
12 A. Well, in addition to discussing the drafts, we
13 discussed the possibility of my being deposed in
14 this case. And just recently we exchanged some
15 e-mail containing a draft of an article, which I
16 believe has been provided to you.
17 Q. Yes, that's right.
18 When did you provide that draft of the
19 article to the Garbus firm?
20 A. The first draft was a few days ago, and the draft
21 you have today was sent last night.
22 Q. I got you. All right.
23 Can you recall anything else about the
24 content of your e-mail correspondence with
25 Mr. Hernstadt?
19
1 A. I don't recall anything else at the moment.
2 Q. About how many phone conversations have you had with
3 Mr. Hernstadt since the first time you talked to
4 him?
5 A. Probably half a dozen.
6 Q. When was the last one?
7 A. This morning or yesterday. I think yesterday.
8 Q. What did you and Mr. Hernstadt talk about yesterday?
9 A. The scheduling of my deposition.
10 Q. Anything else?
11 A. I think it was this morning. We talked about his
12 intention to provide this article to your firm.
13 Q. Anything else?
14 A. No, I don't think so.
15 Q. You said this morning was when you had that
16 conversation?
17 A. Yes.
18 Q. Prior to this morning's conversation, when was the
19 last time that you spoke to Mr. Hernstadt?
20 A. We've spoken several times over the last few days
21 about scheduling the deposition.
22 Q. And during those conversations do you recall whether
23 there was any other topic but the scheduling of this
24 deposition?
25 A. I don't believe there were other topics.
20
1 Q. And prior to those series of phone calls, when was
2 the last time that you spoke with Mr. Hernstadt?
3 A. I can't recall.
4 Q. Apart from those telephone calls to Mr. Hernstadt
5 that we had just gone over, do you recall anything
6 that either you or Mr. Hernstadt said during these
7 conversations?
8 A. Well, we discussed Mr. Hart very briefly.
9 Q. What did you talk about in regard to Mr. Hart?
10 A. I pointed out that Mr. Hart had previously
11 represented the Church of Scientology.
12 Q. And you pointed that out to Mr. Hernstadt?
13 A. Yes, I did.
14 Q. Did you say anything more than that about that
15 topic?
16 A. Not recently, no.
17 Q. I'm sorry, not recently?
18 A. No, not in the most -- most recent discussions. I
19 believe I forwarded him an e-mail -- no, I'm sorry.
20 I forwarded to him a Usenet posting that had been
21 made some time ago, which was a piece of a
22 deposition where Mr. Hart was present.
23 Q. Yes, I think I've seen that. It's fairly amusing.
24 That would be the deposition of Mr. Miscavitch?
25 A. That's correct.
21
1 Q. Yes, I've read that. I'm sure Mr. Hernstadt enjoyed
2 it.
3 Did you have any other discussion with
4 Mr. Hernstadt about Mr. Hart and his representation
5 of the Church of Scientology?
6 A. No.
7 Q. Can you remember anything else that you and
8 Mr. Hernstadt talked about during any of your
9 conversations prior to the few conversations we
10 discussed that happened most recently?
11 A. No.
12 Q. Did you take any notes during any of those
13 conversations?
14 A. No.
15 Q. And let me, actually, be more specific.
16 Have you taken any notes during any of
17 your conversations with Mr. Hernstadt?
18 A. No, I have not.
19 Q. Have you ever made any kind of written record about
20 any of your conversations with Mr. Hernstadt?
21 A. I don't believe I've made any record at all.
22 Q. Apart from e-mail correspondence, have you ever had
23 any other form of correspondence with Mr. Hernstadt?
24 A. I did fax his office a copy of the subpoena that I
25 received in this case.
22
1 Q. Apart from that one facsimile, anything else?
2 A. No.
3 Q. And have you ever corresponded with Mr. Garbus?
4 A. Yes.
5 Q. And when was that, sir?
6 A. Well, I've exchanged e-mails with both him and
7 Mr. Hernstadt. In many cases I sent the same
8 message to both of them.
9 Q. I understand.
10 To the extent that -- this is to
11 Mr. Atlas.
12 David, to the extent that there are
13 e-mails that went to Mr. Garbus that did not also go
14 to Mr. Hernstadt, I'd also call for their
15 production.
16 MR. ATLAS: Okay. I'll take it under
17 advisement.
18 MR. MERVIS: Thank you.
19 BY MR. MERVIS:
20 Q. This is Mr. Mervis, again.
21 I'm sorry, Dr. Touretzky, apart from
22 Mr. Hernstadt and Mr. Garbus, have you spoken with
23 anybody else at the Garbus firm?
24 A. I've spoken with Fredda Tourin, who I believe is
25 Mr. Garbus's assistant, and I've spoken with
23
1 Mr. Atlas.
2 Q. How many times have you spoken with Mr. Atlas?
3 A. The first time was this morning.
4 Q. And I take it this is in regard to deposition
5 scheduling?
6 A. Yes.
7 MR. ATLAS: This is Mr. Atlas. It was,
8 but the witness can answer.
9 MR. MERVIS: Thanks.
10 A. Yes.
11 BY MR. MERVIS:
12 Q. Is that correct, Dr. Touretzky?
13 A. Yes, that's correct.
14 Q. Okay. Thank you.
15 What, if anything, did you do to prepare
16 for today's deposition?
17 A. I reviewed my declaration. I reviewed the essay
18 that I prepared, which was supplied to you today.
19 And I have with me here a large binder of readings.
20 These are documents that are all publicly available
21 that I had downloaded from the Internet over the
22 past months, and I reviewed some of those.
23 Q. I'm sorry, did you say pleadings?
24 A. Readings.
25 Q. Oh, readings.
24
1 A. Yes.
2 Q. I see.
3 A. Articles.
4 Q. Articles. Do the articles have any kind of common
5 theme?
6 A. Well, they all have to do with copyright, the
7 Digital Millennium Copyright Act, CSS, DeCSS and
8 this litigation.
9 Q. Did anyone at the Garbus firm assist you in
10 selecting those articles that you put in this
11 binder?
12 A. There's one article that they referred to me. All
13 the other articles I found on my own and have not
14 discussed them with the Garbus firm.
15 Q. What's the one article that was referred to you?
16 A. It was a press release by Macrovision.
17 Q. And you have that with you here -- in the office
18 there today?
19 A. Yes.
20 Q. If you need to look at it, that's fine. I guess I
21 just want to know what the -- so you can give me
22 what sort of the general substance of that press
23 release is.
24 A. My recollection is that Macrovision said in their
25 press release that the cracking of the CSS
25
1 encryption algorithm was not important, that it
2 would not threaten the ability of the Motion Picture
3 Industry to protect its content.
4 Q. And was there a particular attorney at the Garbus
5 firm who referred you to that press release?
6 A. The referral was made in e-mail, and it may have
7 come from Fredda Tourin. I don't know.
8 Q. About when did you receive that e-mail?
9 A. Several seeks ago.
10 Q. Was there any explanation or other instructions in
11 that e-mail?
12 A. The e-mail just said that this was an interesting
13 article.
14 Q. Now, the declaration, the April 27th declaration --
15 and I suppose I might as well have the reporter mark
16 it as Touretzky 1.
17 MR. ATLAS: Touretzky 1, okay.
18 - - - -
19 (Touretzky Deposition Exhibit No. 1 marked
20 for identification.)
21 - - - -
22 (There was a discussion off the record.)
23 - - - -
24 BY MR. MERVIS:
25 Q. Dr. Touretzky, about how long did the drafting
26
1 process take before you got to the final version of
2 your declaration, which is marked for identification
3 as Exhibit 1?
4 A. My recollection is that I received the first draft
5 from Mr. Hernstadt. I edited it and sent it back.
6 And that was the final draft.
7 Q. And, I'm sorry, the draft that you received from
8 Mr. Hernstadt, was that in e-mail form?
9 A. Yes.
10 Q. And did you print out a hard copy at the time?
11 A. No, I did not.
12 Q. And when you edited it, did you edit it on the
13 computer?
14 A. Yes.
15 Q. In soft copy?
16 A. Yes.
17 Q. And you sent it back to him by e-mail?
18 A. Yes, I did.
19 MR. MERVIS: Dave, just so there's no --
20 it shouldn't be confusing, but this, obviously,
21 would be one of the documents that we'd certainly
22 like to see.
23 MR. ATLAS: Okay. Again, we'll take it
24 under advisement.
25 BY MR. MERVIS:
27
1 Q. This is Mr. Mervis, again.
2 Prior to receiving Mr. Hernstadt's draft,
3 had you had discussions with him about what the
4 content of the declaration ought to be?
5 A. Yes.
6 Q. Do you recall anything about those discussions?
7 A. Yes. I explained to him about the Gallery and what
8 the exhibits were and the point that the Gallery was
9 trying to communicate. And then Mr. Hernstadt, in
10 his draft, tried to convey what I had tried to
11 convey to him.
12 Q. Did you have a discussion -- well, let me ask you
13 this: How did it come to be that Mr. Hernstadt did
14 the first draft as opposed to yourself?
15 A. I think they got tired of waiting for me to produce
16 a first draft.
17 Q. I think that's a perfectly good explanation.
18 So you looked at it, and you edited it
19 once and then -- I'm sorry, and then you said that
20 was it, that was the final draft?
21 A. That's my recollection. Now, they did -- they
22 wanted me to sign it, and they wanted it to have a
23 caption.
24 Q. Right.
25 A. So they sent me back the document in Microsoft Word
28
1 format because it had a proper caption.
2 Q. I see.
3 A. So I got that back from them. And that I printed
4 out and signed and sent to them. And I did make one
5 other edit in that document. I changed my name,
6 which they had put as Dave Touretzky. It should
7 have been David S. And so I made that one edit in
8 their Microsoft Word document and sent that back to
9 them.
10 Q. I'm sorry, where did you make that change in the
11 document?
12 A. In the caption and in the first line of the text.
13 Q. I'm sorry, and you say you changed it to David S.
14 Touretzky?
15 A. Yes.
16 Q. Not that it's all that important, but the document
17 that we marked as Exhibit 1, just so we see if it's
18 the same one, at the very beginning, below the
19 caption box, how did your name read?
20 A. So the Exhibit 1 that you have is the version that I
21 edited and sent back to them.
22 Q. Right.
23 A. And that reads David S.
24 Q. I see. All right.
25 Well, why don't we go off the record for a
29
1 second.
2 - - - -
3 (There was a discussion off the record.)
4 - - - -
5 MR. ATLAS: Mr. Touretzky, if you could
6 just explain the circumstances under which the
7 affidavit that was filed in court says Dave
8 Touretzky and not David S. Touretzky.
9 THE WITNESS: Yes.
10 A. After I e-mailed the draft back to Mr. Hernstadt, he
11 needed a signed copy with a proper caption. And in
12 order to do that, he sent me their Microsoft Word
13 version. And when I looked at that, I noticed that
14 they had my name as Dave. And I prefer David S. in
15 professional correspondence, so I changed it to
16 David S. I printed that out, and that is what I
17 sent back to them.
18 But my understanding is that they had
19 already filed their version. When I sent it back, I
20 didn't alert them that I had made this change
21 because I didn't realize they would be filing their
22 version instead of my signed copy.
23 BY MR. MERVIS:
24 Q. All right. Well, we'll work through the text, and
25 presumably it will be the same.
30
1 Let me ask you -- before we get to the
2 declaration in full, let me just ask you one other
3 question: Have you been asked to testify at the
4 trial of this case, Dr. Touretzky?
5 A. It's my understanding that I will be asked to
6 testify, yes.
7 Q. But as far as -- hang on one second.
8 But as of this date you have, in fact --
9 no one has, in fact, asked you to do so; is that
10 right?
11 A. Well, I think they've asked me to, but they don't
12 have a date yet.
13 Q. I see. And if you're asked to do so, will you do
14 so?
15 A. Yes.
16 Q. Now, as I understand it, you're, apparently, going
17 to be out of the country in the coming weeks?
18 A. I'm leaving tomorrow.
19 Q. And how long are you going to be away?
20 A. I'll be returning on the 22nd.
21 Q. Now, by the way, in connection with the work that
22 you've done with the Frankfurt Garbus firm on this
23 case, have you received any kind of compensation?
24 A. No.
25 Q. Have you ever had any conversations with Eric
31
1 Corley?
2 A. I have not.
3 Q. Have you ever had any kind of communication with
4 Eric Corley?
5 A. None whatsoever.
6 Q. Now, before we start looking at particular passages
7 from the declaration, let me try this: What is it
8 that you understand -- withdrawn.
9 Could you give me the bottom line opinions
10 that you would like to offer at the trial of this
11 case?
12 A. Yes. I think there are three ideas I'm trying to
13 communicate. The first is that computer code
14 written in a high level language, such as C, has
15 expressive content. The second is that it's not
16 possible to distinguish between computer code and
17 other forms of expression, such as plain English.
18 And the third point is that it's not possible to
19 distinguish between what people call source code and
20 what they call object code.
21 Q. And has anyone asked you to offer opinions at the
22 trial on subjects other than the three subjects
23 you've enumerated?
24 A. No.
25 Q. I'm sorry, just bear with me.
32
1 If you could turn, Dr. Touretzky, to page
2 two of your declaration, which is marked as Exhibit
3 1 for identification.
4 A. Yes.
5 Q. Referring you to paragraph two of your declaration,
6 if you could take a look at the very last sentence,
7 which I'll read. It says: I do not link to the
8 binary executable file for the program known as
9 DeCSS.
10 Did I read that correctly, Doctor?
11 A. Yes.
12 Q. Is that still the case?
13 A. That is still the case.
14 Q. Why is it that you don't link to the binary
15 executable file for DeCSS?
16 A. It was a strategic decision on my part. I want to
17 make as clear a case as possible that the
18 publication of source of C level -- high level
19 language code, such as C code, is protected by the
20 First Amendment. Although I believe that object
21 code deserves the same protections, I wanted to make
22 a case that was as short and simple as possible and
23 not get bogged down in arguments about the legal
24 status of binary executable code.
25 Q. Now, taking a look at the very next paragraph, in
33
1 fact, the very next sentence, which reads: It is my
2 belief that source code is expressive speech
3 meriting the full protection of the First Amendment.
4 Can you tell me, sitting in Pittsburgh
5 today, the basis of that belief?
6 A. Well, I've been programming computers for 25 years,
7 and much of my activities involve expressing my
8 ideas in source code and reading source code written
9 by other people.
10 Q. And I take it that experience has led you to believe
11 that source code is worthy of, as you say, a First
12 Amendment protection?
13 A. Yes.
14 Q. Now, let me pose a couple of -- well, let me ask you
15 this: You're familiar with the computer virus that
16 was recently in the news called the Melissa virus?
17 A. Yes, I am.
18 Q. Is that a computer code?
19 A. Yes.
20 Q. And there's source code for that?
21 A. I believe there is, yes.
22 Q. In your opinion, would that source code be a form of
23 expression that's worthy of First Amendment
24 protection?
25 A. Absolutely.
34
1 Q. Let me just give you a hypothetical. Supposing that
2 access to a nuclear warhead -- I'm sorry, access to
3 the triggering mechanism of a nuclear warhead was
4 protected by an encryption system and suppose that
5 someone had developed a software utility to
6 circumvent that encryption system, would the source
7 code for that hypothetical utility, would that be
8 expression that's protected under the First
9 Amendment?
10 MR. ATLAS: I'll object to that question.
11 But, Dr. Touretzky, if you think you can answer it,
12 go ahead.
13 A. Well, as I understand the question, you're asking me
14 whether expression that threatens national security
15 enjoys First Amendment protection.
16 BY MR. MERVIS:
17 Q. Well, I suppose that was the gist of it, yes. But,
18 I mean, whether or not it threatens national
19 security, I guess my question is, given those two
20 assumptions, would that hypothetical source code
21 constitute expression worthy of First Amendment
22 protection?
23 MR. ATLAS: This is Mr. Atlas, again.
24 Just one other objection. As far as I know,
25 Dr. Touretzky is not a lawyer. His answer should,
35
1 in no means, be interpreted as a legal conclusion.
2 But from a layperson's perspective, Dr. Touretzky
3 can answer, if he has an opinion.
4 A. I think in principle it deserves First Amendment
5 protection. But I have to allow that it may be the
6 case, then, if this particular code did pose an
7 immediate and grave risk to national security, then
8 it may be permissible to limit its distribution in
9 that case.
10 BY MR. MERVIS:
11 Q. I'm sorry, just bear with me for a second.
12 If you could turn to the next page,
13 Dr. Touretzky, page three.
14 A. Yes.
15 Q. And take a look at the first sentence of paragraph
16 four where you wrote, I am concerned that this
17 court, referring to Judge Kaplan, issued an order
18 prohibiting the defendants from posting source code
19 for CSS decryption algorithms on the Internet.
20 Apart from my little editorial, did I read
21 that correctly?
22 A. Yes, you did.
23 Q. And I take it -- today do you still have that
24 concern?
25 A. Yes, I do.
36
1 Q. Can you tell me, sitting there today, what the basis
2 of that concern is?
3 A. I believe the court is depriving the defendants of
4 their First Amendment rights.
5 Q. And why is that?
6 A. Because the court is prohibiting speech.
7 Q. I take it that you are sympathetic to the
8 defendants' position in this case?
9 A. Yes.
10 Q. If you could take a look at Exhibit B to your
11 declaration, which has been marked as Exhibit 1 for
12 identification.
13 MR. ATLAS: This is Mr. Atlas. Just give
14 me a second so that I can find what we're referring
15 to.
16 Off the record.
17 - - - -
18 (There was a discussion off the record.)
19 - - - -
20 A. I'd like to point out that I don't have a copy of
21 what was filed as the Appendix B. I have printed
22 out the Gallery myself.
23 BY MR. MERVIS:
24 Q. Oh, okay. And what date?
25 A. And that's what I have with me. I printed this out
37
1 last night.
2 Q. Well, that's good, because I have one I printed out
3 about an hour ago. So it probably -- has it
4 changed?
5 A. No, it has not.
6 MR. ATLAS: The one that's attached as, I
7 guess, Exhibit B, this is Mr. Atlas, by the way, to
8 the declaration is dated 4/28, 2000. It looks like
9 it was printed out at 2:02 p.m.
10 So I've got no objection to you asking
11 questions, but let's just be clear that we're all on
12 the same page and we're looking at the same
13 language.
14 MR. MERVIS: Well, I guess it's possible
15 we're not all on the same page. But I think -- and
16 let's do this: Mr. Atlas, if what I'm about to read
17 is different on your version, let me know.
18 MR. ATLAS: Okay.
19 MR. MERVIS: Because I'm only looking at
20 one sentence.
21 MR. ATLAS: Okay.
22 BY MR. MERVIS:
23 Q. Dr. Touretzky, looking to the third paragraph on the
24 Gallery and the very last sentence, and you've
25 written: This Web site was created to explore this
38
1 issue and point out the absurdity of Judge Kaplan's
2 position that source code can be legally
3 differentiated from other forms of written
4 expression.
5 Did I read that correctly?
6 A. Yes, you did.
7 Q. Now, is it still your position, as you sit there
8 today, that Judge Kaplan's position that source code
9 can be legally differentiated from other forms of
10 written expression is absurd?
11 A. With apologies to the judge, yes, it is.
12 Q. I take it you've read Judge Kaplan's decision?
13 A. I read the preliminary injunction, yes.
14 Q. Right. And it's your understanding that in that
15 decision he draws a distinction, a legal
16 distinction, between source code and other forms of
17 written expression?
18 A. Yes.
19 Q. Do you have a copy of the decision with you today?
20 A. I do. It will take me a minute to pull it out of
21 this binder, if you'll bear with me.
22 Q. That's fine.
23 A. Okay, what I see here is a memorandum Order dated
24 February 2nd of 2000.
25 Q. All right.
39
1 Why don't we ask the reporter to mark that
2 as an exhibit.
3 - - - -
4 (There was a discussion off the record.)
5 - - - -
6 BY MR. MERVIS:
7 Q. Getting back to your comment in your Gallery,
8 Dr. Touretzky, regarding the absurdity of the
9 position that you indicate Judge Kaplan has taken,
10 why do you think it's absurd?
11 A. In his memorandum and in his -- in the transcript
12 that I recall reading of the hearing, Judge Kaplan
13 said that he did not wish to enjoin discussion of
14 the DeCSS algorithm. He only wished to enjoin
15 computer code.
16 The problem with that position is that
17 it's a trivial matter to translate the computer code
18 into conversational English. And I've done so, and
19 that is supplied as one of the exhibits in the
20 Gallery.
21 Q. Right.
22 A. Well, once one has a copy of the plain English
23 description, it's, again, a trivial matter to
24 convert that back to C source code or to source code
25 in some other programming language. And so Judge
40
1 Kaplan's prohibition has no real effect.
2 Q. Let me direct you back to paragraph four of your
3 declaration, Exhibit 1 for identification. We've
4 already gone over the first sentence. I want to
5 direct your attention to the next two sentences --
6 I'm sorry, the next three. If you could just read
7 those to yourself, and let me know when you finish.
8 MR. ATLAS: Actually, could we just read
9 them out loud just so that I'm clear that we're all
10 reading from the same document?
11 MR. MERVIS: All right. I don't mind. I
12 read fairly well.
13 BY MR. MERVIS:
14 Q. As a scientist, I feel it is imperative that anyone,
15 not just academics, be allowed to participate in the
16 ongoing analysis and improvement of encryption
17 technologies. This requires a dialogue among all
18 interested parties who must be free to engage in
19 their own testing and reverse engineering and to
20 openly discuss the algorithms and their
21 implementation. A normal part of such discussions
22 among computer scientists is the sharing of source
23 code.
24 Did I read that correctly, Dr. Touretzky?
25 A. Yes, you did.
41
1 Q. Let me ask you this, sir: As you understand it,
2 how, if at all, does Judge Kaplan's injunction
3 affect the things that you express concern about in
4 the sentences I just read?
5 A. Judge Kaplan has enjoined the publication of source
6 code, and that will hinder the ability of people to
7 discuss these algorithms.
8 As I showed in the Gallery, it doesn't --
9 it doesn't absolutely prohibit it, prohibit
10 discussion, because it's a trivial matter to turn C
11 into English and English into C, but it's certainly
12 an inconvenience. And I think Judge Kaplan's
13 intention was to do more than inconvenience people.
14 Q. Well, let me ask you this: Let's say you were
15 interested in having a discussion with like-minded
16 people about encryption technologies.
17 You could do that through e-mail, couldn't
18 you?
19 A. Certainly.
20 Q. And you could, if you wanted to study source code in
21 connection with the discussion of encryption
22 technologies, you could send copies of the source
23 code back and forth by e-mail, correct?
24 A. Yes.
25 Q. Have you heard the term or such a thing as a private
42
1 Internet Web site?
2 A. I understand the concept.
3 Q. Can you tell me what your understanding is?
4 A. My understanding is that it would be a Web site
5 where access is restricted in some way, perhaps by
6 use of a password.
7 Q. And, hypothetically, if like-minded people wished to
8 discuss encryption technology and in the process
9 study source code, at least hypothetically they
10 could get together, form a private Web site and post
11 the source code on that site, correct?
12 A. They could do that, yes.
13 Q. Turning to the very next sentence of your -- well,
14 let me -- I'm sorry, let me ask you this: Given
15 that -- well, is it correct that -- withdrawn. I'll
16 get back to that.
17 In the next sentence -- let me just read
18 it for the record. The next sentence you write, it
19 is clear to me that some of the Web sites presently
20 posting and/or linking to DeCSS or the css-auth
21 decryption routines are primarily part of the
22 Internet-based scientific/intellectual dialogue
23 described above, especially those sites operated by
24 developers of DVD applications or by cryptographers.
25 Did I read that correctly?
43
1 A. Yes, you did.
2 Q. Let's go to the very beginning of the sentence when
3 you say that it's clear to me that some of the
4 sites.
5 Which sites did you have in mind when you
6 wrote this?
7 A. Well, for example, the Cryptome Web site operated by
8 John Young provides the DeCSS program and the
9 css-auth source. I believe both. There's a site
10 called OpenDVD.org.
11 There are Web sites devoted to the Livid
12 Development Group. Livid is a DVD player for the
13 Linux Operating System. And I believe those Web
14 sites make the code available as well. And Frank
15 Stevenson, who I know has filed a declaration in
16 this case, maintains a Web site in which he has some
17 decryption code available.
18 Q. I'm sorry, any other sites that you were referring
19 to when you're referring to some Web sites?
20 A. Those are all the ones I can think of off the top of
21 my head.
22 Q. Do you think you saw others?
23 A. I probably did, but I can't be certain.
24 Q. Any idea as to how many?
25 A. In addition to the ones I named, the ones that were
44
1 clearly devoted to cryptography or DVD applications,
2 I would imagine only one or two beyond what I've
3 named already. I haven't looked for those kinds of
4 Web sites.
5 Q. And, I'm sorry, why is it that you haven't looked
6 for them?
7 A. I'm not particularly interested if cryptography.
8 Q. I understand.
9 Now, I take it that of the four that you
10 listed and of the two others, your recollection is
11 that those sites have, in addition to DeCSS code,
12 various discussions of cryptography?
13 A. Either cryptography or video applications.
14 Q. Do you know or have you ever tried to make a study
15 of how many sites are available right now on the
16 World Wide Web that have the DeCSS either executable
17 or source code on them?
18 A. The estimate that I read was somewhere around three
19 to four hundred.
20 Q. And have you ever examined or done any kind of study
21 as to what number of those three to four hundred
22 make the code available but have no discussion of
23 either cryptography, reverse engineering or any
24 other computer science-related topic?
25 A. No, I haven't done that kind of study.
45
1 Q. Getting back to my hypothetical about, say, the
2 private Web site where like-minded individuals who
3 are interested in cryptography could study source
4 code because they could have it posted up there, in
5 your opinion, what is the difference between
6 obtaining or studying the source code through that
7 private Web site as opposed to obtaining it through
8 the 2600 Web sites?
9 A. I think there are two differences. First of all, if
10 discussion was restricted to this private Web site,
11 people with a casual interest would not be able to
12 obtain access to the material. And, secondly, if
13 people were required to only discuss the source code
14 on this private Web site, they would be denied their
15 First Amendment rights.
16 Q. And how would that be, sir?
17 A. Because the First Amendment does not say that one
18 can discuss things in private but not in public.
19 Q. I see. I take it it's your view that the posting of
20 an executable utility on a Web site is a form of
21 discussion?
22 A. Well, let's first be clear about what you mean by
23 executable.
24 Q. Well, I appreciate your point that, perhaps, there
25 isn't a difference. But what I mean is machine
46
1 readable code that can be downloaded and run on a
2 Windows operating system.
3 MR. ATLAS: This is Mr. Atlas. I object
4 to the form.
5 A. My belief is that posting machine executable code is
6 posting speech.
7 BY MR. MERVIS:
8 Q. Are you aware that the DeCSS code is, for example,
9 being offered on the eBay auction site for sale?
10 A. No. I had no idea.
11 Q. Well, assuming, hypothetically, that that were the
12 case, would that be a form of speech or discussion?
13 MR. ATLAS: Objection.
14 Are you referring to the offering for sale
15 or the code itself?
16 MR. MERVIS: I'm talking about the
17 offering for sale of the code.
18 MR. ATLAS: I'll object.
19 But if you can answer that, go ahead.
20 A. My understanding is that such an offer would be
21 commercial speech.
22 BY MR. MERVIS:
23 Q. Let me ask you this: Do you know what DeCSS does?
24 A. Yes.
25 Q. What does it do?
47
1 A. DeCSS converts a DVD file from one format to
2 another.
3 Q. And from what format to what format?
4 A. It converts it from a scrambled format to one where
5 the CSS scrambling has been undone.
6 Q. And is the byproduct of that process a copy of the
7 DVD's VOB files in unencrypted form?
8 A. That's my understanding.
9 Q. We're actually hitting the homestretch here.
10 Let's turn, now, to paragraph seven of
11 your declaration.
12 A. Yes.
13 Q. I'm sorry, just give me one second.
14 Let me read the final sentence of this
15 paragraph. You say, thus I believe the mirror sites
16 are making a political statement, even when the
17 prohibited files are posted without additional
18 commentary.
19 A. That's correct.
20 Q. And that's your opinion, correct?
21 A. Yes.
22 Q. Now, can you tell me, Dr. Touretzky, what skills,
23 education or special experience that you apply, if
24 any, in reaching that opinion?
25 A. It's based on my personal experience. When I first
48
1 read about the California case, my immediate
2 reaction was to put the source code for css-auth on
3 my Web site.
4 Q. And why was that?
5 A. For three reasons: First, because I felt that I had
6 the right to do so and I wanted to exercise my First
7 Amendment right; second, because I felt the
8 plaintiffs were being treated unjustly and I wanted
9 to make a gesture in solidarity with the plaintiffs
10 in the California case; and, third, because I
11 thought the basis of the California case, which was
12 a trade secrets claim, was ludicrous.
13 Q. The plaintiffs in that case or the defendants in
14 that case?
15 A. I thought the plaintiffs' claim in the California
16 case -- the plaintiffs were claiming a trade secret
17 violation. I thought the claim was ludicrous. And
18 being aware that Pennsylvania has not adopted the
19 Uniform Trade Secrets Act, I decided to put the CSS
20 -- the DeCSS source code -- actually, the css-auth
21 source code on my Web site, being a Pennsylvania Web
22 site, where it would not be subject to these
23 ludicrous trade secret claims.
24 Q. I'll get to that in just a minute. I think you may
25 have misspoken.
49
1 MR. ATLAS: Yes. Again, just to clarify
2 the record, and you can have the statement read
3 back, but I think Dr. Touretzky said something along
4 the lines of he posted the code in sympathy for the
5 plaintiffs' position in the California lawsuit.
6 I think you probably meant the defendants'
7 position. But if I'm wrong, why don't we just
8 clarify that now.
9 A. I'm sorry. I meant to say the defendants' position
10 in the California case.
11 BY MR. MERVIS:
12 Q. And I think you may have also said, but let me just
13 ask you: I take it you feel or felt that the
14 defendants in the California case were being treated
15 unjustly; is that correct?
16 A. Yes.
17 Q. Why is that?
18 A. Because the DVD Copy Control Association brought a
19 lawsuit against them when they had no grounds to do
20 that.
21 Q. And is it correct that you similarly feel that the
22 defendants in this case, the Universal City Studios
23 case, are being treated unjustly?
24 A. I think this case is a little bit harder because
25 there's bad law. So I'm -- perhaps one could say
50
1 that the Motion Picture Association is trying to
2 make use of bad law, but at least the claim isn't
3 completely ludicrous.
4 Q. And when you say bad law, you're referring to the
5 Digital Millennium Copyright Act?
6 A. Yes.
7 Q. Now, getting back to paragraph seven, I think the
8 question I posed to you was what skills, education
9 or professional experiences you brought to bear in
10 reaching the opinion that you expressed in paragraph
11 seven. I think you told me that it was personal
12 experience.
13 Apart from the three immediate conclusions
14 that you drew about the California lawsuit, i.e.,
15 that you had sympathy for the defendants' position,
16 the defendants were being treated unjustly and --
17 A. Those two are the same.
18 Q. Right. I'm sorry. -- and that the basis of the
19 plaintiffs' claim was ludicrous --
20 A. And that I wanted to exercise my First Amendment
21 rights.
22 Q. Thank you for correcting me.
23 What other skills, education or experience
24 did you bring to bear in reaching the conclusion
25 expressed in -- or, I'm sorry, the opinion expressed
51
1 in paragraph seven?
2 MR. ATLAS: This is Mr. Atlas. I object
3 as to form, but go ahead.
4 A. Well, I've seen other cases where people posted
5 documents whose distribution had been prohibited.
6 BY MR. MERVIS:
7 Q. I'm sorry, and what cases were they?
8 A. Well, one example is various scientology cases.
9 Q. Right. Okay, I'm sorry. You're not talking about
10 DeCSS?
11 A. That's correct.
12 Q. You're talking about other litigation which I'm
13 fairly familiar with.
14 A. Yes.
15 Q. In reaching the opinion that you state in the last
16 sentence of paragraph seven, did you draw upon any
17 of your experience, educational, practical or
18 otherwise, as a computer scientist?
19 A. Well, I think only the experience that I believe all
20 computer scientists view code as speech. And
21 certainly all the computer scientists that I've
22 spoken with view the attempt to prohibit publication
23 of computer code as an attack on the First
24 Amendment.
25 Q. Okay. I understand.
52
1 But apart from that, apart from that, you
2 can't identify any other skills, education or
3 experience, as a computer scientist, that you
4 brought to bear in reaching the opinion you state in
5 the last sentence of paragraph seven?
6 A. That's correct.
7 Q. Now, getting back to the California case for a
8 minute, and I promise you I'm almost finished, why
9 is it that you believe that the DVD CCA's claims
10 were ludicrous?
11 A. Because one cannot misappropriate a trade secret by
12 downloading a publicly-available file from an
13 Internet Web site.
14 MR. MERVIS: Mr. DeForest, have you
15 received the fax, the one-page fax?
16 MR. DeFOREST: I have.
17 MR. MERVIS: Mr. Atlas, you have that?
18 MR. ATLAS: I've got it.
19 MR. MERVIS: Could we ask the reporter to
20 mark that as Touretzky 2?
21 MR. ATLAS: Is it something entitled MPAA
22 Violating Rights?
23 MR. MERVIS: Correct.
24 - - - -
25 (Touretzky Deposition Exhibit No. 2 marked
53
1 for identification.)
2 - - - -
3 BY MR. MERVIS:
4 Q. Dr. Touretzky, the court reporter has, presumably,
5 passed you a copy of a document I faxed to you that
6 I printed off your Web site this morning.
7 Do you recognize Exhibit 2?
8 A. Yes, I do.
9 Q. Is this something you wrote?
10 A. Yes.
11 Q. Why did you write this?
12 A. I wrote a letter to the editor of the school
13 newspaper, the Tartan, because the previous week the
14 Tartan had run an article about the MPAA objecting
15 to a couple of Web sites at Carnegie Mellon,
16 including mine.
17 Q. I want to direct your attention to the final
18 paragraph. And paying particular attention to the
19 second sentence, which reads, the DMCA is a poorly
20 constructed law written by the industry itself and
21 has not yet been tested in the courts.
22 Did I read that correctly?
23 A. Yes.
24 Q. Is it your opinion, as you sit there today, that the
25 DMCA is a poorly constructed law?
54
1 A. Yes.
2 Q. And is it your belief, as you sit there today, that
3 the DMCA was written by the industry itself?
4 A. I believe there was input from other groups, but I
5 believe the primary impetus for this law was the
6 Motion Picture Industry, at least for this section
7 of the law.
8 Q. This section being the anti-circumvention provision?
9 A. Yes. I think the Motion Picture Industry and the
10 music industry, and I don't easily separate them as
11 a layman, I believe they were the primary impetus
12 for this -- for the anti-circumvention provisions.
13 Q. I see. And what is that belief based on?
14 A. Reading articles about the controversy surrounding
15 the law.
16 Q. Anything else?
17 A. No.
18 Q. In the next sentence you write, it curtails some
19 well-established rights of American citizens in
20 order to advance the economic interests of a private
21 cartel.
22 Did I read that correctly?
23 A. Yes.
24 Q. The private cartel is whom?
25 A. Your clients.
55
1 Q. And the well-established rights are which rights,
2 sir?
3 A. The rights of their use and the Doctrine of First
4 Sale.
5 Q. First sale. Any other rights?
6 A. Not that I can think of at the moment. Well, no, I
7 take that back. The DMCA is being used by your
8 clients in an attempt to circumvent the First
9 Amendment.
10 Q. And how is that, sir?
11 A. Because they're using the anti-circumvention
12 provisions to suppress speech.
13 Q. And taking a look at the very last sentence of the
14 Exhibit 2, you write, the MPAA's attempt to
15 interfere with speech it doesn't like should be
16 rejected and roundly condemned.
17 Did I read that correctly?
18 A. Yes.
19 Q. Is that still your belief, as you sit there today?
20 A. Yes, it is.
21 Q. And in writing that sentence, are you referring in
22 particular to this lawsuit, the Universal City
23 Studios lawsuit?
24 A. Both this suit and the California case.
25 MR. MERVIS: If you could just give me one
56
1 moment to review my notes.
2 THE WITNESS: Sure.
3 - - - -
4 (There was a brief pause in the proceedings.)
5 - - - -
6 BY MR. MERVIS:
7 Q. Let me just give you one more hypothetical.
8 You're familiar with devices that are
9 used, for example, to descramble scrambled cable
10 television signals?
11 A. I know that they exist.
12 Q. Would the distribution of such devices, whether or
13 not for profit, would that be a form of speech
14 that's protected by the First Amendment, in your
15 view?
16 MR. ATLAS: This is Mr. Atlas. I'm going
17 to object to that question. A couple things: I'm
18 not clear what you mean by devices. I believe this
19 is outside the scope of this witness's testimony and
20 may be outside of the scope of this witness's
21 knowledge. I think the question is objectionable on
22 a couple of grounds.
23 If the witness understands it and can
24 answer it, I'll let him attempt to do so.
25 BY MR. MERVIS:
57
1 Q. Dr. Touretzky, do you remember the question?
2 A. Yes, I do.
3 Q. Are you able to answer it?
4 A. Yes. I think one has to distinguish between three
5 classes of things. If the device that you have in
6 mind is merely a software program, then that device
7 is speech, and it may not be prohibited.
8 If the device in question is a physical
9 device, something that you can hold in your hand,
10 then whether that device's distribution should be
11 prohibited or not would depend on the uses for which
12 the device was intended.
13 So the ability to descramble scrambled
14 cable signals is not, of itself, grounds for
15 prohibiting distribution of a device. I think one
16 would have to show whether there were significant
17 non-infringing uses. And if there were no
18 non-infringing uses, then I believe it would be
19 acceptable to prohibit the distribution of the
20 physical device itself, not distribution of plans
21 for how to construct such a device.
22 Q. If you wrote a computer program and someone without
23 your authority got a copy and put it on the
24 Internet, would you have any rights to try to take
25 it down?
58
1 MR. ATLAS: Objection. Again, since the
2 witness is not a lawyer, I don't know whether he's
3 able to sort of answer that from a legal point of
4 view. I think he can express an opinion from a
5 layperson's point of view.
6 MR. MERVIS: Well, that's fine. I'm
7 asking for his opinion from the point of view of
8 David Touretzky, with all of his learning knowledge
9 and experience.
10 A. I'd be happy to give you my opinion about copyright
11 law and to answer your question specifically.
12 BY MR. MERVIS:
13 Q. The opinion on copyright law I'm actually not
14 interested in.
15 A. Okay.
16 Q. Although, perhaps, off the record we could talk
17 about it at length. I'd be happy to. But my
18 hypothetical is really what I'm interested in.
19 A. Okay. Your question was, as I understand it, if I
20 wrote a computer program and someone else obtained a
21 copy of it and put it on the Web without my
22 permission, would I have the right to try and take
23 it down.
24 Q. Right.
25 A. And my answer to that is it would depend whether
59
1 their use of my program fell within fair use or not.
2 If it falls within fair use, I would not have the
3 right.
4 MR. MERVIS: David, there are, obviously,
5 some documents that, you know, we have asked for
6 production of and, hopefully, we'll get them. You
7 know, pending the receipt of an examination of those
8 documents, I have no further questions.
9 MR. ATLAS: Okay. This is Mr. Atlas.
10 Now, the first thing I'd like to do is
11 actually mark as -- let's mark, as Touretzky 3, the
12 e-mail that Dr. Touretzky sent to me. It's dated
13 July 12. I received it today. It's an e-mail, and
14 then it's an essay entitled Source versus Object
15 Code: A False Dichotomy. Let's mark that.
16 - - - -
17 (Touretzky Deposition Exhibit No. 3 marked
18 for identification.)
19 - - - -
20 (There was a discussion off the record.)
21 - - - -
22 MR. ATLAS: Dr. Touretzky said he had the
23 essay but not the e-mail that sent it to me. So
24 I've asked the reporter to mark just the essay part
25 of it.
60
1 MR. MERVIS: That's fine.
2 - - - -
3 EXAMINATION
4 - - - -
5 BY MR. ATLAS:
6 Q. Dr. Touretzky, looking at what we've marked as
7 Exhibit 3, can you tell me what that is?
8 A. This is an essay I wrote about the impossibility of
9 distinguishing source versus object code.
10 Q. And when did you prepare this draft?
11 A. This most recent draft, which I sent to you, I sent
12 last night.
13 Q. And the appendices that are attached, it looks like
14 that there's an Appendix A, Appendix B, C and D, did
15 you prepare those as well?
16 A. Yes.
17 Q. What was the point of preparing this statement?
18 A. Well, in reviewing other depositions in this case,
19 I've noticed that the plaintiffs' attorneys have
20 tried to make a distinction between source code and
21 object code. I believe this has come up as well in
22 some of the arguments in court. And I also noticed
23 that some of the other computer scientists that were
24 deposed tried to explain that that distinction isn't
25 really a valid one, but I'm not sure that their
61
1 point was understood.
2 So I wrote this essay in an attempt to
3 educate both sides as to why it's not valid to make
4 a distinction between high level source code, such
5 as expressed in C, and lower level program
6 representations, including even binary executables.
7 Q. Now, going back to the opinions that you testified
8 you were expressing in this case, I believe there
9 were three of them. I won't restate them because I
10 don't want to be inaccurate. It's already on the
11 record.
12 But I just want to find out whether the
13 basis for those three opinions are set forth in what
14 we've marked as Touretzky Exhibit 3, your essay, as
15 well as Touretzky Exhibit 1, which is your
16 declaration.
17 A. Yes.
18 Q. Let me just go back. I'm looking through my notes
19 here.
20 Can you summarize for me, Dr. Touretzky,
21 the experience that you bring to bear on the
22 opinions that you've expressed in this case?
23 A. Yes. I've been programming computers since I was 12
24 years old. I'm a faculty member in a computer
25 science department at a major university. I've
62
1 taught computer programming and computer
2 science-related courses to a large number of
3 audiences of different types. And I program myself.
4 I write code. I publish code, and I use computer
5 programming to explore ideas.
6 Q. The Gallery that has been referred to during your
7 testimony here, what was the point you were trying
8 to communicate with your creation of the Gallery?
9 A. Well, the real point is that Judge Kaplan tried to
10 make a distinction that doesn't hold up. He, in
11 trying to protect at least some of the defendants'
12 First Amendment rights, he declined to enjoin
13 discussion in plain language of the decryption
14 algorithm. He only enjoined publication of what he
15 viewed as executable code.
16 What the Gallery shows is that there's no
17 distinction to be made there, that the C source code
18 can be trivially transformed into plain English, and
19 the reverse can also be done.
20 So in attempting to enjoin one thing and
21 not the other, he's tried to make a distinction that
22 doesn't really exist.
23 Q. Well, let me ask you a question that accepting
24 plaintiffs' argument there is a danger in posting
25 the source code for DeCSS, would the same danger
63
1 exist posting the English translation of the source
2 code for DeCSS?
3 A. Absolutely.
4 MR. ATLAS: I'm just looking through your
5 declaration, just looking through some notes. So if
6 you'll give me a minute, if you don't mind.
7 THE WITNESS: Sure.
8 - - - -
9 (There was a brief pause in the proceedings.)
10 - - - -
11 BY MR. ATLAS:
12 Q. Turning to page three of your declaration, paragraph
13 five.
14 A. Yes.
15 Q. Looking at the first two sentences, and I'll read
16 them just to make sure that we're all on the same
17 page, it says, my Gallery is a combination of
18 scientific dialogue and political statement. In
19 comparing the, quote, anonymous C source code, end
20 quote, for CSS decryption with the code in css --
21 I'm not quite sure what that --
22 A. Underscored.
23 Q. Lower case --
24 A. It's an underscore.
25 Q. -- underscore descramble.c (part of the css-auth
64
1 package), I discuss certain structural and strategic
2 differences between the two implementations of the
3 decryption routine. Without access to the source
4 code, I would never have been able to discern these
5 differences or present them to the world for
6 commentary online.
7 Is that accurate?
8 A. Yes.
9 Q. Could you just explain to me the second sentence
10 here, why you would never have been able to discern
11 the differences or to present them to the world for
12 commentary online?
13 A. Well, the differences are differences in
14 implementation of an algorithm. If one merely
15 describes the algorithm in abstract terms,
16 implementation details don't come up. It's only by
17 observing these two implementations of the algorithm
18 as C source code that I can draw distinctions
19 between the two implementations.
20 Q. You may have answered this already, but I'm going to
21 ask the question -- a slightly different question, I
22 think: Is it your testimony and your belief that
23 there is a particular value to show the source code
24 as opposed to the English translation in connection
25 with the discussion of encryption technologies or
65
1 other academic pursuits?
2 A. Well, if you translate the source code line by line
3 into English, as I've done in the Gallery, then
4 there's no particular value in using one over the
5 other. But there are many other ways to describe
6 the algorithm in English that don't correspond one
7 for one with lines of C source code. And some of
8 those ways are vague. And, therefore, you can't
9 have discussions about implementations of something
10 that's too vague to count as an implementation.
11 MR. MERVIS: I'm sorry, Edna, can I have
12 the question and answer read back?
13 THE COURT REPORTER: Sure.
14 - - - -
15 (The record was read back by the Reporter.)
16 - - - -
17 BY MR. ATLAS:
18 Q. Turn to Touretzky 1, again. If you could just turn
19 to page five of that.
20 A. Yes.
21 Q. Is that your signature on page five?
22 A. Yes.
23 Q. And other than the fact that your name doesn't
24 appear in the more formal way that you would have
25 hoped on page one, is everything in here accurate,
66
1 to the best of your knowledge?
2 A. Yes.
3 MR. ATLAS: I don't believe I have any
4 further questions.
5 MR. MERVIS: I may have one or two.
6 - - - -
7 RE-EXAMINATION
8 - - - -
9 BY MR. MERVIS:
10 Q. Dr. Touretzky, what skills would one need to take
11 the English translation of DeCSS source code and
12 cause a decryption of a DVD disk?
13 MR. ATLAS: Objection to the form. But if
14 he can answer, go ahead.
15 A. Well, that's a long process.
16 BY MR. MERVIS:
17 Q. You know, I'm sorry. I meant to say DVD movie.
18 But, in any event, take me through the long process.
19 A. Okay. Well, first you would have to translate the
20 English back into C. That's trivial. Anyone who's
21 had the most elementary knowledge of C programming
22 would be able to do that.
23 Having done that, one would then go
24 through the normal steps of compiling the C program,
25 and then I believe that the C program would have to
67
1 be linked with some library files. So these are all
2 things that any basic -- any elementary programmer
3 could do. Someone who's taken a single college
4 course in computer programming should be able to do
5 that.
6 Then one would have to acquire a DVD
7 player and somehow connect it to a computer. I
8 think, pretty much, anybody can do that. No special
9 skill is required. Then one would have to run the
10 program, and pretty much anyone can do that.
11 Q. So if one were conversant in C computer programming
12 language and had taken and been reasonably
13 successful in an entry-level college computer
14 science course and then had the necessary equipment,
15 one could take your English language translation of
16 the DeCSS source code and at the end wind up with an
17 unencrypted copy of a DVD movie; is that correct?
18 A. I believe so.
19 MR. ATLAS: I object as to form, but go
20 ahead. The answer is?
21 A. I believe that's correct.
22 MR. MERVIS: Again, pending the receipt of
23 the documents, I don't have any further questions.
24 MR. ATLAS: Thank you very much.
25 Mr. Touretzky and Edna and everybody else
68
1 on the line, thank you for helping make this come
2 together.
3 - - - -
4 (The proceedings were concluded at 2:40 p.m.)
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69
1 COMMONWEALTH OF PENNSYLVANIA ) CERTIFICATE
2 COUNTY OF ALLEGHENY ) SS:
3 I, Edna Loudenslager, RPR, a Court Reporter and
4 Notary Public in and for the Commonwealth of Pennsylvania,
5 do hereby certify that the witness, DR. DAVID S.
6 TOURETZKY, was by me first duly sworn to testify to the
7 truth, the whole truth, and nothing but the truth; that
8 the foregoing deposition was taken at the time and place
9 stated herein; and that the said deposition was recorded
10 stenographically by me and then reduced to printing under
11 my direction, and constitutes a true record of the
12 testimony given by said witness.
13 I further certify that I am not a relative, employee
14 or attorney of any of the parties, or a relative or
15 employee of either counsel, and that I am in no way
16 interested directly or indirectly in this action.
17 IN WITNESS WHEREOF, I have hereunto set my hand and
18 affixed my seal of office this 14th day of July,
19 2000.
20
21
22
23 __________________________________
24 Notary Public
25