TXT - 2600 The Hacker Quarterly by wuyunyi

VIEWS: 4 PAGES: 212

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 2             UNITED STATES DISTRICT COURT

 3             SOUTHERN DISTRICT OF NEW YORK

 4
     UNIVERSAL CITY STUDIOS, INC.;       )
 5   PARAMOUNT PICTURES CORPORATION;     )
     METRO-GOLDWYN-MAYER, INC.; TRISTAR  )
 6   PICTURES, INC.; COLUMBIA PICTURES   )
     INDUSTRIES, INC.; TIME WARNER       )
 7   ENTERTAINMENT CO., L.P.; DISNEY     )
     EMTERPRISES, INC.; AND TWENTIETH    )
 8   CENTURY FOX FILM CORPORATON,        )
                                         )
 9                                       )
                      PlaintiffS,        )00 Civ. 277
10                                       )(LAK)(RLE)
                   vs.                   )
11                                       )
     SHAWN C. REIMERDES; ERIC CORLEY     )
12   A/K/A "EMMANUEL GOLDSTEIN";         )
     ROMAN KAZAN; AND 2600               )
13   ENTERPRISES, INC.                   )
                                         )
14                    Defendant.         )
     ------------------------------------)
15

16

17          CONTINUED VIDEOTAPED DEPOSITION OF

18                 EMMANUEL GOLDSTEIN

19                 New York, New York

20              Wednesday, June 28, 2000

21

22

23

24   Reported by:
     Thomas R. Nichols, RPR
25   JOB NO. 110289
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 7                    June 28, 2000

 8                    10:20 a.m.

 9

10        Continued videotaped deposition of

11   EMMANUEL GOLDSTEIN, held at the offices

12   of Proskauer Rose LLP, 1585 Broadway,

13   New York, New York, pursuant to Notice,

14   before Thomas R. Nichols, a Registered

15   Professional Reporter and a Notary Public

16   of the State of New York.

17

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                                                  167
 1

 2   A P P E A R A N C E S:

 3

 4        PROSKAUER ROSE LLP

 5        Attorneys for Plaintiffs

 6              1585 Broadway

 7              New York, New York 10036-8299

 8        BY:   LEON GOLD, ESQ.

 9              DAVID KRULWICH, ESQ.

10                   -and-

11        MOTION PICTURE ASSOCIATION OF AMERICA

12              15503 Ventura Boulevard

13              Encino, California 91436

14        BY:   MARK D. LITVACK, ESQ.

15

16        FRANKFURT GARBUS KLEIN & SELZ, PC

17        Attorneys for Defendants

18              488 Madison Avenue

19              New York, New York 10022

20        BY:   MARTIN GARBUS, ESQ.

21

22   ALSO PRESENT:

23        RUBEN MARTINEZ, THE VIDEOGRAPHER

24

25
                                                                168
 1                        Goldstein

 2                 THE VIDEOGRAPHER:    The time is 10:16

 3           a.m. on June 28, 2000, and this is tape

 4           number 3 of the continuation deposition of

 5           Mr. Emmanuel Goldstein.

 6   E M M A N U E L      G O L D S T E I N ,    resumed as a

 7           witness, having been previously sworn by the

 8           Notary Public, was examined and testified

 9           further as follows:

10   EXAMINATION BY (Cont'd.)

11   MR. GOLD:

12        Q.      Mr. Goldstein, just to remind you, you

13   are not being sworn in again, but you are under

14   oath.

15                Has 2600 obtained any donations as a

16   result of this case?

17        A.      Not donations.     It's hard to say, but I

18   am sure we have gotten people to subscribe, buy a

19   hat, buy a T-shirt, whatever it is that we sell,

20   but no donations per se.

21        Q.      Do you have a retainer agreement with

22   Mr. Garbus's firm?

23                 MR. GARBUS:     I will object to it.   Go

24        ahead.

25        A.      Our legal team is paid for by the
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 1                        Goldstein

 2   Electronic Frontier Foundation.    So all financial

 3   information would go through them.

 4        Q.      The Electronic Frontier Foundation is

 5   paying whatever fees are being paid on the case?

 6        A.      That's right.

 7        Q.      Do you know anything -- let me ask you

 8   again.    Did you make any agreement that you know of

 9   with Mr. Garbus or his firm with respect to what

10   you were retaining Mr. Garbus for or how you were

11   paying Mr. Garbus?    And I mean his firm.

12        A.      The only agreement I made with

13   Mr. Garbus is that he is my attorney, he is

14   representing me, he is working for me.

15        Q.      Did you agree to pay fees?

16        A.      The fees, as I said, are being covered

17   by Electronic Frontier Foundation.

18        Q.      As far as you know, that was an

19   agreement between Mr. Garbus and the Electronic

20   Frontier Foundation?

21        A.      Yes.

22        Q.      Is either your agreement or their

23   agreement in writing?

24        A.      I would imagine so.

25                MR. GARBUS:   I would object to this
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 2           line of inquiry.   If the judge requires us

 3           to answer, we'll certainly answer.

 4                MR. GOLD:     Are you, sir, directing

 5           your witness not to answer any questions

 6           about the --

 7                MR. GARBUS:    No.    I think you ought

 8           not to ask it, but I am not directing him

 9           not to answer.

10        Q.      Has the Electronic Frontier Foundation

11   sent out any E-mails requesting contributions?

12        A.      I believe EFF always sends out E-mails

13   requesting contributions, but not just E-mails, but

14   they have a web site.      They have a paper

15   publication.    They have fund-raising events of

16   various sorts.

17        Q.      Did they publish any material on their

18   web site or have any communications in which they

19   solicited contributions to the defense of this

20   case?

21        A.      I couldn't say for sure.

22                MR. GARBUS:    Then don't speculate.

23        A.      Specifically --

24                MR. GARBUS:    Don't speculate.

25        A.      I don't know specifically.
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 2        Q.    You don't know one way or the other.

 3        A.    No.

 4   RQ         MR. GOLD:    Mr. Garbus, I do request any

 5        written material relating to any agreements

 6        with Electronic Frontier Foundation relating

 7        to this case.

 8              MR. GARBUS:    I will take it under

 9        advisement.

10        Q.   Do you have any documents relating to

11   the Electronic Frontier Foundation?    I don't mean

12   E-mail communications you see by computer, but any

13   documents at all relating to the Electronic

14   Frontier Foundation?

15        A.   No.

16        Q.   Have you ever broken into a computer

17   that doesn't belong to you?

18             MR. GARBUS:     Objection.

19        A.   In the past, in the 1980s, yes.

20        Q.   How many times?

21        A.   I don't know a specific number of times.

22             MR. GARBUS:     I object to the question.

23        Q.   More than ten?

24        A.   Probably.

25        Q.   Do you remember who owned any of the
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 2   computers you broke into?

 3               MR. GARBUS:    Objection.

 4        A.     The computers were all owned by the

 5   company I mentioned yesterday, Telenet.

 6        Q.     A telephone company?

 7        A.     No, it's -- it was a communications

 8   company.   I believe they later merged with GTE.

 9        Q.     And all of the computers as far as you

10   remember that you broke into were owned by them?

11        A.     Yes.

12        Q.     You have never broken into anyone else's

13   computer --

14        A.     No.

15        Q.       -- in the nineties.

16        A.     Oh, no.

17        Q.     For what purpose did you break into

18   their computers?

19               MR. GARBUS:    I presume, Mr. Gold, to

20        save time I have a continuing objection to

21        the entire line of questioning.

22               MR. GOLD:    Yes, sir.

23        A.     Back then I was just curious.   It was

24   new technology.

25        Q.     Why break into their computers rather
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 2   than Bell Telephone or the Pentagon computers or

 3   government computers?       Why did you choose them?

 4           A.    This was before the Net was actually a

 5   very popular thing.     This was kind of the early

 6   days.     So people were still feeling around.       And as

 7   I mentioned yesterday, they had a one-letter

 8   password, so it wasn't exactly difficult.

 9                 I should stress that it caused no harm.

10   All we used it for was communicating amongst

11   friends.     I explained everything and helped their

12   security system become stronger as a result.

13        Q.       But didn't you take material from their

14   computer that could be used by yourself or other

15   people to make free telephone calls?

16        A.       No.   There was no such material, no.

17        Q.       What did you find in there that you

18   took?

19                 MR. GARBUS:    Object to the form of the

20        question.

21        A.       We didn't take anything.    It was a

22   computer.     We didn't have computers back then.      It

23   was something to explore, something -- something to

24   learn about.    We learned how it worked.     We

25   communicated amongst ourselves, and that's the
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 2   extent of it.

 3                 MR. GOLD:    This is Exhibit 5.

 4                 (Handing.)

 5        Q.       If, Mr. Goldstein, if you could turn to

 6   page 4, paragraph 13.

 7        A.       Yes.

 8        Q.       The first line of that paragraph states,

 9   quote, "While I don't practice or condone breaking

10   into computer systems," and the sentence goes on

11   from there.

12              Is that true?

13        A.    Yes.

14        Q.    You mean it's true for the nineties, but

15   not for the eighties.

16        A.    That's a present tense sentence.

17        Q.    It's a present tense.      So in other

18   words, you did at one time in your life practice

19   and condone breaking into computers; is that true?

20              MR. GARBUS:      Object to the form of the

21        question.

22        A.    I wouldn't go so far as to say I

23   condoned, encouraged other people to do anything.

24   I have made mistakes of my own in the past, and I

25   have learned from them and moved on.
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 2        Q.     When you used the word "condoned" in

 3   your answer, what did it mean to you?

 4        A.     On this line here?   Encourage people --

 5        Q.     In your answer you used the word --

 6        A.     My meaning of the word "condone" was to

 7   encourage people to do something.

 8        Q.     And you never encouraged anybody to

 9   break into that company's security system?

10        A.     No.    I didn't encourage people to do

11   that and I haven't encouraged people to do anything

12   like that since.

13        Q.     And you just did it yourself back in the

14   eighties.

15        A.     Yes.   And met other people who had found

16   the same hole that I had found.

17        Q.     The next sentence, which is the last

18   line on page 4, begins on the last line on page 4,

19   says, "Through the magazine and the radio program,

20   I try to instill a sense of responsibility in those

21   who may consider doing such things, so that they

22   carefully think about their actions and don't cause

23   any damages."

24               Are you referring to specific magazine

25   articles or editorials?
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 2               MR. GARBUS:   I object to it.   The

 3        sentence speaks for itself.   There is no

 4        reference there to particular articles.      It

 5        is a sentence in an affidavit.     I don't

 6        think it requires interpretation.      I object

 7        to the form.   I don't see any reference to

 8        any other magazine article.

 9        A.     It's a general statement about the

10   magazine.   Not any specific article.

11        Q.     Did you ever write anything for the

12   magazine where you tried to instill a sense of

13   responsibility in people who may consider breaking

14   into computers so they think about their actions?

15        A.     We try to get people to think about

16   their actions before they do something, such as

17   break into a computer, and hopefully not do

18   something like that.

19        Q.     My question to you is, do you remember

20   writing any, and if you don't remember, just tell

21   me, do you remember writing any editorials or

22   stories where you told people in so many words,

23   don't break into computers?

24               MR. GARBUS:   Mr. Goldstein, do you

25        want to look through some magazines that we
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 2        have here?

 3        A.      I can say that that's something that I

 4   have said.   I can't point to a specific article,

 5   but I know that's a viewpoint that I've expressed.

 6   People shouldn't break into computers for various

 7   reasons.

 8        Q.      I am going to ask you to identify the

 9   article or editorial that you wrote for the 2600

10   publication which says that and leave a space in

11   the answer for you to do so.

12   TO BE FURNISHED: _________________________________

13   __________________________________________________.

14                MR. GARBUS:   Excuse me.    Did we make

15        clear to you that we brought some additional

16        copies?

17                MR. GOLD:   This morning?

18                MR. GARBUS:   Yes.

19                MR. GOLD:   But heavens, if I read them

20        it will take me for the rest --

21                MR. GARBUS:   Let the record indicate I

22        think that we are giving you 21 additional

23        copies.

24                MR. GOLD:   I thank you.    I think that

25        also responds to my specific request
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 2           yesterday for all copies of the magazine.

 3           Q.      And I gather that's the ones you

 4   readily found.

 5           A.      Those are the ones in your initial

 6   request.      There is another stack coming today

 7   FedEx.       You should have that.

 8           Q.      Thank you.    I appreciate that.

 9                   MR. GARBUS:    Off the record.

10                   (Discussion off the record.)

11        Q.         The last sentence in paragraph 13, which

12   is contained on page 5, says, "I also try to

13   instill a sense of reality into the mainstream so

14   that the actions of such people are judged in a

15   more even-handed way and so that people aren't sent

16   to prison for relatively minor offenses."

17                   What were the relatively minor offenses

18   you had in mind in that sentence?

19        A.         Offenses that don't cause any kind of

20   damage, that don't cause any kind of financial

21   loss.

22        Q.         Who, as you understood it when you wrote

23   this, who was going to make the judgment of whether

24   or not it caused damage or financial loss?

25        A.         A court of law.    Inside a court of law.
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 2   If no damage is found.

 3        Q.      But a court of law doesn't get into it

 4   until the computer is broken into and sometimes not

 5   even then.    In other words --

 6                MR. GARBUS:   I object to the question.

 7        Q.      Again, I am trying to find out which are

 8   the relatively minor offenses that you had in mind?

 9        A.      They're all kinds of relatively minor

10   offenses.

11        Q.      Yes.   And some major offenses.

12        A.      Such as hacking a web page for instance

13   and changing a single file, but leaving the

14   original.    That's just one example.

15        Q.      Do you consider circumventing a

16   protective device that protects digital

17   intellectual property a minor offense?

18                MR. GARBUS:   I object to it.

19        A.      That is a very general question.   And I

20   am not a lawyer, so I can't really....

21        Q.      Well, I didn't ask you to give a legal

22   answer.     I am asking you, sir, whether you consider

23   now the circumvention of a protective device that

24   protects digital electronic property to be a minor

25   offense.
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 2                 MR. GARBUS:    I object to it.   He has

 3        already testified that he is not a lawyer

 4        and he doesn't know what the statutes

 5        provide for that kind of conduct.

 6        Q.       I am just asking, sir, if you consider

 7   it to be a minor offense.      Do you have an answer?

 8        A.       Again, I think it's a very general

 9   question.

10        Q.     I know.    Do you have a general answer?

11               MR. GARBUS:      Just say you can't

12        answer.

13        A.     I can't answer

14   MO          MR. GOLD:    I know it's kind of

15        old-fashioned, Mr. Garbus, but I really do

16        object to a lawyer telling his witness what

17        to say.    You can make an objection to the

18        question if you want to.      I suppose you can

19        direct him not to answer so we have to take

20        it to the court.       But I think the one thing

21        you can't do is say, quote, just say you

22        don't know.

23               MR. GARBUS:      He has already said that.

24               MR. GOLD:    Yes, I don't think that's

25        right.    I am a little old-fashioned, and if
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 2        it happens again I am going to take it to

 3        the court.   And I don't want to do that.   So

 4        I am pleading with you.

 5              MR. GARBUS:    OK.

 6        Q.    Have you ever watched a decrypted movie?

 7        A.    I have never watched a DVD if that's

 8   what you're asking.

 9        Q.    Have you ever watched a decrypted DVD?

10        A.    No.

11        Q.    Do you believe there are a few bad

12   hackers?

13              MR. GARBUS:    I object to the form of

14        the question.

15        A.    I believe any group has bad people, yes.

16        Q.    How would you define "bad hackers"?

17        A.    I would define bad hackers as people who

18   don't subscribe to the overall philosophy of

19   causing no harm, not intruding on people's privacy,

20   not violating the laws.   General common sense

21   things.

22        Q.    Those people are good hackers?

23        A.    Those are bad hackers, people who

24   violate those particular values which are part of

25   the hacker world.
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 2        Q.     Am I correct that traffic to 2600 on the

 3   Internet has substantially increased since the

 4   beginning of this lawsuit?

 5        A.     It's -- as I said, we don't keep logs,

 6   so it's difficult to say for sure.   I would imagine

 7   it has.    But it's really -- we don't sell anything

 8   on our web site.    We don't have advertisements

 9   there, so there's no real advantage to us to have,

10   say, 50,000 people instead of 30,000 people a day.

11        Q.     Well, tell us where the income, if any,

12   that 2600 has comes from?

13        A.     Everything comes from the magazine or

14   the things that we sell, such as T-shirts and hats.

15        Q.     When you say "everything comes from the

16   magazine," do you mean the hard copy magazine?

17        A.     Yes, the hard copy magazine.   We make

18   nothing off the web site.

19        Q.     What is the amount of your subscription

20   in dollar terms to you?

21        A.     I don't readily have that information in

22   my head.   I know that our circulation is around

23   65,000 per issue.

24        Q.     And you sell one-year subscriptions?

25        A.     One-year.   We sell one-year, two-year,
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 2   three-year subscriptions.

 3           Q.   For how much?

 4           A.   $18 for a year in the United States.

 5           Q.   Is it your understanding that movies are

 6   now capable of being transmitted over the Internet?

 7           A.   No.

 8           Q.   You don't know that.

 9           A.   No, it's my understanding that that's

10   not possible.

11        Q.      Not possible?

12        A.      At the current -- the current standing

13   in time, no, that's not possible.

14        Q.      Where did you get that?   What do you

15   know that causes you to say that?

16        A.      Band width issues.   It would take an

17   incredible amount of band width to transmit a movie

18   in any viable form.   Just an incredible amount of

19   time.

20           Q.   What other information do you possess

21   that leads you to the conclusion that you gave me

22   in your last answer, the answer that you gave to

23   the question I asked you?

24        A.      Just knowledge of that technical ability

25   or lack thereof, and watching developments on the
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 2   Net.   Transmitting of video material on the Net is,

 3   if anything, in its infancy.     A long way off.

 4          Q.   Why does the current state of band

 5   widths available make it impossible to transmit

 6   movies on the Internet?

 7          A.   Well, a movie, using a DVD as an

 8   example, would be something on the order of I

 9   believe 12, 13 gigabytes of data, and I don't have

10   a calculator handy, I don't know if I could do the

11   math, but most people today in certainly

12   residential situations rarely exceed a 56K modem.

13               DSL is still pretty much in its infancy,

14   especially around here.   And to transmit something

15   of that size would take an incredible -- we're

16   talking days, if not weeks.     And economically it

17   doesn't make any sense either.     So technologically,

18   economically, it's fantasy.

19          Q.   So it just doesn't happen.    Movies are

20   not transmitted over the Internet.

21          A.   Not that I'm aware of.

22          Q.   Did you ever hear of IRC channels?

23          A.   Yes.

24          Q.   What are they are?

25          A.   Internet relay chat.   That's a way
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 2   people communicate back and forth.

 3         Q.    Are there movies transmitted over IRC

 4   channels?

 5         A.    I can't imagine.    I know there are some

 6   Internet relay chat channels where people transmit

 7   still images, you know, pictures, various pictures

 8   of themselves, whatever.   That's about the extent

 9   of how far that's developed.     I can't imagine them

10   transmitting movies over something like that.

11               MR. GARBUS:   Are we talking about

12         movies that come off DVDs or camcorders or

13         any movies of any kind?    I'm just not clear.

14               MR. GOLD:   I asked him if any movies

15         of any kind were.

16         Q.    Your answer wouldn't be different, would

17   it?

18         A.    If you're talking about a 3-second

19   movie, maybe it would be a little different.     I

20   assume you're talking about commercial films and I

21   have never heard of a case like that.

22         Q.    Well, I am talking about movies that

23   certainly exceed an hour in duration.

24         A.    My answer stands.

25         Q.    Was your understanding of the current
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 2   state of technology with respect to band widths and

 3   your understanding that movies are not being

 4   transmitted over the Internet one of the reasons

 5   you posted DeCSS?

 6                 MR. GARBUS:   I will object to that.

 7        A.       No, it's not related to that.   We posted

 8   DeCSS as journalists.

 9        Q.       So is it true that you would have posted

10   DeCSS regardless of whether band widths were very

11   developed or movies were being transmitted over the

12   Internet?

13        A.     It's not related to that issue.    In

14   fact, it's not even related to transmitting videos

15   or copying or anything like that.

16        Q.     So your answer is yes.

17        A.     Yes, it's an encryption issue.

18        Q.     What do you know of the current state of

19   technological improvement with respect to band

20   widths, making them available to the general public

21   at lower and lower prices?

22               MR. GARBUS:     I object to the form of

23        the question.     I ask the witness not to

24        speculate about things he doesn't know

25        about.
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 2        A.      I know a bare minimal amount.

 3        Q.      Let's hear it, if we may.

 4        A.      Things are advancing slowly.    We're

 5   slowly moving into DSL.   Which basically gives

 6   subscribers more than 56K access, speeds

 7   approaching cable modems.    Still not nearly enough

 8   to transmit anything as complex as a video with

 9   sound.

10        Q.      Who told you that?

11        A.      Nobody told me this.   It's common

12   knowledge.   This is what I get from reading

13   magazines in this industry and basically

14   communicating with people.

15        Q.      Did you read all of the affidavits

16   submitted by your counsel in this case?      There were

17   about 18 or 20 of them.   Most of them from alleged

18   experts.

19        A.      I can't say I've read every word of all

20   of them, but I definitely read some of them.      A

21   good part of them.

22        Q.      Do any of them say that movies can be

23   transmitted over the Internet?

24        A.      I wasn't aware of any of them saying in

25   the present movies can be transmitted over the
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 2   Internet, no.

 3        Q.      Do you know of any ongoing efforts right

 4   now to make DSL available to whole communities at a

 5   time?

 6        A.      No, I don't.

 7        Q.      Are DSLs available in every college

 8   campus in the United States?

 9        A.      No, I don't believe DSL is marketed to

10   campuses.    I think they use what is known as a T-1

11   or basically whatever the campus uses.

12        Q.      Those are broadband.

13                MR. GARBUS:    I object to the form of

14        the question.

15        Q.      Are those broadband?

16        A.      I don't believe so, no.   I don't believe

17   colleges are either.

18           Q.   Is cable modem available, are cable

19   modems available in Manhattan today on the Time

20   Warner cable?

21        A.      I don't know about Time Warner.   I know

22   RCN offers them.

23        Q.      What are they as you understand it?

24        A.      I can't give you an exact speed, but

25   basically they allow you access to the Internet at
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 2   higher speeds if there aren't people in your

 3   immediate loop, meaning your neighbors who also

 4   have cable modems.       With every person that uses a

 5   cable modem in your area, your speed is reduced by

 6   half.

 7           Q.   If you have a cable modem that works,

 8   can movies be transmitted on that cable modem?

 9           A.   It can -- it will still take a very long

10   time.

11        Q.      How long?

12        A.      A movie can be transmitted on a 300-baud

13   modem, but it would take a year to do it.       It is

14   not practical.    It makes no sense.    It's completely

15   uneconomical if you're looking to save money or

16   something like that.      And cable modems are not very

17   fast either.

18        Q.      Are you familiar at all with what the

19   expert affidavits submitted in your behalf in this

20   case say about the amount of time it would take to

21   transfer a movie?

22        A.      I don't have the number in my head.

23        Q.      Or to copy a movie?

24        A.      I don't have that number in my head

25   either.
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 2        Q.    Do you know they said it was possible to

 3   transmit and copy movies that have been decrypted?

 4              MR. GARBUS:     I will object to your

 5        statement.   If you want to show him the

 6        affidavit, then I think that's the

 7        appropriate --

 8        Q.    Do you recall any such statement?

 9        A.    I don't recall that, but I would like to

10   see it.

11        Q.    Do you know whether or not there are

12   hundreds of movies being transmitted between people

13   having access to IRC channels on a daily basis?

14        A.    No, I never heard of a single one.

15        Q.    Have you heard that there are thousands

16   of such things go on --

17        A.    No.

18        Q.    -- on a daily basis?

19              You never heard of any such thing.

20        A.    No.

21        Q.    Does the expression "compression

22   technology" have any meaning to you?

23        A.    Compression technology?    It has some

24   meaning to me.

25        Q.    What is that?
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 2        A.       It's basically a method of compressing

 3   data so that it becomes somewhat smaller and can be

 4   transmitted faster.

 5        Q.       Well, if you have a two-hour movie do

 6   you have any idea how long -- how much it can be

 7   reduced by using compression technology?

 8        A.       My understanding is it would not be

 9   significant, if at all.

10        Q.    What do you mean by significant?

11        A.    Anything greater than, say, 5 percent, I

12   couldn't -- I am aware that it cannot be

13   compressed.

14        Q.    Who told you that?

15        A.    Again, this is general knowledge.    I am

16   not an engineer, so I can't point to a specific

17   source, but it's my general understanding that

18   that's not a viable means of transmitting large

19   files of that nature.

20        Q.    Can you give us any clue as to where you

21   obtained this knowledge?

22        A.    Again, just through general

23   conversations, reading publications.     I can't point

24   to a specific source, no, I'm sorry.

25        Q.    Is it true that illegal copying has
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 2   nothing to do with DeCSS?

 3         A.   Yes.   That's true.

 4         Q.   What do you understand is illegal

 5   copying?

 6         A.   Making a copy of something that you are

 7   not authorized to make a copy of.

 8         Q.   What is your understanding of the word

 9   "copy"?

10         A.   To make a duplicate of.

11         Q.   Is it your belief that copying a file

12   isn't the same thing as taking it?

13              MR. GARBUS:   Object.

14         A.   While not legal, it is different from

15   stealing, because when you steal something it is no

16   longer in the place you took it from.   So yes, I do

17   believe there is a difference.

18         Q.   Are there other differences?

19         A.   That's the only difference I can think

20   of.

21         Q.   Tell me the difference between stealing

22   a book by taking it or stealing a book by running a

23   full copy of it off and taking the copy.

24              MR. GARBUS:   I object to the question.

25         I object to the witness being asked to
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 2        speculate.   I think that the judge yesterday

 3        had difficulty with my speculations.

 4               MR. GOLD:     I am not asking -- I don't

 5        want the witness to speculate either.

 6               MR. GARBUS:    The witness is not a

 7        lawyer and you should indicate, should

 8        really indicate, the legal consequences --

 9   MO          MR. GOLD:     I think you're telling him

10        how to testify.     I don't know how much I can

11        beg to stop it so we don't have these petty

12        things before the judge.

13               MR. GARBUS:    I object to it.

14        A.     I believe if you are copying something

15   and the original is still there, it's not as --

16   it's not the same thing as taking the original so

17   that nobody else can access it.     I am not saying it

18   is right.   It is very definitely wrong., but it's

19   not the same thing.     It is apples and oranges.

20        Q.     I see.   Thank you.

21               Do you believe that when a hacker is

22   violating the law they should be charged with

23   violating a particular law?

24        A.     They should be charged with violating

25   whatever law they violated, yes.
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 2        Q.    Has that charge been made against you in

 3   this case, the charge that you're violating a

 4   particular law?

 5        A.    I am not a lawyer.    I can't really

 6   interpret how these laws are written.

 7        Q.    What have you been charged with here?

 8        A.    I have been charged with -- my

 9   understanding, a violation of the Digital

10   Millennium Copyright Act, which I believe is still

11   being interpreted in courts.

12        Q.    Which violation?

13        A.    I would have to look at the actual

14   charges.

15        Q.    You don't remember?

16        A.    Not specifically.

17        Q.    Did 2600 magazine ever publish any

18   articles on DVD security systems prior to the hack

19   appearing on the Internet?

20        A.    Not that I recall, no.

21        Q.    When did you first learn about DeCSS?

22        A.    I first learned when it was initially

23   posted and when there was some controversy

24   surrounding people being intimidated into taking

25   the material off their web sites.    That's when we
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 2   started to take an interest in it.

 3        Q.     What do you mean when you say I learned

 4   when it was posted?     You saw it on the Internet?

 5        A.     I saw mention of it.     I visited some of

 6   the sites and saw what was being said about it.       I

 7   realized what it was about.       And it became a news

 8   story that we were interested in.

 9        Q.     Did any of the sites you visit talk

10   about copying or getting free movies?

11        A.     No.

12        Q.     None.

13        A.     I didn't see it on any of the sites I

14   went to, no.

15        Q.     How many did you go to?

16        A.     At that time probably about three, four.

17        Q.     Why did you stop at that, do you

18   remember?

19        A.     It's basically the same thing over and

20   over again as far as mirrors of the files,

21   explanations.     Once you understand what it's about,

22   there's no real need to go to other sites to get

23   the same explanation.

24        Q.     That was in approximately October 1999

25   or do you have a recollection of a different date?
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 2          A.   I know it was the fall.   It was either

 3   October or November.     I don't remember specifically

 4   which.

 5          Q.   How soon after you visited these three

 6   or four sites that you just mentioned did you

 7   decide to post?

 8          A.   As soon as we saw that people were being

 9   harassed and intimidated, that became the story for

10   us, the fact that a technological development was

11   seen as a crime.   It had nothing to do with

12   stealing or copying.   It was basically talking

13   about encryption, and people were being scared into

14   not doing this, and that's when we realized this

15   was much bigger than just figuring out encryption.

16   This was about speech.

17          Q.   How were people being intimidated?    What

18   was your understanding at that time?

19          A.   My understanding was letters were being

20   sent to Internet service providers that had given

21   people accounts and they were being pressured to

22   turn off those people's access.    In many cases they

23   did.   People were being threatened with all kinds

24   of legal action, and it really had a chilling

25   effect.
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 2        Q.    So is it true that the harassment you're

 3   talking about consisted of letters being sent to

 4   people saying they were violating the law and

 5   asking them to stop it?

 6        A.    It was -- I don't recall the exact

 7   phrasing of the letters, but that's my

 8   understanding, that it was letters being sent both

 9   to them and to the people who provided them

10   Internet access and just an unprecedented amount of

11   pressure being put upon them just for talking about

12   something, just for showing people how something

13   works.

14        Q.    Did you then believe that people had a

15   right to ask people to stop violating a law if they

16   believed that the law was being violated and it

17   affected them?

18              MR. GARBUS:    I object to the question.

19        What he has described already, he is working

20        as a journalist writing a story.    I object

21        to the question.

22              MR. GOLD:    I didn't ask that question.

23        Well, he says he is a journalist many times.

24        He said he was writing a story.    But I asked

25        him if he believed at the time he found out
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 2        people were getting letters asking them to

 3        stop violating the law whether or not people

 4        had a right to send such letters if they

 5        believed they were being harmed and the law

 6        was being broken.

 7              MR. GARBUS:     I object to it.

 8        Q.    Do you have an answer for that?

 9   MO         MR. GARBUS:     I object to the question.

10        He is not a lawyer.    Go ahead.

11        A.    Again, I am not a lawyer, but I saw

12   those letters as intimidation tactics more than

13   simply a request, if you're violating the law,

14   please don't do that.    Obviously people know not to

15   violate the law.   This was something that was

16   common on the Internet, talking about technology,

17   and all of a sudden people were being told not to

18   do that and being threatened in ways they had never

19   been threatened before.    And it wasn't only us.   It

20   was dozens, hundreds of other Internet sites that

21   were drawn into this because of that.

22              MR. GOLD:    Could you mark the

23        objection Mr. Garbus made so that we can --

24        go back to the objection Mr. Garbus made and

25        do whatever you do so that one can find it
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 2           later right away.   A list can be made of

 3           everything.

 4                Read my last question back to the

 5           witness, please.

 6                (A portion of the record was read.)

 7           Q.   I ask you again, do you have an answer

 8   for that?

 9           A.   Assuming that my last answer wasn't

10   satisfactory, I will say yes, people have a right

11   to send letters if they believe the law is being

12   violated, but that's not how this was portrayed,

13   how it came across at all.

14          Q.    How many of such letters have you read?

15          A.    I believe it was the same letter sent to

16   many people.

17          Q.    How many of such letters have you read,

18   sir?

19          A.    I saw about maybe four or five of them.

20          Q.    Were they all identical?

21          A.    I believe they were.   Again, this is

22   several months ago, last year, so I can't say for

23   sure.    But I believe they were.

24          Q.    Have you ever heard of a Chris Moseng,

25   M-o-s-e-n-g?
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 2        A.      No.

 3        Q.      Have you ever heard of anyone name

 4   Olegario -- let me spell it, because I don't think

 5   I'm pronouncing it right -- O-l-e-g-a-r-i-o.

 6   That's his is first name.     His last name is Craig.

 7   Have you ever heard of such a person?

 8        A.      No.

 9        Q.      Have you ever heard of Frank Stevenson?

10        A.      I have heard that name, yes.

11        Q.      From whom?

12        A.      I just -- that's a name in the Linux

13   community.   I am not specifically sure who he is,

14   but I know I have seen the name someplace.

15        Q.      Do you think it's possible, do you

16   understand it's possible to transfer on the

17   Internet a 64 -- transfer a full movie such as "The

18   Matrix," on the Internet in 64 minutes?

19        A.      If such a thing were possible it would

20   be very bad quality.      I mean, not -- certainly not

21   anything that would be viable.

22        Q.      Do you know if it's possible?

23        A.      I don't know if it's possible.   I don't

24   know specifics as far as that goes.

25        Q.      Do you think it's possible to transmit a
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 2   50-gigabyte file in 48 minutes over the Internet?

 3              MR. GARBUS:   I object to the question.

 4         Q.   I am just asking if you know.

 5              MR. GARBUS:   You asked him if he

 6         thought it was possible.

 7         A.   I don't believe with any bandwidth

 8   that I have ever come in contact with, no.

 9         Q.   Do you know how large a typical movie is

10   in digital form after it has been compressed using

11   DIVX, D-I-V-X?

12         A.   No, I am not familiar with that.

13         Q.   Is it true that once a DVD movie has

14   been copied and decrypted using DeCSS it can be

15   played back from the hard disk file using a whole

16   variety of commercial software?

17         A.   No.   Well, it's kind of a trick question

18   because you don't need DeCSS to copy it in the

19   first place.   So if you just copied the DVD

20   encrypted without using DeCSS, you could play it

21   back already on any DVD player.

22         Q.   But the answer to my question was yes or

23   no?

24              MR. GARBUS:   No, he gave you --

25         Q.   Or you don't know?
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 2                 MR. GARBUS:      He gave you a different

 3           answer.    He didn't say yes.     He didn't say

 4           he didn't know.

 5                    MR. GOLD:   Read my question back.

 6                 MR. GARBUS:      Go ahead, just repeat

 7           your answer.

 8                 MR. GOLD:      What are you directing him

 9           to do?    Just repeat his answer?

10                Could you mark that note on the last

11        statement of Mr. Garbus.

12        A.      I am just trying to be clear here.          I

13   don't think that point about DeCSS is relevant to

14   the question.       It's like asking if it's possible on

15   a sunny day to do it.         It's not relevant.   You can

16   do it without DeCSS.

17                MR. GOLD:       Thank you.   Could you go

18        back and read my last question to the

19        witness.       I will ask him to answer it.

20                (A portion of the record was read.)

21                MR. GARBUS:      I object to the question.

22        It's already been asked and answered.

23        A.      I am trying to answer this in a way you

24   like.

25        Q.      I don't want you to do that.        I want you
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 2   to answer it in a way you think it's true.

 3          A.    If you copy an encrypted DVD onto a hard

 4   disk and you somehow have the space on the hard

 5   disk for that, and you have CSS already to play it

 6   back through, yes, you will be able to view it that

 7   way.

 8          Q.    Going back to the question about your

 9   posting DeCSS, how soon after you first saw it did

10   you post it?

11          A.    How soon after we first saw the initial

12   posting?    It would be whatever period of time went

13   by before people started being threatened plus a

14   couple of days.    Because we discussed the

15   importance of it.

16          Q.    Prior to the time you first posted it

17   what efforts did you make to find out whether

18   movies could be transmitted over the Internet?

19   Just list them all.

20          A.    I didn't make any effort to find that

21   out.   I didn't see that as anything relevant.

22          Q.    Prior to the time you first posted DeCSS

23   did you make any efforts to find out if there were

24   web sites in the United States which allowed people

25   to exchange movie files?
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 2        A.       No, that's not my interest.

 3        Q.       You made no such efforts; is that right?

 4        A.       No such efforts, no.

 5        Q.       Prior to the time you first posted DeCSS

 6   did you make any effort whatsoever to contact

 7   anyone that produced movies in the United States?

 8        A.       No.

 9        Q.       Have you ever used Napster?

10        A.    I have played with Napster once or

11   twice, yes.

12        Q.    Was that before you posted DeCSS?

13        A.    Oh, no, that was way after.      I don't

14   think Napster existed back then.     That was a fairly

15   new development.

16        Q.    Napster is a new development that

17   existed after November '99?

18        A.    I believe so.

19        Q.    So that would be about what?      Six months

20   ago that it first existed it?

21        A.    I don't know when Napster first existed.

22        Q.    Do you know how many users use Napster

23   on a daily basis?

24        A.    No.

25        Q.    No idea?
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 2        A.    No, not really.

 3        Q.    Do you know how many records are taken

 4   down from Napster or traded, do you know how many

 5   records on a daily basis are traded between Napster

 6   users?

 7        A.    Entire records or just individual songs?

 8        Q.    Songs.

 9        A.    I can't say I know.

10        Q.    Is it in the multimillions?

11        A.    I have no idea.

12        Q.    At all?

13        A.    I really have no idea on that.

14        Q.    I am not sure I asked this.    I might

15   have, so I apologize.   Have you ever used DeCSS to

16   decrypt a DVD movie?

17        A.    No.

18        Q.    Is it true that DeCSS exists and is

19   designed for the sole function of decrypting CSS

20   encoded content?

21        A.    DeCSS exists to decrypt CSS, yes.

22        Q.    And that's its only purpose?

23        A.    As far as --

24        Q.    As far as you know.

25        A.    The purpose in the greater context of
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 2   providing an open source player for a Linux

 3   machine, yes.

 4        Q.    What do you know about how DeCSS works?

 5        A.    I am not an expert on that kind of

 6   thing.

 7        Q.    So you don't know anything about it.

 8        A.    I really don't know the technicalities

 9   at all, no.

10        Q.    Is it true to your knowledge that by

11   downloading and running the object code form or

12   executable form of DeCSS utility, a user can

13   copyright a decrypted movie?   Let me ask it again.

14              Is it true to your knowledge that by

15   downloading and running the object form, by which I

16   mean the executable form, of the DeCSS utility, a

17   user can create a decrypted movie?

18        A.    I am not entirely sure.   That's a little

19   too technical for me.

20        Q.    You're saying you don't know.

21        A.    I don't know.

22        Q.    Is it true that after creating a

23   decrypted movie file DeCSS allows that file to be

24   copied to the user's computer hard disk?

25              MR. GARBUS:   I object to the form of
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 2        the question.     He said he didn't know

 3        whether or not the first part of your

 4        question, which was the last question, was

 5        true or not.

 6        Q.       Do you know the answer to that question?

 7        A.       Again, I have never used DeCSS, so I

 8   don't know these kinds of things.

 9        Q.       Can you describe for me the role, if

10   any, of DeCSS in reverse engineering?

11        A.    Basically CSS uses the particular type

12   of encryption.     DeCSS gets around that kind of

13   encryption, defeats it, basically allows you to see

14   how that encryption works or in this case doesn't

15   work to encrypt -- to encrypt the data.     And in so

16   doing, a lot can be learned.

17        Q.       Is that everything you know about the

18   role of DeCSS in reverse engineering?

19        A.    Yes.     It's a general thing, but that's

20   basically the extent of my knowledge, is very

21   general.

22        Q.    Describe the role, if any, of DeCSS in

23   connection with efforts to create an open source

24   DVD player.

25        A.    My understanding is that the many Linux
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 2   users of the world had long wanted a DVD player for

 3   their operating system.    For various reasons of

 4   which I don't really know the details they were

 5   unable to obtain a license for this.

 6               By reverse engineering CSS, those

 7   restrictions were able to be bypassed and people

 8   who had legitimately obtained DVDs were able to

 9   play them on their legitimately obtained computers,

10   which I had never seen to be a problem.

11          Q.   Who, if anyone, is working on creating

12   the open source DVD player you just referred to?

13          A.   A lot of people are.   I mentioned the

14   Livid project yesterday.    I know that's one group

15   of people that are doing it.     I know lots of people

16   in the Linux community are working on such things.

17          Q.   Do you know any names of people in the

18   Livid group who are --

19          A.   I remembered one since yesterday,

20   Matthew Pablovich.    That's the only name I know.

21          Q.     Did anyone in the Livid group ever try

22   to obtain a lease from DVD CCA?

23          A.   No, I don't know that.

24          Q.   Did you make any effort to find that

25   out?
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 2        A.       I didn't ask them specifically if they

 3   did that, no.

 4        Q.       Do you know whether or not it would have

 5   been possible for them to obtain a lease?

 6        A.       No, I don't even know if it's even

 7   possible.     I assume you mean license, not lease.

 8        Q.       I meant licensed.   Thank you.

 9        A.       Sure.

10        Q.     Describe the role that DeCSS is

11   currently playing, if any, in cryptographic

12   research?

13        A.     As I said, DeCSS allows one to study

14   encryption that was used in CSS.     That's my very

15   general understanding of how it can be used to

16   study this.

17        Q.     What is the relationship, if any,

18   between DeCSS and legal consumer fair use?

19               MR. GARBUS:    I object to the question.

20        The witness is not a lawyer.

21               MR. GOLD:    Do you have the October 30,

22        I'm sorry, the May 30th -- May 3rd

23        declaration in front of you still?

24        Q.     Turn to paragraph 14 at page 5.

25               Do you understand that in paragraph 14
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 2   you refer to the role of DeCSS to aid legal

 3   consumer fair use?

 4          A.   Uh-huh.

 5          Q.   Do you see that you said that?

 6          A.   Yes, I said that.

 7          Q.   What did you mean by legal consumer fair

 8   use?

 9          A.   Again, I am not a lawyer, but I believe

10   I explained --

11          Q.   Were you a lawyer when you wrote this?

12          A.   No.

13          Q.   Were you a lawyer when you signed it?

14          A.   I have never been a lawyer.   I believe I

15   explained this yesterday though.

16          Q.   I am turning to paragraph 14 and I am

17   asking you what you meant when you swore to the

18   fact that the DeCSS program can be used as an aid

19   of legal consumer fair use.

20          A.   By allowing someone to view something

21   which ordinarily they would be prohibited from

22   viewing and transferring onto another medium, such

23   as a videotape, this enables consumers to make use

24   of fair use with regards to DVD.

25               For instance, if you were making a
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 2   report for your class and you wanted to include a

 3   ten-second segment or a one-minute segment of

 4   something that was only on DVD, you would not be

 5   able to do that.     On a videotape, yes, you would be

 6   able to do that.     From a book, yes, you would be

 7   able to do that.     DVDs are the first medium that

 8   prohibit fair use.     In my view.

 9           Q.   Do you know whether or not viewing an

10   entire movie constitutes fair use or has anything

11   to do with fair use?

12                MR. GARBUS:   I object to the form of

13        the question.    He is not a lawyer.

14           A.   It's not my understanding as a nonlawyer

15   that that is covered.

16        Q.      And as a nonlawyer when you talked about

17   legal consumer fair use, what specific forms of

18   fair use did you have in mind?

19        A.      As I described, basically being able to

20   take a portion of something and use it in another

21   work.    As has been done for however long fair use

22   has been around.

23        Q.      Other than posting DeCSS did you do

24   anything else to support its existence?

25                MR. GARBUS:   I object to the use of
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 2        the term "support its existence."

 3              MR. GOLD:      Why?

 4              MR. GARBUS:      I don't know what it

 5        means.

 6              MR. GOLD:      You don't know what it

 7        means?

 8              MR. GARBUS:      I don't know what it

 9        means.    I don't know what it means.

10                 MR. GOLD:   Did you read his affidavit

11        or did you write his affidavit?

12              MR. GARBUS:     I don't know what the

13        terms in those terms mean.     If you want to

14        refer to something in the affidavit, I will

15        be glad to look at it.

16              MR. GOLD:      I would have thought you

17        looked at it before.

18              MR. GARBUS:     Perhaps not.   I didn't

19        prepare it.

20              MR. GOLD:      I don't know that.

21        Q.    Turning to paragraph 14 at page 5 of

22   your -- I think declaration, the second line begins

23   the sentence as follows.     "However, when it was

24   posted to the Internet, I recognized the importance

25   of such a program to a variety of disciplines,
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 2   including reverse engineering an open-source DVD

 3   player, cryptography and in aid of legal consumer

 4   fair use."   What did you mean by -- strike that.

 5                The next sentence says, "I was quick to

 6   show support for its existence."    What did you mean

 7   by support when you swore to this?

 8           A.   I consider support to be writing about

 9   it, writing articles about it, educating people and

10   of course our eventual mirroring of the source code

11   in the program.

12        Q.      Did you understand when you were doing

13   that you were helping to proliferate the DeCSS

14   code?

15                MR. GARBUS:   I object to the form of

16        the question.

17        A.      As I said, I saw that as support for the

18   existence of DeCSS, which I believe was covered for

19   the reasons stated.

20        Q.      Was it your intent in doing the things

21   you testified to to have as many people in the

22   United States have DeCSS as was possible?

23                MR. GARBUS:   I object to the form of

24        the question.    He already stated he was a

25        journalist writing a story.
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 2        Q.    You can answer, sir.

 3        A.    Initially our only intent was to draw

 4   attention to the fact that these people were being

 5   intimidated, that this technological development

 6   had occurred, and that was the extent of it.    We

 7   were not going around on a crusade trying to get

 8   DeCSS into everyone's home.     We were basically

 9   writing an interesting story and showing people

10   something that was an interesting technological

11   development.   Unfortunately, that turned us into

12   the threat=.

13        Q.    After initially what was your purpose in

14   posting DeCSS?

15              MR. GARBUS:   I will object to it.   He

16        hasn't testified it changed.

17   MO         MR. GOLD:   Do you want to mark that so

18        that we can get that added to the list of

19        Mr. Garbus's objections that we are focusing

20        on.

21        A.    Obviously once we became the target of

22   these legal threats, our position changed in that

23   we had to defend ourselves.     We had to explain our

24   position, how all of a sudden we were perceived as

25   a threat and we had nothing to do with the
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 1                        Goldstein

 2   development of the program in the first place.

 3                 So obviously our position in the whole

 4   mix kind of was shifted.     Instead of reporting on

 5   something, we became the story, which is never

 6   something that we were pursuing ourselves.       I am

 7   still kind of, you know, questioning why that

 8   happened.

 9                 MR. GARBUS:   Can we take our morning

10        break?

11               MR. GOLD:    Sure.    About ten minutes.

12               THE VIDEOGRAPHER:      The time is

13        11:18 a.m.    We're going off the record.

14               (A recess was taken.)

15                 THE VIDEOGRAPHER:    The time is

16        11:29 a.m.    We're back on the record.

17   By MR. GOLD:

18        Q.     Mr. Goldstein, what, if anything, would

19   have been different in the stories or editorials

20   you published on your web site if you removed from

21   them the letters "DeCSS"?

22        A.     I am not sure I follow the question.

23        Q.     Well, what would have been different

24   about what you were saying, what would have been

25   interpreted in a different way, if you eliminated
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 2   the letters "DeCSS"?

 3        A.    Do you mean the letters, the program,

 4   the source code, any reference to DeCSS?

 5        Q.    No, not any reference.   If you just took

 6   those five letters out of your stories, what would

 7   have been different?

 8        A.    I don't understand the question.

 9        Q.    If instead of saying "DeCSS" you

10   referred to a program which decrypted CSS and never

11   used those five letters --

12        A.    You mean not refer specifically to --

13        Q.    -- quote, DeCSS.

14        A.    Uh-huh.

15        Q.    Close quote.

16        A.    We would have had a very general story

17   about something without any specific information,

18   which is what our readers look for, specific

19   information, you know, what is it that we're

20   talking about?   Show us what you mean.   And we were

21   compelled to provide our readers with that.

22        Q.    Are you saying what would have been

23   different -- if I understand, tell me if I am

24   wrong, you're saying what would have been different

25   is that nobody could have picked the DeCSS code up
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 1                        Goldstein

 2   from your web site.

 3              MR. GARBUS:    Objection.   That's not

 4        what he said.

 5        Q.    Is that what you're saying or not?

 6        A.    If you're saying that if we had taken

 7   the program off of our web site, obviously no,

 8   people wouldn't have been able to get the program

 9   from our web site.    The story that we wrote had to

10   do with the fact that the program was already out

11   there and that people were being harassed because

12   they had it up on their site.    And that's what the

13   story was about.

14        Q.    Why couldn't you have said all that and

15   just not used the five letters "DeCSS" together?

16        A.    Because that was the major part of the

17   story, that was what the program was called.    So to

18   eliminate a major part of the story like that would

19   either be censorship or intimidation, and we don't

20   believe in either one.

21        Q.    I didn't say that I was going to do it

22   or the government was going to do it.     I asked you

23   what would have changed about your story --

24        A.    Well, it's self-censorship.

25        Q.    -- if you decided to eliminate.
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 1                       Goldstein

 2        A.     Right, it is self-censorship.    You do it

 3   for a reason.   You do it because you believe you'll

 4   be targeted if you don't and then you do something

 5   that isn't right for the wrong reasons.     As

 6   journalists this is very important to us.

 7        Q.     Is it true or is it not true that the

 8   main reason you put "DeCSS" in the stories and

 9   editorials you wrote on your web site was that so

10   people could go to the web site and download DeCSS,

11   the entire program?

12               MR. GARBUS:   Objection.

13        A.     No, that's not the reason.    If people

14   wanted to download DeCSS, there were hundreds of

15   sites they could do it from.    They could go to any

16   search engine and find it that way.

17        Q.     Why did you have to make it possible for

18   them to go to yours and pick it up?

19        A.     Because we're a newsletter and this was

20   a bit of news that affected people who read our

21   magazine.   It was of interest to people who read

22   our magazine.   And we felt compelled to cover it,

23   and covering it includes giving as many details as

24   we can.

25        Q.     But my question is, isn't it true if you
                                                              219
 1                         Goldstein

 2   took out "DeCSS" the only thing that would have

 3   changed is people's ability to download DeCSS from

 4   your web site?

 5                MR. GARBUS:   Objection.   That's not

 6        what he said.

 7                MR. GOLD:   I asked him if that was

 8        true.

 9        A.      No.    It's part of the story.   DeCSS is

10   part of the story.     We provide our readers with

11   firsthand information, and that was information

12   that we provided them.

13        Q.      When you wrote the story about DeCSS in

14   your hard copy magazine, nobody could go to that

15   magazine and pull down the code, could they?

16        A.      Well, you can't really put a program in

17   a magazine like that, no.

18        Q.      Do you remember writing on your web site

19   that DeCSS is a free DVD decoder that allows people

20   to copy DVDs?

21        A.      No, as I said yesterday, that was not my

22   writing.

23        Q.      Someone else wrote it?

24        A.      Yes.

25        Q.      And you identified who?
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 1                       Goldstein

 2           A.   Our webmaster.

 3           Q.   And you didn't see it before it was put

 4   there?

 5           A.   No, I saw it before, and I take

 6   responsibility for it being there.

 7           Q.   Is it true?

 8           A.   No, that's inaccurate, because as I have

 9   testified, that does not enable people to copy

10   DVDs.    You can already copy DVDs.

11        Q.      Why would you allow an inaccurate

12   statement to be published on your site?

13        A.      Because in emerging technology, even we

14   don't always get the facts right, and this is one

15   particular case where we didn't understand the full

16   implications of the program at the time.

17        Q.      Do you mean at the time that you

18   published this on your web site, I take it you're

19   telling me you did believe that DeCSS was a free

20   DVD decoder --

21                MR. GARBUS:   I will object.

22           Q.   -- that allows people to copy DVDs; is

23   that true?

24                MR. GARBUS:   I will object to it.

25        That's not what he testified.
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 1                        Goldstein

 2              MR. GOLD:    Didn't say it was.    I asked

 3        him a question.

 4        A.    At the time my understanding was that

 5   the program allowed people to view things in that

 6   particular way and that with the proper type of

 7   hardware and software you would be able to copy

 8   certain files.     But I didn't have a full

 9   understanding of what the implications were.

10              At that particular point in time, the

11   main story as far as we were concerned was the fact

12   that this was technology that people were being

13   intimidated into taking off their web sites.     We

14   didn't have a chance to fully explore what was

15   being done with the technology.    Once we did, then

16   it became clear.

17        Q.    What is simply unclear to me from your

18   statement, and I apologize for asking again, but I

19   can't understand what you're saying, so I will try

20   again.

21        A.    OK.

22        Q.    At the time this was published, that

23   DeCSS is a free DVD decoder that allows people to

24   copy DVDs, at the time that was published on your

25   web site, you believed that that was a true
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 2   statement, didn't you?

 3              MR. GARBUS:     I object to it.   The

 4        witness has already testified that

 5        someone --

 6              MR. GOLD:   I'm going to ask you not to

 7        coach anymore.

 8              MR. GARBUS:     I'm not.   I am just

 9        stating the witness has already testified --

10              MR. GOLD:   OK, that's enough for your

11        objection.

12        A.    I mean, I answered this question, but

13   that my understanding of how the technology worked,

14   that that's what it was about.    I did not see that

15   as the issue at that point in time.

16        Q.    At the time you understood the

17   technology to be that, i.e. a free DVD decoder that

18   allows people to copy DVDs, did you remove DeCSS

19   from your web site?

20        A.    I don't think we had even started

21   posting it at that point.    That was before.

22        Q.    Are you sure?

23        A.    I can't say for certain.      I don't

24   remember specific dates involved.      But at that

25   point we were reporting on people being intimidated
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 1                         Goldstein

 2   and taking it off their sites.     And we didn't quite

 3   understand what the program did ourselves.    We just

 4   knew that telling people to take down source code

 5   on a web site was unprecedented.

 6          Q.   Did you ever publish on your web site

 7   the idea that you wanted as many people as possible

 8   all throughout the world to mirror the DeCSS files?

 9          A.   After we were targeted we did express

10   the -- for people who wanted to show support, we

11   expressed that as a valid way of showing support,

12   yes.

13          Q.   Did you exhort others to mirror DeCSS in

14   order to further cryptographic research?

15               MR. GARBUS:    I object to the question,

16          exhort.   I don't know what you mean by that.

17          A.   We told people who wanted to support us

18   that that was a valid form of expression.

19          Q.   Did you do it, did you ask people to do

20   that to further cryptographic research?

21          A.   We told people if they wanted to support

22   us that this was a valid way of doing it.     Whatever

23   their reasons, whether it was for freedom of

24   speech, whether it was for reverse engineering,

25   cryptographic research, that was up to them.    We
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 1                        Goldstein

 2   didn't crawl into their heads and figure out their

 3   motives.   We said if you wanted to support us, we

 4   considered this a valid way of doing it.

 5        Q.     Did you exhort others to mirror the

 6   DeCSS file for purposes of reverse engineering?

 7               MR. GARBUS:   I object to the form of

 8        the question.

 9        A.     My previous answer I think answers

10   that word for word.

11        Q.     Did you exhort others to mirror DeCSS

12   files in order to further fair use?

13               MR. GARBUS:   I object to the form of

14        the question.

15        A.     Again --

16               MR. GARBUS:   He's already asked and

17        answered.

18        A.     -- I've already answered that.

19        Q.     That's all right.    You can answer it

20   again.

21        A.     As I just said, we told people if they

22   wanted to support us, that whatever their

23   reasoning, whatever they felt, you know, the

24   purpose for mirroring the sites, the files, we

25   consider that a valid form of expression.
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 1                      Goldstein

 2        Q.    So you didn't have the slightest idea of

 3   what all these people would do if they downloaded

 4   DeCSS or if they got DeCSS from your web site.

 5        A.    Are you talking about the people who

 6   mirrored or the people who downloaded from the

 7   mirrors?

 8        Q.    People who mirrored.

 9        A.    Well, we knew what the people who

10   mirrored were doing, they were mirroring.    They

11   were simply putting the files up and explaining on

12   their web sites what the issues were about and

13   basically educating people about it.

14        Q.    Did you have any idea what all of those

15   people would do with DeCSS that they now possessed?

16   MO         MR. GARBUS:    I will object to what they

17        now possessed.    He already testified that it

18        had been up a long while before and that

19        other people had possessed it.

20              MR. GOLD:    Would you mark that again,

21        please, that particular objection.

22        A.    First of all, there is no indication

23   that they received the program from us, because the

24   program was all over the place.   Mostly they were

25   posting opinions and facts about the case and
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 1                        Goldstein

 2   educating more and more people about it.      Posting

 3   the actual code was more of a symbolic type of a

 4   thing.    But actually talking about the issues was

 5   what we were encouraging.    That's what I think a

 6   lot of people did.

 7                As I mentioned yesterday --

 8        Q.      How do you know who did that?

 9        A.      I'm sorry?

10        Q.      How do you know who did that?

11                MR. GARBUS:   Will you let him finish

12        his answer.

13        A.      Should I finish my answer before?

14        Q.      You hadn't?

15        A.      I had one sentence.    As I mentioned

16   yesterday, most people that I -- in fact, I don't

17   know anybody who has actually used the program.         So

18   I can't testify as to what people did with the

19   program.   I am not aware of anyone ever using the

20   program.

21                This became a story that was of great

22   interest to people in the community.      And that's

23   what we were trying to, um to      have people become

24   educated on this, basically talking about the

25   issues and why they were important to them and we
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 1                        Goldstein

 2   encouraged people to think about them.

 3        Q.    When you did post DeCSS and at present

 4   when you're linking to other sites that post DeCSS,

 5   is it true that any member of the general public

 6   with Internet access can take it and download

 7   DeCSS?

 8        A.    Yes, it is.

 9        Q.    Who removed the posting of DeCSS after

10   the January 20 injunction?

11        A.    Who physically moved the files?     I

12   believe it was both myself and my webmaster.       I

13   think my webmaster is the one who actually hit the

14   keys, if that's what you're after.

15        Q.    You're currently linking to other sites

16   that post DeCSS?

17        A.    We have a list of links to other sites

18   that still have the files up, yes.

19        Q.    In order to transmit DeCSS to as many

20   people throughout the world as possible, does it

21   make any difference whether you post DeCSS or link

22   it to others who post DeCSS?

23              MR. GARBUS:    I object to the form of

24        the question.    How does he know that?

25              MR. GOLD:    We'll find out.
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 1                       Goldstein

 2           A.   It's not something that I really know

 3   the efficiency of how, how to best get a file out.

 4   I would imagine we're not doing it in the most

 5   efficient way possible, which I think is further

 6   testament to the fact that we're not in the

 7   business of distributing this file.    We're

 8   basically trying to get information out about it

 9   and to spread education.

10        Q.      If somebody takes or downloads DeCSS

11   from someone who is posting it, how do they do

12   that?    Describe it to me.

13        A.      There are a number of different ways.

14   On the web they could click on a link, on that

15   other person's site, which would start a download

16   to their hard drive.

17                You could also use a method known as

18   FTP, where you basically open a connection and then

19   specify the file you want to download.   It

20   basically involves downloading however many files

21   are there.

22        Q.      One of the ways that anyone can download

23   DeCSS from someone who is posting it is just to put

24   his mouse on the DeCSS and click once?

25        A.      Usually you have to click twice to
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 1                       Goldstein

 2   indicate where in the hard disk you want to put it,

 3   but that's close to what you have to do, yes.

 4           Q.   He clicks twice.

 5           A.   You have to go to the site.   You have to

 6   select the file.    You have to tell your computer

 7   where to put the file.    I think you might have to

 8   verify after that as well.

 9           Q.   If a person wants to download DeCSS and

10   he goes first to someone who's linking to a site

11   that posts DeCSS, what does he have to do?

12        A.      Do you mean a site such as ours?

13        Q.      Yes.

14        A.      There's an additional step in that he

15   would have to go to the page that has a list of

16   other sites that have that information.     He would

17   have to physically himself go to that site and

18   then --

19        Q.      By clicking on?

20        A.      By clicking on the link, then his

21   computer executes a command to go to a different

22   site.    And at that point it's out of our site and

23   he does whatever that site -- he follows whatever

24   instructions are on that site or he looks at

25   whatever information is on that site.
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 1                       Goldstein

 2        Q.    But if that site simply has DeCSS up on

 3   its first page, or the link will go to the first

 4   page and all that person would have to do is click

 5   on the DeCSS, right?

 6        A.    However their site is laid out.     He

 7   would have to click however many times they specify

 8   on that particular site if the file was even there.

 9   If it's on a different page, he might have to click

10   a few more files.   Basically what the list of links

11   is is a list of sites where he can find information

12   or the actual program.

13        Q.    So it's pretty simple, is it, to

14   download DeCSS if one starts with your site which

15   links to other sites that post them?

16              MR. GARBUS:    Object to the form of the

17        question.

18        A.    I consider it to be pretty simple no

19   matter what site you go to.     You can go to Yahoo or

20   Alta Vista and find it just as easily.     So to me

21   it's an easy thing.    I don't know.   I can't put

22   myself in the heads of other people.

23        Q.    Is Yahoo now linking to sites that post

24   DeCSS?

25        A.    Well, yes, if you type DeCSS into a
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 2   search engine, you will get links to all the sites

 3   that have then, so yes.

 4         Q.      When you posted DeCSS was it in object

 5   code form?

 6         A.      I can't really say.    That's a technical

 7   thing.     Because I have never actually examined the

 8   files myself.     I never had occasion to --

 9         Q.      So you have no idea?

10         A.      I am not sure what format they are in,

11   no.

12         Q.      With respect to the sites you're now

13   linking to, are those sites all carrying DeCSS in

14   object form?

15         A.      I can't say what's on each of those

16   sites.

17         Q.      What about what's on any of them?

18         A.      I know it's in source code form, object

19   code form, Different formats.       But there's no way I

20   can swear to what every single site has.       There are

21   different sites.     Some of them have changed.

22                 MR. GARBUS:    Mr. Gold, if you leave a

23         space certainly he can find out what it is

24         on his site and he can tell you that.

25                 THE WITNESS:   No, I can't.   It's not
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 2           on my site anymore.

 3                 MR. GARBUS:    Well, when it was on your

 4           site could you find it?

 5                 THE WITNESS:    I don't know how.   It's

 6           not there.

 7                 MR. GARBUS:    My attempt to be helpful

 8           was a failure.

 9           Q.    What is object code?

10        A.      I imagine it's --

11        Q.      Do you know?

12        A.      It's -- I am not really --

13        Q.      If you don't know, tell me you don't

14   know.

15           A.    I feel like an idiot, but I don't really

16   know specifically how to define it.

17                MR. GARBUS:     Don't be an idiot and

18        don't speculate.

19        A.      The source code.

20        Q.      Is it true that you don't know what

21   source code is?

22        A.      I know what source code is.    It's

23   basically the printed -- the printed words involved

24   in a computer program that later get compiled into

25   an actual program.
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 2                So basically the source code is the meat

 3   of the whole thing.   That's where you can analyze

 4   what the program does, how it does it, think of

 5   better ways for it to work more efficiently, and

 6   learn from it that way.

 7        Q.      How if you know does object code differ

 8   from that?

 9        A.      I am not familiar with object code.    I

10   am not a computer programmer.

11        Q.      Would object code of DeCSS be helpful to

12   a cryptographer?

13        A.      I imagine any form would be helpful to

14   someone who knew what they were talking about.

15        Q.      Is it true that any member of the

16   general public with Internet access could prior to

17   January 20 access 2600.com and directly download

18   DeCSS?

19        A.      If it was after when we put it up and

20   before when we took it down, yes.

21        Q.      Before the injunction.

22        A.      Yes, anyone who could access our site

23   would be able to download it.

24        Q.      How will knowledge gained from DeCSS

25   allow future programs to develop better DVD
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 2   players, if you know?

 3        A.      Well, as -- my opinion on the matter is

 4   that it would for one thing enable you to develop

 5   better encryption so that this kind of thing

 6   doesn't happen again or so that it takes longer for

 7   it to happen again.

 8        Q.      How will the knowledge gained from DeCSS

 9   allow future programmers to fast forward through

10   commercials or to the part of the movie they want

11   to see?

12        A.      I'm sorry, give me the first part of the

13   question.

14        Q.      Yes.

15                MR. GOLD:    Could you read the question

16        back.

17                (A portion of the record was read.)

18        A.      By understanding the access controls

19   that are contained within CSS, by understanding

20   that and figuring out ways to bypass them or change

21   them, one can get around those playback controls,

22   playback controls being the things that control how

23   you view the film.       Not whether you can view the

24   film, but how you view it.

25                MR. GARBUS:    May I hear the answer,
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 1                        Goldstein

 2           Mr. Gold?

 3                 MR. GOLD:    Of course.

 4                (A portion of the record was read.)

 5           Q.   Do you know what a temporary RAM copy of

 6   a movie is?

 7           A.   Not specifically, no.

 8           Q.   Do you know how it differs, if at all,

 9   from a copy that is made to a permanent computer

10   file?

11        A.      I can only speculate.

12        Q.      I prefer you give us only your

13   knowledge.

14                MR. GARBUS:    Don't speculate.

15        Q.      Did you ever advise visitors to the 2600

16   web site that they shouldn't take DeCSS if they

17   just want to copy a DVD?

18        A.      Yes, I believe that was around the same

19   time where we thought that there was some

20   relationship between DeCSS and copying.        So that

21   statement could very well have appeared on our

22   site.

23        Q.      Did you change the statement when you

24   thought you learned something different from

25   copying movies?
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 1                       Goldstein

 2          A.   No, it's our view that a news story, if

 3   it makes a mistake, the mistake lives with the

 4   story and we just move on from there.    We don't try

 5   and rewrite the past.

 6          Q.   Are you serious?

 7          A.   We wrote it back then.   For us to go

 8   back and rewrite it with the date from the past I

 9   think would be dishonest.

10          Q.   Why did you advise visitors to your site

11   not to download DeCSS if they just wanted to copy a

12   DVD?   Why did you give them that advice?

13          A.   Well, with the knowledge we had at the

14   time --

15          Q.   Yes.

16          A.   -- we wanted to make sure that people

17   were following this for the right reasons.

18   Basically that this was a discussion about

19   technology, about how a particular form of

20   encryption worked, about reverse engineering.      And

21   that was the real issue.    It wasn't about, you

22   know, what you could get for free or, you know, how

23   much you could get away with.   That's not what

24   we're about.   We're about education.   We wanted to

25   make sure that that's why people took an interest
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 2   in this.

 3              Obviously we can't control what people

 4   do.   But we wanted to make it clear where we were

 5   coming from on this.

 6         Q.   Can you control what you do?

 7         A.   Oh, certainly.

 8         Q.   Well, then why did you stop saying don't

 9   take down, don't download DeCSS if all you want to

10   do is copy a DVD?   Why would you have changed that?

11         A.   Well, we changed it when we realized it

12   had nothing to do with copying DVDs.   So it became

13   kind of pointless for us to continue saying that.

14         Q.   Did you believe it would have been

15   illegal to make a copy when you wrote, when you

16   were advising people not to take DeCSS if all they

17   wanted to do was copy the movie?

18         A.   Again, I am not a lawyer.   I don't know

19   the specific laws, but certainly I would consider

20   it to be illegal and immoral at the very least to

21   copy anything that's not yours.

22         Q.   Was one reason that you advised viewers

23   not to take DeCSS if they wanted to make a copy of

24   it, the movie, the fact that you believed it would

25   have been illegal, so you wanted to tell them that?
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 1                       Goldstein

 2                MR. GARBUS:   Objection.

 3        Q.      That either was a reason that you had or


 4   it wasn't.

 5        A.      That was a concern.

 6        Q.      It was a concern.

 7        A.      Definitely would have been a concern if

 8   we thought it was illegal, yes.

 9        Q.      Who told you that you couldn't copy a

10   movie if you downloaded DeCSS?

11        A.      After the story became a little bit more

12   well established, numerous people --

13        Q.      You can't name any of them?

14        A.      I didn't write down people's names.

15                MR. GARBUS:   I don't think he finished

16        his answer.

17        A.      Basically these are the people that we

18   saw at conferences, at 2600 meetings, people who

19   had called up the radio show or sent us random bits

20   of E-mail.   It just became general knowledge that

21   that's what this program did and it didn't do this.

22                And once we understood more, how the

23   technology worked ourselves, we were able to get it

24   right.

25        Q.      Did you ever consult any expert or
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 2   someone you recognized as an expert to find out if

 3   you could copy a movie once you downloaded DeCSS?

 4          A.   I talked with people starting with I

 5   believe the early part of this year.    I think at

 6   the Linux Expo earlier this year I talked to a

 7   number of people at a panel discussion.

 8               In fact, I remember at the panel

 9   discussion I even asked one of the lawyers there

10   who had helped write the Digital Millennium

11   Copyright Act if there were any cases of DeCSS

12   being used to copy files.   He wasn't able to name

13   any.

14          Q.   I assume you can't remember the name of

15   either one of those people.

16          A.   I am not good with names.

17   Unfortunately.

18          Q.   What about Internet names like Zerb or

19   Blip or Blup or Fluff or things like that?

20          A.   No.

21          Q.   You can't even remember one by its

22   Internet name.

23          A.   See, this is just a general widely

24   accepted view that this cannot be done.    I don't

25   remember specifically who first told me.   It's just
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 1                       Goldstein

 2   something that everybody knows.

 3        Q.    Is it the view of the experts in this

 4   case who have submitted affidavits on your behalf?

 5        A.    Yes.

 6        Q.    How do you know that?

 7        A.    Well, I mean, I --

 8        Q.    Why do you say it is?

 9        A.    Even without looking at it --

10        Q.    You didn't read the affidavit and you

11   didn't talk to them about it.

12        A.    I didn't talk to them personally.

13        Q.    And you didn't read the affidavit.

14              MR. GARBUS:    I think he said that he

15        read some of it --

16        A.    Yeah, I glanced at affidavits.    I am

17   not sure exactly what parts I missed.    But the

18   overwhelming prevailing view is that it's simply

19   not possible.   This is not a copying mechanism.

20              MR. GOLD:   Let's mark this as

21        Exhibit 6.

22              (Plaintiffs' Exhibit 6, series of

23        documents on web sites and web listings,

24        marked for identification, as of this date.)

25        Q.    Mr. Goldstein, what is the first page of
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 1                        Goldstein

 2   Exhibit 6?    I only asked you about the first page.

 3        A.      I am not sure what you asked me.

 4        Q.      What is it?

 5        A.      This looks like another web site that

 6   mirrored the file or had a list of sites

 7   themselves.

 8        Q.       Do you know if they were replying to

 9   your exhortation to help with respect to DeCSS?

10                MR. GARBUS:    I object to the form of

11        the question.     He didn't -- that was not his

12        testimony.

13                MR. GOLD:     I asked him if he knew

14        whether this web site published this

15        document because of his request for help in

16        the fight against the movie companies.

17                MR. GARBUS:    I object to the form of

18        the question.

19        A.      We encourage people to express

20   themselves and this is an example of someone

21   expressing themselves in ways that we would

22   certainly not sanction, or not support, rather.

23   Because I think it's rather immature.      I think a

24   lot of the facts are wrong and it just goes to show

25   that you cannot control what people say on the Net.
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 1                        Goldstein

 2   Lots of times things aren't entirely right.         So

 3   this is not a fair representation of any position

 4   that we hold.

 5        Q.       Well, it did result from your exhorting

 6   other web sites to help.

 7        A.       I don't think we exhorted.

 8                 MR. GARBUS:   Object to the form of the

 9        question.

10        A.      We basically explained to people how

11   they can express themselves as well if they so

12   chose.    And this is an example of somebody -- this

13   didn't help us in any way.       This is somebody

14   expressing themselves in an immature way.        We can't

15   control it.    It hurts us as well as it helps us.

16   We just explained to someone how they can do it.

17        Q.      Didn't it help you that they were

18   posting DeCSS?

19        A.      No.

20                MR. GARBUS:    I'll object to it.

21        Q.      Can you tell they were posting DeCSS

22   from what is on page 1?

23                Why are you flipping?    I'd rather you

24   didn't.

25        A.       I'm sorry.
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 2           Q.   And stay with the first page so you can

 3   concentrate a bit?

 4           A.   OK, on the top I see a link, but again,

 5   this is text.   I have no idea if that's a real link

 6   or just something that went somewhere else.

 7           Q.   Have you ever seen this site?

 8           A.   I am not familiar with this site, no.

 9           Q.   Now, when it says after number 3, "The

10   Men Behind The Madness, 2600.com," what does that

11   mean?

12         A.     I guess that's their view of us.   "The

13   men behind the madness" is not a view I share.    But

14   that's their perception and it's their right to say

15   it.

16         Q.     I think the second sentence reads,

17   quote, "Oh yeah and if you bitches (government)(DVD

18   ho's)(Feds) can't get the right facts, just don't

19   say anything you dumbasses, period."

20                What did "DVD ho's" mean, h-o apostrophe

21   s?

22         A.     Without the help of anthropologists, I

23   don't think I can really interpret this.

24         Q.     The last line, "DON'T FUCKING COMPLAIN,

25   YOU FUCKING DESERVE IT, YOU RICH FUCKING SNOBS,"
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 2   that refers to who?

 3                MR. GARBUS:     I will object to it.   It

 4           speaks for itself.   From reading it I can't

 5           tell who it refers to.

 6           A.   I have no idea who this person is

 7   talking to.     I mean, it's -- I don't see how I can

 8   interpret something that I am completely unfamiliar

 9   with as far as where it comes from or what they're

10   trying to say.     I get a vague sense that they --

11   they are trying to support us, but just not doing a

12   very good job of it in my view, but I am not going

13   to interpret what they meant.

14        Q.      Did you make any effort whatsoever to

15   isolate your transmission of DeCSS to sites that

16   were involved with education or fair use or

17   cryptography?

18        A.      Do you mean control who got to our site

19   and download the file?

20        Q.      Control who got 2600, who got DeCSS from

21   2600.

22        A.      We don't have controls like that for

23   anything we do.    Anybody is free to read our web

24   site.    We don't ask who is reading our web site.

25   We don't keep track of the people doing it.         We
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 2   don't ask their motives, so no.

 3        Q.       Is it true that when you posted DeCSS

 4   you knew in fact that all sorts of people who had

 5   nothing to do with education or fair use or

 6   cryptography or reverse engineering would download

 7   it from your site?

 8        A.       If they so chose.

 9        Q.       You knew that.

10        A.    I didn't know they would do it, but I

11   knew it was possible, certainly.

12        Q.    Didn't you believe it was far more

13   possible that people who had nothing to do with

14   cryptography or fair use would download it since

15   there was ever so much more of them than they are

16   of those who are involved in education and

17   cryptography?

18        A.    No,     I had no reason to jump to that

19   conclusion.

20        Q.    Wasn't that common sense?

21              MR. GARBUS:     Objection.   It's not

22        common sense.

23   MO         MR. GOLD:     Do you want to mark that too,

24        please.

25        A.    I believe the people that would download
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 2   these files were people who were interested in the

 3   technology.   And as I have already said, it's not a

 4   method for copying DVDs, so you would have to know

 5   something of what you're doing in order to even

 6   make use of these files.    So while people may have

 7   downloaded it, I don't think they understood it or

 8   got anything out of it other than clicking on

 9   something.

10                MR. GOLD:   Martin, I tried to avoid

11        this, but since there will be many more of

12        your witnesses who will be testifying in the

13        next two weeks, I am going to have to bring

14        this up with the court, I believe.    I will

15        review it when I get it, but I think you're

16        doing something that's uniquely improper.      I

17        know you disagree and I really didn't want

18        to bother the court with it.     I pleaded with

19        you to stop, but I guess it has to be.    I'll

20        review it.

21        Q.      In any event, after reading page 1 of

22   Exhibit 6, would you say that this web site or the

23   persons connected with this web site were involved

24   in any educational purpose with respect to DeCSS or

25   cryptography or --
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 2           A.   It's impossible for me to assess the

 3   knowledge of the people behind this.     For all I

 4   know, these are, you know, educated people writing

 5   things just to be funny.      But my initial view is

 6   that it's immature people that don't really know

 7   the facts.   They just want to do some posturing.

 8           Q.   Well, then, do you believe these people

 9   may well be cryptographers?

10        A.      It's impossible for me to say.

11        Q.      You don't know whether they are or not?

12        A.      No, how could I say?   It's text on a

13   page.

14        Q.      Do you know any cryptographers?

15        A.      I know some, yes.

16        Q.      Any like this?

17                MR. GARBUS:   Objection.

18        A.      Any like this?   Not that I have ever

19   seen, no.

20        Q.      But that doesn't give you any clue with

21   respect to these people.

22        A.      I have no idea who these people are.

23   That's what I am trying to say.

24        Q.      Turning to page 3 of that exhibit, the

25   third page, they are not numbered, it's the one
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 2   that begins, and I quote, fuck the system, close

 3   quote.    Do you have it?

 4        A.      I do.

 5        Q.      What web site is this?

 6        A.      I am not sure.

 7        Q.      Can you tell by looking?

 8        A.      Actually, it's a different site than the

 9   one we were just looking at.     Cyberarmy.com,

10   according to the URL at the bottom of the page.

11        Q.      Did you ever see this page before?

12        A.      I don't recognize it, no.

13        Q.      Near the end of the text the following

14   sentence appears.    "Sites like this one are going

15   up by the minute."    Close quote.    Is that true?

16   Were they?

17        A.      A lot of sites went up.    I don't know if

18   it was by the minute.   I don't know how many

19   exactly.   We eventually had to stop putting them up

20   ourselves because we just didn't have the manpower

21   to be constantly adding sites.

22        Q.      You don't know anyone connected with

23   this site?

24        A.      No.

25        Q.      Did you say you didn't think you had
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 2   seen it before?

 3        A.      I don't think so, no.

 4        Q.      Was it attached to your affidavit, do

 5   you know?

 6        A.      No, I don't recall seeing that before.

 7        Q.      Now, this particular document taken from

 8   the web site that you mentioned contains about 18

 9   pages.    What do you understand pages 2 through 18

10   to be?

11        A.      It looks like a list of sites that also

12   have DeCSS on them.

13        Q.      Do you believe the site from which this

14   document comes was trying to promote cryptography?

15        A.      I can't really testify to their motives.

16   Just by reading these few words here.    I see some

17   factual misconceptions.    I see some things that are

18   accurate.    It's impossible for me to say what the

19   motivation of the people behind this is.

20        Q.      Well, do the words forming the title of

21   this message, "fuck the system," give you any view

22   as to or any clue as to what the motive was?

23        A.      I think it would be wrong for me to

24   judge without any further information as to what

25   these people are saying.    How do you define what
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 2   system is it they are talking about?      Maybe they

 3   are talking about a computer operating system.         Who

 4   knows?    I think it would be wrong for me to jump to

 5   conclusions.

 6                MR. GARBUS:    Can I ask you a question,

 7        Mr. Gold?     The date on this is March 23rd.

 8        At least that seems to be the date on the

 9        bottom of this.       Do you know where these

10        documents came from?

11                MR. GOLD:    Yes.

12                MR. GARBUS:    OK.   Would you care to

13        tell us?

14                MR. GOLD:    No.

15        Q.      Turning to the document in Exhibit 6

16   that follows the 18-page document, --

17        A.      "Technomancers of Dark Technology"?

18        Q.      That's it.    What site does that appear

19   to come from?

20        A.      According to this, it says

21   "isupport2600.8m.com.      Actually, the site would be

22   just the latter part of that, 8m.com.       And they

23   named the machine.

24        Q.      Are you familiar with the site?

25        A.      No.
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 1                        Goldstein

 2        Q.    Or the people involved with the site?

 3        A.    No, I don't recognize any names, no.

 4        Q.    Looking at the page, can you tell

 5   whether this is a response to your message to other

 6   web sites to help in the fight against the motion

 7   picture companies?

 8              MR. GARBUS:    I object to the form of

 9        the question.

10        A.    It's a response.      I don't know if it's a

11   response because of us, because it says 2600 and

12   all of the computer users.    It could be a response

13   to any of the other sites that had links up.

14              I can't even say for sure that the links

15   were here, because all it says is "files can be

16   found here."   But there is no indication that the

17   files actually were there.

18        Q.    Is there a clue in the words, quote,

19   support 2600 in the DVD encryption dispute, close

20   quote?

21        A.    Yes.

22        Q.    What clue?

23        A.    Well, support 2600 obviously means

24   they support us.   It doesn't mean it's a response

25   to something we said.    They could have gotten this
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 2   from someone else as well.

 3        Q.       Is it true that your site only links to

 4   sites which have furnished you with their URL?

 5        A.       Yes.

 6                 MR. GARBUS:   Can I hear the question

 7        again?

 8                 (A portion of the record was read.)

 9        Q.       Is it true that those sites which have

10   posted DeCSS or mirrored your site containing DeCSS

11   that in fact supplied you with their URLs did so to

12   enable 2600 to link with them?

13              MR. GARBUS:      Object to the form of the

14        question.

15        A.    Not necessarily.      Lots of sites existed

16   already and in fact, our mirror, our list of

17   mirrors was not the biggest out there.     There were

18   other such lists.    And sometimes what we would do

19   is simply look at the other list and copy some of

20   those ones.

21              So actually, I have to correct myself.

22   It wasn't always submitted to us.      Sometimes we

23   went out and saw another site that had more links

24   and just added to our list.

25        Q.    When you saw the other sites that you
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 1                         Goldstein

 2   added to your list of sites you were linking to,

 3   did you read them and see what they said?

 4         A.   All we did was very quickly, and

 5   actually, we had a few people do this because there

 6   were just so many of them, just quickly go through

 7   and see if in fact they were links to the files

 8   there, because that's what we were representing

 9   them as, as links to DeCSS.

10         Q.   The text would have been irrelevant.

11         A.   The text was not something we focused on

12   only because there was so much of it.

13         Q.   I don't know what that means, I didn't

14   focus on it.   Did you not totally ignore it?

15              MR. GARBUS:     Objection.

16         A.   We didn't tell people to go and ignore

17   it.   But basically what we told the people who were

18   helping us was, are the files there?    If so, we add

19   it.   Because we had to go through hundreds of sites

20   in a relatively short period of time.

21         Q.   Is there any difference between that and

22   ignoring the text on the site?

23              MR. GARBUS:     I object to the form of

24         the question.    It's argumentative.

25         A.   Only that we didn't tell people to
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 1                        Goldstein

 2   ignore it.   We told people to tell us if the site,

 3   if the file was there.      So, no, we didn't tell

 4   people to ignore it.       Did they ignore it to find

 5   the file?    Perhaps.

 6        Q.      So that I gather, those people who you

 7   instructed in the way you just testified to would

 8   have included the site even if the site talked

 9   about copying the movie?

10        A.      It's possible.

11        Q.      You wouldn't --

12        A.      It's possible.    We didn't proofread

13   other people's sites.

14        Q.      When you encouraged people to download

15   DeCSS, did you regard that as a journalistic

16   function?

17        A.      Well, I think we encouraged people to

18   download.

19                MR. GARBUS:    Object to the form of the

20        question.

21        A.      To download DeCSS.    We had it there for

22   people who were interested in it and we had a story

23   about it.    We didn't tell people to download it who

24   had no interest in it obviously.

25        Q.      Were you linking to any sites before the
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 1                        Goldstein

 2   court issued its injunction?

 3        A.    We initially started by linking to sites

 4   back in the fall.

 5        Q.    How many is that?

 6        A.    I can't recall specifically how many.

 7        Q.    So you say you started by linking in the

 8   fall of '99.

 9        A.    Uh-huh.

10        Q.    Thereafter did you stop and solely post?

11        A.    We started -- my recollection is we

12   started by linking.    And then as those sites were

13   threatened, we became a link ourselves by posting

14   the program on our site.    And then there was no

15   need to -- we might have still kept up a list of

16   links in addition to that.

17        Q.    But you don't know that.

18        A.    I don't know for sure.     I would have to

19   look at the records.

20              MR. GARBUS:    Leave a space in the

21        deposition.    We'll get you an answer.

22              MR. GOLD:    The problem with that is I

23        don't know whose answer.

24              MR. GARBUS:    We'll tell you.

25        A.    It's also on the web site.    As I said,
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 1                        Goldstein

 2   we keep our pages up except for when courts tell us

 3   to take them down.     But it's all there the way it

 4   was.

 5          Q.     Did you increase your linking after the

 6   court injunction?

 7          A.     We didn't increase so much as more sites

 8   were submitted to us and more sites popped up and

 9   it became, you know, it just kind of got out of

10   hand actually, because we couldn't handle the

11   number that were coming to us.

12          Q.   How many did you put up that you linked

13   to yourself?

14          A.   Me personally?

15          Q.   Anybody at 2600.

16          A.   It would have to be over a hundred, and

17   this is within a few days of the injunction.

18          Q.   So it's over a hundred links that you

19   yourself put up.

20          A.   That I was aware of.   I don't know how

21   many specific --

22          Q.   That was right after the court's

23   injunction?

24          A.   Yes.    I believe it was --

25          Q.   Why?
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 1                            Goldstein

 2          A.      -- the day of or the day after.

 3          Q.      Why?

 4          A.      It was basically a reaction that various

 5   people in the community had.

 6          Q.      A reaction to the -- I am talking about

 7   you.    You put up a hundred.        What reaction did you

 8   have to the court injunction that caused you to do

 9   that?

10          A.      Our immediate reaction to the court

11   injunction was to take the files down.          We had

12   already had, I believe, links to other sites, and

13   when we started getting massive submissions, we

14   realized that we had to post those as well as part

15   of the story, because that was becoming a part of

16   the story.

17          Q.      Now, you testified I believe that 2600

18   itself decided to link to over a hundred sites

19   pretty soon after the court injunction.

20          A.      Uh-huh.

21          Q.      Why?

22          A.      Because as I said, that became the

23   story.      The fact that all these other sites were

24   popping up and that this was something that simply

25   wasn't going to go away, that became part of the
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 2   story and we had to show what was going on.    That

 3   was a very major part.

 4        Q.      Under oath I am asking you didn't you do

 5   the linking of those one hundred sites because you

 6   were showing the court, well, if you think you can

 7   stop us, you can't?

 8        A.      No, that was not the --

 9        Q.      Not at all.

10        A.      That was not our rationale behind it.

11   The rationale was that this is a program that is

12   out there.   We followed the injunction to the

13   letter.   In fact, the court even addressed the

14   issue of linking and found that it was a different

15   issue and did not rule on it.    So we took that to

16   mean that it was a different issue.    And that

17   linking was perfectly OK.

18                And if we were going to be shut down,

19   you know, we were going to be told not to link,

20   then obviously all the other sites that were

21   linking, including Yahoo and Alta Vista, would have

22   to be told the same thing.

23        Q.      Did you have a conversation with any

24   lawyer --

25        A.      Yes.
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 1                         Goldstein

 2        Q.       -- before you linked?

 3        A.       Um --

 4        Q.       After the court issued its injunction.

 5        A.       We had conversations with lawyers at

 6   that time.

 7        Q.       Don't tell me what they were.   Could you

 8   name who they were?

 9        A.       Allon Levy, Robin Gross, the Electronic

10   Frontier Foundation in California.

11                MR. GOLD:   Before you switch, Martin,

12        you told me you wanted to break at 12:30.

13        We said yes, if that's when you want to

14        break.    And you have also kindly volunteered

15        to try to finish tonight even if we have to

16        stay a little late.

17                MR. GARBUS:   Yes.

18                MR. GOLD:   I can't tell if it will or

19        not.

20                THE VIDEOGRAPHER:    The time is 12:26

21        p.m. and this completes tape number 3 of the

22        videotape deposition of Mr. Emmanuel

23        Goldstein.

24                (A luncheon recess was taken at

25        12:26 p.m.)
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 1                        Goldstein

 2               A F T E R N O O N    S E S S I O N

 3                   (Time noted:    2:06 p.m.)

 4                THE VIDEOGRAPHER:   The time is 2:06

 5        p.m. and this begins tape number 4 of the

 6        videotape deposition of Mr. Emmanuel

 7        Goldstein.

 8   E M M A N U E L      G O L D S T E I N , resumed and

 9        testified as follows:

10   EXAMINATION BY (Cont'd.)

11   MR. GOLD:

12        Q.      Mr. Goldstein, do I understand correctly

13   that your testimony was that you were posting and

14   later linking to other sites that were posting

15   DeCSS because that posting and that linking was a

16   part of your journalistic story?

17        A.      That was part of the story, yes, that's

18   correct.

19        Q.      When did you write the story?

20        A.      Well, the initial story was written I

21   believe it was early November on our site, and that

22   was the story that described the development which

23   at the time we were -- we had only sketchy details

24   about.    We reported what we knew.    And then later

25   we became part of the story, and that's when we
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 2   started writing a lot more about it.

 3          Q.   You didn't write about it every day, did

 4   you?

 5          A.   No.

 6          Q.   How long were you posting?

 7          A.   I'm sorry, how long what?    Was I

 8   posting?

 9          Q.   Posting DeCSS on the 2600.

10          A.   I think we first posted it in late

11   November.

12          Q.   And you posted it late November right up

13   until the court injunction?

14          A.   Yes.   As soon as the court injunction

15   happened, I believe it was January 20th, that's

16   when we took it down.

17          Q.   So you were posting for close to two

18   months.

19          A.   Yes.

20          Q.   24 hours a day.

21          A.   Well, it's just up.   Yes.

22               MR. GARBUS:   Can I hear the end of it?

23               (A portion of the record was read.)

24          Q.   Can you tell me why that posting for two

25   months every day 24 hours a day was necessary to
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 2   your story?

 3        A.    Well, it's --

 4              MR. GARBUS:     I will object to it.

 5        A.       Every story on our site is up 24 hours a

 6   day constantly until the end of time.     So it's not

 7   like we were sitting there saying, you know, it's

 8   up 24 hours day and night.     It was a story and

 9   people continued to have an interest in that story,

10   and that interest continues till today.

11        Q.    Can you tell us why posting every day

12   was necessary for the story?

13        A.    Well, as I've said --

14              MR. GARBUS:     Objection.

15        A.       -- we did not post it every day.    We

16   posted it once and it stayed up.

17        Q.    You didn't take it down, did you?

18        A.    No.     It's one action, posting it.   We

19   took it down when we were ordered to take it down.

20        Q.       Yes, but you could have taken it down

21   any day within that two-month period, couldn't you

22   have, if you wanted to?

23        A.    If we wanted to, yes, but we didn't take

24   it down.

25        Q.    Why not?
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 2        A.       Because we felt it was right to have it

 3   on our site.    We felt it was part of the story.

 4        Q.       But I am trying to understand why the

 5   words "DeCSS" on your site for two months was

 6   necessary to the story.

 7        A.       Because that is what the story centers

 8   around.   For instance, if the story centered around

 9   the picture, we'd show the picture.      And this was

10   the picture.    This was the story that everybody was

11   focused on.    To take it down without a court order

12   would have been wrong in a journalistic sense.

13        Q.    But you weren't writing a new story

14   about DeCSS every day, were you?

15        A.       No, and we didn't post it every day.      We

16   posted it once.

17        Q.    And you didn't take it down for two

18   months, right?

19        A.    We didn't take anything down.

20              MR. GARBUS:     Objection.   Asked and

21        answered.

22        Q.    How long have you been linking to other

23   sites that post DeCSS?

24        A.    As I said earlier, I believe we had

25   links up from the beginning.     That is, before we
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 2   even had it up on our site.        I would have to check

 3   to make absolutely certain about that, but the vast

 4   majority of links started coming into us after the

 5   injunction was granted.

 6           Q.   And you have been linking to many other

 7   sites posting DeCSS ever since?

 8           A.   We posted the list of what we had

 9   received, and this went on for I think a few weeks

10   until we just got overwhelmed with it, and we had

11   to do other things, so we stopped updating it.

12        Q.      So you have been linking to many other

13   sites containing DeCSS for about five months at

14   least?

15        A.      I would say that's about right, yes.

16           Q.   Every day.

17        A.      Well, as I said, we don't take things

18   down.

19        Q.      That's because you decide not to, I

20   gather.

21        A.      Uh-huh.

22        Q.      Why was linking to over a hundred or

23   more sites that post DeCSS necessary to your

24   journalistic story?

25                MR. GARBUS:    Objection.
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 2         A.   Because that was part of the story.       The

 3   story was that hundreds of sites were springing up

 4   and showing support in various ways, all of which

 5   had one thing in common, that they were posting the

 6   source of this program, and we thought that was the

 7   story right there.     That was something that

 8   deserved attention, to show just how many people

 9   were out there and what they were doing.

10         Q.   And it was necessary to the story to

11   show that every day for five months?

12         A.    It was the story.    And the stories stay

13   up.   So the story will be up forever.    Until --

14         Q.   I see.

15         A.   That's how it works.

16         Q.   Well, is it true that every story you

17   write in your magazine is vibrant and alive every

18   single day for the rest of eternity?

19              MR. GARBUS:    Objection.

20         Q.   Or just your life?

21         A.   Are you referring to the magazine or to

22   the web site?

23         Q.   Web site.

24         A.    I wouldn't say that they all keep

25   interest as long as this one has, no.
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 2        Q.     But if you didn't write a story every

 3   day about DeCSS, why would you have to keep linking

 4   to DeCSS every day 24 hours a day for five months?

 5        A.     I am not sure I understand that

 6   question.

 7        Q.     You don't understand it.

 8        A.     I am not sure I understand what you're

 9   saying.

10               MR. GOLD:   Could you read it back to

11        the witness.

12               (A portion of the record was read.)

13        A.     I am not sure if you're saying that by

14   our writing stories that we're perpetuating the

15   need to link.   Is that your --

16        Q.     No, you weren't writing stories every

17   day for five months.

18        A.     We wrote stories whenever something new

19   happened in the case.

20        Q.     But every single day whether you wrote

21   stories or didn't about DeCSS you linked to other

22   sites containing DeCSS for over five months?

23        A.     As I've said, the story that we wrote

24   that had all the links remains up.     Because that

25   was a story -- I believe it was written in January,
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 2   and that has the list of all of the links, and

 3   that's just there.        Just like the story we may have

 4   written last week will be there in five months.

 5           Q.      But it stays there because you don't

 6   take it down, isn't that correct?

 7           A.      We don't take down our stories, no.

 8           Q.      You take them down when the court orders

 9   you to.

10        A.         When the court orders us to take

11   something down, we take it down.

12        Q.         Is there any other reason that you can

13   give me for why this posting and linking that we

14   have been discussing are part of your journalistic

15   story?       You don't have to repeat anything that

16   you've said already.        I am asking if you know any

17   other reasons or have any other reasons for saying

18   that.

19        A.         I think I've covered it all.

20        Q.         I see.   Will you keep linking to the web

21   sites posting DeCSS even if the pace of

22   technological change allows rapid transmission of

23   movies over the Internet?

24                   MR. GARBUS:   I object to that.   You're

25        asking the witness to speculate.
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 2        A.    My answer is yes because it's

 3   irrelevant.

 4        Q.    Do you plan to keep linking to web sites

 5   posting DeCSS even if the pace of technological

 6   change makes the storage of movies on a hard drive

 7   much easier, takes much less space?

 8              MR. GARBUS:     I object to the question.

 9        It calls for speculation.

10        A.    I would say the same thing.      It's

11   irrelevant to what the story is about.

12        Q.    So you will keep right on linking or

13   posting if the court allows to.

14              MR. GARBUS:     I object.

15                 MR. GOLD:   Strike that.

16        Q.    Then I gather no matter what

17   technological developments may bring, your plans

18   are to keep posting and linking DeCSS unless the

19   court stops it.

20              MR. GARBUS:     Objection.    Calls for

21        speculation.

22        A.    I can repeat what I said about we keep

23   stories on our web site because it's how we present

24   our stories.    We don't take things down.    If we're

25   directed to take it down, we take it down.
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 2           Q.   So the answer to my question is yes.

 3           A.   I suppose, yes.

 4           Q.   Are your plans to keep linking to DeCSS

 5   web sites even were you to determine that hundreds

 6   of thousands of movies were being transmitted over

 7   the Internet?

 8                MR. GARBUS:     Object on the grounds it

 9           calls for speculation.

10        A.      Again, I have to repeat.

11        Q.      Your answer would be the same.

12        A.      My answer would be the same.

13        Q.      So your current plans are to do all of

14   these things no matter which of the changes that I

15   have just mentioned take place; is that true?

16        A.      Again, it's -- I can't speculate on

17   that.    Our site is a representation of new stories.

18   That is part of the news story.

19        Q.      So your plans would remain to keep

20   posting or linking.

21                 MR. GARBUS:    I will object.

22        Q.      Is that true?

23                MR. GARBUS:    I will object on the

24        grounds of it calls for speculation.

25        A.      I can't answer any further based on
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 2   that.

 3        Q.      Did you testify before, I can't

 4   remember, that you were familiar with Napster?

 5        A.      I said I used it maybe once or twice.

 6        Q.      So you know how it works?

 7        A.      I have a vague knowledge of how it

 8   works.    I am no expert.

 9        Q.      Do you know that it's a system which

10   allows members of the public with Internet access

11   to share files of songs with each other?

12        A.      My understanding of it is that it allows

13   people to -- it's kind of like a directory.       It

14   points people at sites.

15        Q.      So they can exchange music?   Is that

16   your understanding?

17        A.      I don't know what the intent is.     I

18   mean, that's --

19        Q.      Well, when you used it did you use it to

20   download some music you found on Napster?

21        A.      I used it to see how the program worked,

22   to see what the fuss was all about, to see if it

23   actually worked.

24        Q.      Did you download music?

25        A.      I listened to one song.
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 2         Q.      Does that mean you downloaded it on to

 3   your hard drive?

 4         A.      Yes, it was downloaded.   That's the way

 5   it works.     You connect to somebody's site and you

 6   listen to it.

 7         Q.      Do you know whether or not there are

 8   sites in the United States today that offer such

 9   file sharing for both movies and records?

10         A.    I am not aware of any.

11         Q.    If you were to find out that there were,

12   would you stop posting or linking to DeCSS?

13                 MR. GARBUS:   I object on the grounds

14         that it calls for speculation.

15         Q.    If you found that out would you plan to

16   keep on, do you now plan to keep on posting and

17   linking?

18         A.    I can't answer that.    It's based on a

19   speculation.    I can't really --

20         Q.    You don't know one way or another; is

21   that right?

22         A.    Other than what I have already testified

23   to.

24         Q.    Well, you've already testified that it's

25   not the point.     But I don't know if that's your
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 2   answer to this question.

 3                 MR. GARBUS:   I object to --

 4        Q.       Is it?

 5                 MR. GARBUS:   -- your summing up what

 6        he's testified to.

 7        Q.       Is that right?

 8        A.       My answer is what I have given, which

 9   is --

10        Q.      Which is what?

11        A.      What I've said.

12           Q.    Which is what?

13                MR. GARBUS:    I object.   He's already

14        testified that it was speculation.

15        Q.      Which is what, Mr. Goldstein?

16        A.      Which is that it's irrelevant to the

17   story.

18        Q.       And you would keep posting and linking.

19        A.      We have already posted.    It's not a

20   question of continuing to post.     It's a question of

21   we've done this.

22        Q.      You wouldn't take down your posts or

23   your links?

24           A.    We take down our sites when we're

25   legally obligated to take down our -- our links
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 1                        Goldstein

 2   rather.

 3        Q.       Someone would have to get another

 4   injunction if one wanted to get you to take it down

 5   at that point.     Is that true?

 6                 MR. GARBUS:    I object.   He didn't say

 7        that.    He said --

 8                 MR. GOLD:    Well, let's ask him what he

 9        said.    I asked him if that were true.

10                MR. GARBUS:     No, no.   He said --

11   MO           MR. GOLD:     Do you want to mark this

12        again?

13                MR. GARBUS:     That's not what he said.

14                Can we hear the witness's last answer.

15                (A portion of the record was read.)

16        Q.      Do you know whether or not the vast

17   majority of sites to which you were linking contain

18   object code versions of DeCSS?

19                MR. GARBUS:     He has already -- you

20        have already asked him that and he's already

21        answered.

22        Q.      You can answer.

23        A.      As far as my understanding, it's in a

24   variety of formats.       I am not -- I am not certain

25   if object code is one of them.
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 2        Q.    Does that mean you don't know?

 3        A.    I don't know for sure.

 4        Q.    Can you read object code?

 5        A.    No.

 6        Q.    Can you read source code?

 7        A.    Not very well.

 8        Q.    Are there any sites to which you link

 9   where you know that DeCSS is being used in

10   connection with reverse engineering?

11        A.    As I said before, I don't know the

12   motivation of what's going on in the heads of

13   people that are running other sites.   All we know

14   is those sites have programs.   That's the extent of

15   our knowledge.

16        Q.    Do you understand that people involved

17   in reverse engineering could get DeCSS without

18   anyone posting or linking?

19              MR. GARBUS:   Object to the form of the

20        question.

21        A.    Sure.

22        Q.    How?

23        A.    If they already had the program -- if

24   they already had CSS themselves and they were able

25   to figure it all out, they could do it without even
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 1                      Goldstein

 2   being on the Net at all.

 3        Q.    Isn't there a chat room where people who

 4   are involved in reverse engineering of CSS go to?

 5        A.    That I don't know.

 6        Q.    You don't know?

 7        A.    No.

 8        Q.    Is there a chat room to which people who

 9   are involved in cryptographical research concerning

10   DeCSS can go to?

11        A.    Again, I don't know.

12        Q.    Did you ever try to find out?

13        A.    No.

14              MR. GARBUS:     Can I ask you a question?

15        I won't if it's an interference.

16              MR. GOLD:   It's interference.   I

17        prefer you just to say object and nothing

18        else whenever you do, but I don't know that

19        you will do that.

20        Q.    Do you still have your May 3rd affidavit

21   in front of you?

22        A.    There's no date on it.

23        Q.    There is on the back page.

24        A.    Oh, on the back page, OK.    Yes, I do.

25        Q.    If lawyers do something it's going to
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 2   come out backwards.

 3                Turning to paragraph 20 at page 7, I am

 4   going to count down from the top, beginning with

 5   the line that says "Our web site...."

 6           A.   OK.

 7           Q.   Now, one, two, three, four, five,

 8   six -- make it five lines down, "This web site is

 9   an on-line...."     Do you see that?

10        A.      Yes.   "This web site is an on-line

11   supplement to the content published in the print

12   magazine, with an emphasis on current news.      It

13   does not exist, as said in the injunction, to

14   distribute illegal code.     If we were interested in

15   doing this, we could easily do a more efficient job

16   and a less public one."

17        Q.      How?

18        A.      Well, I am not involved in the world of

19   piracy, but I do know that if you wanted to

20   distribute something illegally you don't, um, you

21   don't    put it out for the whole world to see.

22   You -- criminal networks don't advertise.     They

23   exist secretly.     They're a lot more efficient when

24   people don't know about them.    If we believed this

25   was a crime, we wouldn't be doing it like this.
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 2        Q.       Well, you say here, "If we were

 3   interested in doing this...." which I think means

 4   the distribution, the illegal distribution of the

 5   code.

 6        A.       Uh-huh.

 7        Q.       ".... we could easily do a more

 8   efficient job and a less public one."

 9                 I am asking you how you would do that.

10                MR. GARBUS:     Objection.   He just

11        answered.

12                MR. GOLD:     No, he didn't.

13        A.      It's a theoretical question.      I am not a

14   criminal.    I am not somebody who distributes things

15   illegally.    But I imagine if I was to do something

16   like this, the way I wouldn't do it would be to put

17   it on my web site and tell everybody about it.

18        Q.      It was my impression that you were

19   swearing to the statement that we could do a more

20   efficient and less public job if we were distributing

21   illegal code.    I am asking you why you said that.

22                MR. GARBUS:     I object to it.   The

23        sentence speaks for itself.

24        Q.      How would you do a more efficient, less

25   public job?
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 1                        Goldstein

 2                MR. GARBUS:    Object.   He just

 3        answered.

 4        A.      I thought I just answered this too.

 5   But what I am trying to point out is that if we

 6   were involved in a criminal conspiracy of some

 7   sort, the way we are doing it now, the way we have

 8   it up on our web site, would be absolutely the

 9   worst, most inefficient way to both engage in the

10   crime and distribute the criminal material.

11        Q.      What would be the better way?

12        A.      To have an organized network of people

13   that keep quiet, that don't tell the entire world

14   about it, to surreptitiously distribute the code

15   everywhere, were it to be used in a bad way for a

16   particular crime.    And that's not what this code is

17   about.    So I don't think it's relevant at all.

18        Q.      Weren't you describing the Internet?

19   People with false names, putting things out.       How

20   does anyone find you except by writing you an

21   E-mail?    How do they locate you?      How do they talk

22   to you in person?

23        A.      The same way --

24                MR GARBUS:    Objection.

25        A.      -- people locate anything on the
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 1                       Goldstein

 2   Internet, through search engines, through publicity

 3   at various --

 4        Q.      That just gets one to a web site.

 5        A.      What else are you asking?

 6        Q.      Well, how would they find a person?      How

 7   would they find a person to conspire with?

 8        A.      Again, if you're involved in a crime --

 9   I truly can't answer that, because I am not

10   involved in a crime.      So I don't know how they

11   would --

12        Q.      Currently.    I mean, it's not like you

13   never did.   It's not like you were never involved.

14                MR. GARBUS:    Objection.

15        Q.      You have some --

16                MR. GARBUS:    Objection.

17        Q.      -- information about such things.

18        A.      All I can do is theorize on that.

19        Q.      All you can do is, as I remember it, is

20   break into other people's computers.

21                MR. GARBUS:    Objection.

22        Q.      All you did do in the eighties --

23                MR. GARBUS:    Objection.

24        Q.      -- that was criminal.       Is that right?

25                MR. GARBUS:    Objection.
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 2          A.   First of all that predates the

 3   Internet.   And second of all, it's not all I did in

 4   the eighties.

 5          Q.   Paragraph 21, below paragraph 20, will

 6   you read the first two sentences of that paragraph,

 7   sir?

 8          A.   "The sites containing DeCSS mirrors to

 9   which we currently link are very diverse in nature.

10   Some of the sites have simply put the files up as a

11   form of protest."

12          Q.   And the next sentence.

13          A.   "Others explain exactly why they are

14   doing this as a social commentary."

15          Q.   You go on to say, "Some are juvenile in

16   nature, using a tone that we would not employ

17   ourselves"; is that right?

18          A.   As that site demonstrated, yes.

19          Q.   The site that said what?

20          A.   The site that you introduced as Exhibit 6.

21          Q.   What was juvenile about it?

22          A.   The language was juvenile.    The attitude

23   was juvenile.

24          Q.   Which language?

25          A.   The multiple cursing and antigovernment
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 2   DVD "ho" speak.    It's not at all how we would

 3   present ourselves.

 4          Q.    Are there any web sites containing DeCSS

 5   mirrors who are doing it solely to copy DVDs and

 6   allow other people to copy DVDs?

 7          A.    I have never heard of one.

 8          Q.    Is the answer you don't know or just --

 9          A.    My answer is no, I've never heard of

10   one.

11          Q.    No, you never heard of them.

12                Which sites do you know that have put

13   DeCSS on their web site solely as a form of social

14   protest?    Could you name those?

15          A.    I would have to have a list.   I would

16   have to go through them.    I can think of -- I can

17   think of cryptome.org as a site that has posted the

18   source code.   And I know they are not juvenile in

19   nature.

20          Q.    Which sites post DeCSS or link to DeCSS

21   that are composed only of professionals who go into

22   great detail as to what the programs do and how

23   they are used?

24          A.    Again, you have to go down the list.

25          Q.    Can you name any?
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 2        A.      Not off the top of my head, no.

 3   Actually, that's not true.    I can think of one.

 4   OpenDVD.org is one that has very intelligent views.

 5   If I thought about it for a long time, I could

 6   probably come up with a second one.     There are

 7   various --

 8        Q.      Out of how many would you estimate?

 9        A.      I am not saying that's all there is out

10   of all --

11        Q.      No, I am just asking you how many sites

12   are there today that post or link to other sites.

13        A.      Oh, there are thousands.   I mean, we

14   have only a couple of hundred on our site, but

15   there are thousands.

16        Q.      I see.   And you can think of only two

17   who do so as a form of social protest?

18        A.      If you ask me how many were juvenile, I

19   can think of even less, because I don't memorize

20   URLs of web sites.

21        Q.      Is it your understanding that DeCSS

22   enables users to defeat or bypass regional coding?

23        A.      That's my understanding, that it's one

24   of the capabilities.

25        Q.      Where did you get that understanding
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 2   from?

 3        A.      From technical information that I have

 4   seen.     Talked to people on the Net.

 5        Q.      Can you name the people who identify any

 6   of the information?

 7        A.      I believe I have seen this on a couple

 8   of the sites that I mentioned just now.     I have

 9   seen mention of that.    I know from talking to

10   people at conferences, from various other

11   exchanges, at 2600 meetings and just various casual

12   conversations that that is -- that is one of the

13   things that DeCSS is able to accomplish, defeating

14   region coding.

15        Q.      And what is region coding?

16        A.      Region coding is an artificial control

17   that was implemented I believe by the DVD CCA to

18   prevent someone from watching a DVD in a different

19   country.    It's the equivalent of, if it happened to

20   a CD, you would not be able to buy a CD in England

21   and listen to it here.    Something that we're used

22   to doing.

23        Q.      Do you know why plaintiffs use regional

24   coding?

25        A.      I have no idea.   I tried to figure that
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 2   one out.

 3        Q.      You can't imagine.

 4        A.      I imagine it has something to do with

 5   money.    That's as far as I can go.

 6        Q.      Anything having anything to do with

 7   money is bad.

 8                MR. GARBUS:   Objection.

 9        A.      I didn't say that.

10        Q.      How much do you make a year from your

11   magazine?

12        A.      In the range of 40 to 45,000.

13                MR. GARBUS:   Let the record indicate

14        that I gave Mr. Gold the tax returns.    I

15        don't think it's relevant to this

16        deposition, but since it's more confidential

17        for a period of time, and rather than have a

18        difficult time with Mr. Gold, those

19        documents were furnished to him.

20                MR. GOLD:   You are correct insofar as

21        you go, but you travel such a short

22        distance.    You came in here after lunch

23        today with a package that you put on the

24        table and you said contained some tax

25        returns.
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 2               I assume you're telling the truth.       I

 3          haven't had a chance to look into it yet.

 4          That's the rest of it.

 5               MR. LITVACK:     Let me interject.   I

 6          believe you said they were marked

 7          confidential?

 8               MR. GARBUS:     The whole deposition is

 9          marked confidential.

10               MR. LITVACK:      Oh, these documents.

11                MR. GARBUS:    No, but I think

12          everything that goes into the deposition, as

13          I understand it, is confidential, all

14          documents, everything, until such time --

15               MR. GOLD:     Until ten days, I think.

16                MR. GARBUS:    Until ten days and then

17          there has to be some kind of a procedure or

18          practice that we go through.

19          Q.   Is it your understanding that your

20   linking to sites containing DeCSS is a fair use?

21          A.   That my linking in particular?

22          Q.   Would you like the question read back to

23   you?

24          A.   I'm sorry?

25          Q.   Do you want the question read back?
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 2        A.    Yes.

 3              (A portion of the record was read.)

 4              MR. GARBUS:    I object to the question

 5        on the grounds it calls for a legal

 6        conclusion.

 7        A.       I am trying to understand it.   That's --

 8        Q.    You don't have any understanding then

 9   about that.

10        A.    It's -- it calls for a legal

11   interpretation.

12        Q.    No, I am asking you for your

13   understanding as a journalist, if you have any.

14        A.    I can't say I do on that particular

15   issue.

16        Q.    OK.     Is it true, sir, that you believe

17   you are lawfully linking to sites that post DeCSS?

18        A.    Yes.

19        Q.       Is a part of the reason for that belief

20   the use made of DeCSS by people who go to your web

21   site and then link over to another site that

22   contains DeCSS and then download it?

23              MR. GARBUS:    I object to the form of

24        the question.

25        Q.    In other words, I'm asking you whether
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 2   it's true that you believe it's appropriate for you

 3   to link because of the use some people make of

 4   DeCSS.       Like cryptography.

 5                   MR. GARBUS:   Objection.

 6           Q.      Like cryptographical research.    I'm

 7   sorry, those are the same thing.        Like reverse

 8   engineering.

 9                   MR. GARBUS:   I object to that.   He has

10        already testified.       It's a bad question.

11        A.         Our reason for initially posting the

12   material was for that very reason, and the linking

13   is a continuation of that.        So I suppose that would

14   be yes.

15        Q.         I see.

16        A.         If I understand the question correctly.

17        Q.         And is it true that you can think of no

18   other way to give DeCSS to those people other than

19   by linking in the manner that you are doing it?

20                   MR. GARBUS:   I object to that.   That

21        isn't what he said.

22        A.         We're not thinking of ways to get it to

23   people.       We've posted it, we did post it on our

24   site.    It was part of a story.      The linking is also

25   part of the story.
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 1                      Goldstein

 2              As I said before, if we wanted to

 3   distribute it to people, I am sure there are a lot

 4   more efficient ways of doing that.    That's not what

 5   it was about.

 6        Q.    So you didn't link to other sites

 7   containing DeCSS and you didn't originally post to

 8   help cryptographers and to help reverse engineers.

 9              MR. GARBUS:     I will object.

10        Q.    Is that true?

11              MR. GARBUS:   I will object to the

12        question.

13        A.    It's related, I mean, it's all part of

14   the quest for knowledge, and that's why the story

15   is of interest and that's why we put the story on

16   our site, so that people who are interested in

17   reverse engineering and cryptology, research in

18   that field, would have something to study, as

19   something to analyze and perhaps study something

20   else as a result of this.

21              MR. GOLD:   I am going to ask the

22        reporter to read that question back to you

23        and I am going to ask you if there's

24        anything you have to add to your answer.

25              (A portion of the record was read.)
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 1                         Goldstein

 2          Q.   Is it also true that you believed it was

 3   appropriate to post or link the sites that post

 4   DeCSS so that anyone in the country or in the world

 5   who wanted to know about DeCSS could get DeCSS?

 6          A.   We believe knowledge should be available

 7   to anyone, yes.

 8          Q.   So the answer is yes?

 9          A.   Yes.

10          Q.   You referred in your testimony to movie

11   reviewers who make clips of movies.

12          A.   Uh-huh.

13          Q.   And that was one fair use of DeCSS.      Do

14   you remember that?

15          A.   That's an example of fair use, period,

16   yes.

17          Q.   Can't the same thing be done by using a

18   CSS-licensed DVD player?

19          A.   That's not my understanding of how the

20   technology works.

21          Q.   It's not.

22          A.   No.    You wouldn't be able to copy to

23   another medium such as videotape.

24          Q.   Do you know whether a CSS-licensed DVD

25   player enables the user to fast forward through the
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 2   movie?

 3        A.    My understanding is that it does not.

 4        Q.    Where did you get that from?

 5        A.    I heard that from, again, numerous

 6   sources in the community.

 7        Q.    Which community?

 8        A.    The Linux community, open source

 9   community, the hacking community.    And it's -- I

10   believe it's well documented in the specs for CSS,

11   that if that is not commonly used at the moment,

12   that the capability certainly exists for that to be

13   currently used.   That CSS enables that.

14        Q.    If you have a view, what is your view of

15   how quickly technology is accelerating in regard to

16   the delivery of substantial amounts of file content

17   over the Internet?

18              MR. GARBUS:    I will object to the

19        witness speculating.    Go ahead.

20        A.    It's advancing.    I wouldn't say it's

21   advancing extremely fast.    It's advancing.

22        Q.    And that knowledge comes from --

23        A.    Personal experience.

24        Q.    -- all these communities that you're

25   talking about.
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 1                        Goldstein

 2        A.      No, that's personal experience.

 3   Obviously things do get faster.    But they are not

 4   getting extremely fast.    I think we're a ways away

 5   from that.

 6        Q.      How long is that, quote, a ways away --

 7                MR. GARBUS:   I object to the form of

 8        the question.

 9        Q.      -- close quote?

10        A.      I would consider it many, many years.

11        Q.      And you heard that from these same

12   communities that you chat with?

13        A.      I have heard that, but I have also

14   witnessed it myself.

15        Q.      How can you witness things that haven't

16   happened?

17        A.      No, I have witnessed the change, say,

18   between the early nineties and now.     And even if

19   you were to triple that, it still would not be

20   anything near what would be needed, what would be

21   needed to facilitate this.

22        Q.      Is it your understanding that it's

23   impossible to create an unbreakable encryption

24   system?

25                MR. GARBUS:   I object to the question.
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 2        I will allow the witness to answer.      He is

 3        not a cryptographer.

 4        A.     My understanding is that it's highly

 5   unlikely.   Highly unlikely.   And I think that's my

 6   personal view on it, my understanding.

 7        Q.     In your view is any encryption system no

 8   matter how sophisticated subject to cracking if

 9   enough time and effort is devoted to it?

10               MR. GARBUS:   I will object to it.   He

11        is not a cryptographer.

12        A.     My understanding is that given enough

13   time and effort, yes.

14        Q.     And your understanding comes from?

15        A.     Mostly my personal view.   Also

16   supplemented by various conversations I have had

17   over the years with people seeing how technology

18   advances.

19               MR. GOLD:   We'll mark this as

20        Exhibit 7.

21               (Plaintiffs' Exhibit 7, 2-page

22        document, 2600 News Archives, December 1999,

23        marked for identification, as of this date.)

24        Q.     Turning to the second page of that,

25   Mr. Goldstein, the beginning of the first full
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 1                       Goldstein

 2   paragraph, second sentence, the beginning of the

 3   first full paragraph on page 2, could you read the

 4   first several sentences.

 5         A.    "We don't take this kind of thing

 6   lightly.   We knew there were certain risks attached

 7   to our taking a stand on the DVD issue.    That in

 8   itself seems incredible to us as we had nothing to

 9   do with the actual cracking of the encryption."

10         Q.    What were the risks that you referred

11   to?

12         A.    The risks were basically we had seen

13   people being threatened simply for having DeCSS on

14   their web site, something that we found to be

15   inconceivable.    And we realized at that point, once

16   it started happening to us, or we -- actually, we

17   realized it as we posted the information on our

18   site that that could very well move over to us, as

19   it did, that there's risks involved in freedom of

20   speech.    There always are.

21         Q.    In answering to the last question you

22   used the expression what would "move over to us."

23   And I don't know what that means, but I am going to

24   ask the reporter to read you your answer and I am

25   going to ask you to tell me what that means, what
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 2   would move to us.

 3               (A portion of the record was read.)

 4          Q.   What would move over to us are the

 5   words that are --

 6          A.   The threats, the intimidation.

 7          Q.   And the threats you're referring to are

 8   threats of lawsuits?

 9          A.   Threats of lawsuits and actual lawsuits,

10   yes.

11          Q.   And what intimidation?   Is intimidation

12   something different from that?

13          A.   No, I consider that intimidation right

14   there.

15          Q.   But you do believe that people in this

16   country have a right to take others to court when

17   they feel their rights have been violated?

18          A.   It's the American way.

19          Q.   You don't like that way when you're on

20   the defendants' side?

21          A.   I don't think anybody likes to be on the

22   defending side of it, but there's nothing illegal

23   about it if that's what you're asking.

24          Q.   But it's intimidating.

25          A.   Yes, it absolutely can be.
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 1                           Goldstein

 2           Q.   Can you think of any way to avoid that

 3   kind of intimidation?

 4                MR. GARBUS:     I object to the form of

 5           the question.

 6           A.   In this particular case I think some

 7   kind of a dialogue, some kind of willingness to

 8   learn from one's mistakes as far as developing

 9   technology.       I think there's a lot to be learned

10   here.    I think we could have a strengthened

11   encryption system.       We can have something that will

12   work and won't fall apart quite as quickly as this

13   did.

14          Q.    Later in this column, I for the first

15   time take great pleasure in your writing, and the

16   words that give me that pleasure are contained in

17   the middle of the next paragraph beginning with

18   "They may very well."      Would you read those two

19   lines?

20                MR. GARBUS:     Mr. Gold, I think that if

21           you look at it, compliment aside, according

22          to the page you put down, this is not his

23          writing.    Someone else's.

24          Q.    Did you not write this?

25          A.    I would have to look this over.
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 1                        Goldstein

 2         Q.      Why don't you give it a lookover.

 3                 MR. GARBUS:    Excuse me, Mr. Gold.     If

 4         you look at the last sentence --

 5                 MR. GOLD:     Mr. Garbus, there is no

 6         question before the witness yet.      Do you

 7         think you can refrain from making a speech?

 8                 MR. GARBUS:    I am trying to help you.

 9                 MR. GOLD:   Good.   I am grateful for

10         your instinct, but I would prefer you not

11         help me.

12         A.      I think this was a collaboration.       I

13   think most of the first part, including the first

14   two items before this, I mostly put together and

15   the rest is, um, the rest of the facts in here I

16   believe were done by our webmaster and I approved

17   it.

18   MO            MR. GOLD:   Mr. Reporter, before the

19         witness answered the question, Mr. Garbus

20         stated on the record that this was not his

21         writing.   That statement was followed by the

22         witness's answer.      I would like you to mark

23         that.

24         Q.      Now, who wrote the two lines you read?

25         A.      I believe that was written by our
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 1                        Goldstein

 2   webmaster, but again, I can't be one hundred

 3   percent certain because this was -- I am not sure

 4   when this was written.

 5         Q.     I think you gave me his name once

 6   before, but I forget it.       Can you tell me who he

 7   is?

 8         A.     His webmaster, E-mail address is

 9   Macki@2600.com.     His first name is Micah.   And

10   that's pretty much -- I have met him a couple of

11   times and he is from California.      That's the extent

12   of my knowledge.

13         Q.     That's where he is now.

14         A.     Yes.

15         Q.     Do you have an address?

16         A.     I don't have an address.     I have an

17   E-mail address.

18         Q.     And what is it?

19         A.     Macki@2600.com.

20                MR. GOLD:   Mr. Garbus, I would like to

21         take Macki's deposition, probably for about

22         two hours or an hour and a half.

23                MR. GARBUS:   I would have to contact

24         him.

25                MR. GOLD:   Would you?
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 1                        Goldstein

 2              MR. GARBUS:    I will try.

 3              MR. GOLD:     And let me know if -- can

 4        you tell us how to make arrangements, or

 5        perhaps make arrangements for us?    One of

 6        the times that we're all going to be out

 7        there anyway.

 8              MR. GARBUS:    I don't know how we'd

 9        work out those times, but yes, if I can.

10              MR. GOLD:    It's going to be a very

11        fast thing.   If we fit it at the very

12        beginning.

13              MR. GARBUS:    I am not clear about one

14        thing.   Maybe you can help me.

15              MR. GOLD:    I would rather you not do.

16        After the deposition is over, we're off the

17        record, then I would be happy to discuss

18        with you anything you want to discuss.

19        Q.    Did you read this before it was

20   published on your web site?

21        A.    Yes.

22        Q.    Did you believe it was true?

23        A.    I believed it was -- yeah.

24        Q.    Which prosecutions does this refer to

25   from the clause "A recent look at prosecutions"?
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 1                       Goldstein

 2           A.   This is probably referring to various

 3   cases that have been in the hacker community,

 4   namely, the Kevin Metnick case, the Bernie S case.

 5   This is over the course of years.      That's what is

 6   meant by recent.

 7           Q.   Recent is how many years?

 8           A.   Several.    Throughout the nineties.    I

 9   consider that to be recent.     And --

10        Q.      What new laws are referred to?

11        A.      Laws like digital telephony, the DMCA,

12   Electronic Communications Privacy Act.        Laws such

13   as that.

14        Q.      Does this statement indicate 2600's view

15   that posting or linking to DeCSS was as a matter of

16   law illegal?

17                MR. GARBUS:    I object to it.    The

18        sentence speaks for itself.

19        A.      I'm sorry.    Can you ask that one more

20   time?

21           Q.   Of course.

22                MR. GOLD:    Would you read that back to

23        the witness.

24                (A portion of the record was read.)

25        A.      No, absolutely not.   We never thought it
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 1                        Goldstein

 2   was illegal.

 3           Q.   Do the two sentences you just read mean

 4   that before you were involved in the lawsuit you

 5   knew it was inappropriate to post DeCSS?

 6           A.   No.

 7                MR. GARBUS:   Objection.

 8           A.   That's not what I said.

 9           Q.   Does the sentence, "A recent look at

10   prosecutions and new laws seems to pave the way for

11   just this sort of thing," mean that these

12   prosecutions and the decisions in them and the new

13   laws make it illegal to post DeCSS?

14                MR. GARBUS:   I will object to the

15        witness interpreting sentences.    The

16        sentences say what they say.

17        A.      I don't see it that way.

18        Q.      What way do you see it?

19        A.      Could you read back the question?

20        Q.      Certainly.

21                (A portion of the record was read.)

22        A.      Basically I am trying to interpret what

23   the sentence is communicating in terms of this

24   case.

25        Q.      Do you find that difficult to do?
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 1                       Goldstein

 2               MR. GARBUS:   Objection.

 3        A.     Basically what we were trying to say is

 4   that there have been increasing numbers of

 5   prosecutions in recent months, recent years, and

 6   that something that was not considered to be at all

 7   even questionably illegal could all of a sudden be

 8   brought into court and people could wind up being

 9   dragged through the legal system.

10               And what we had seen over many years

11   was, or recent years anyway, was people who just

12   got tired of the whole system who were dragged

13   through everything and were forced to give up

14   without ever having proven the case, having had the

15   case proven against them.   So it's hard for me to

16   recapture the mood that was around when this

17   article was written because it was back in

18   December.

19        Q.     I didn't ask you for the mood.    I asked

20   you for what it says.

21        A.     You have to sort of get into the mood to

22   see what the words are communicating and saying.

23        Q.     I don't find that to be true when I read

24   The New York Times.

25               MR. GARBUS:   I object to that.
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 1                       Goldstein

 2        Q.      Do you find that difficulty?

 3        A.      Well, this is an opinion piece.   This is

 4   different.

 5        Q.      When you're reading the editorial pages

 6   of the The New York Times, do you find that not

 7   knowing the mood of editorial writer?

 8                MR GARBUS:    Objection.

 9        A.      I think if you went back to, say, 1920

10   or something you might have some difficulty knowing

11   exactly what the person was talking about.     We have

12   seen a lot changes over the months, so I am trying

13   to gauge exactly what was written and by who.

14                MR. GARBUS:    I object to this

15        colloquy.

16        Q.      Could you read the last sentence of the

17   same paragraph, sir?

18        A.      "But all of the scare tactics in the

19   world will never erase the human need for knowledge

20   and the instinctive desire to figure out things,

21   regardless of whether or not we're, quote, supposed

22   to, end quote."

23        Q.      What do the words "supposed to" mean in

24   that sentence?

25        A.      I believe that's a reference to
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 1                         Goldstein

 2   knowledge being regulated.     In other words, people

 3   being told that asking certain questions is wrong,

 4   pursuing certain -- certain ways of figuring things

 5   out is wrong.     And I believe at that time we had

 6   been hearing a lot of talk along those lines, that

 7   it would be one day illegal to do -- to even think

 8   in certain ways.     So I think that's what this is

 9   based on.

10        Q.     Does the expression "regardless of

11   whether or not we're 'supposed to'" include the

12   concept of whether or not what we do is illegal?

13               MR. GARBUS:    Objection.   The sentence

14        speaks for itself.

15        A.     Could you read back the question.     I

16   want to make sure I answer it right.

17        Q.     Sure.

18               (A portion of the record was read.)

19        A.     I believe most definitely we did not

20   think anything that we were doing was illegal.

21        Q.     I didn't ask you that.      I asked you if

22   the words "regardless of whether or not we're

23   'supposed to'" includes the concept regardless of

24   whether or not these things are legal.

25        A.     No.
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 1                       Goldstein

 2          Q.   It does not.

 3               MR. GARBUS:      I object to it.

 4          A.   Not in my understanding, no.

 5          Q.   Well, did you understand at the time

 6   this article was written that a citizen in this

 7   country was expected to and supposed to follow the

 8   law?

 9          A.   Yes.

10          Q.   Do you recall whether or not you ever

11   wrote and published on your web site the statement

12   that big companies manipulate the courts in this

13   country?

14          A.   I need to see a particular quote.

15          Q.   You don't remember whether or not you

16   ever said that?

17          A.   Specifically in those words?

18          Q.   In words or in substance.

19          A.   It's possible.     That's the best I can

20   do.    It's possible.   I don't know specifically if I

21   ever said that.

22               MR. GARBUS:    Mr. Gold, can I suggest

23          you show it to him?

24               MR. GOLD:    No.   Can I suggest that you

25          not interrupt?
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 1                       Goldstein

 2              I have to take a break, but I am going

 3        to turn this over to my co-counsel for some

 4        questions.

 5              THE VIDEOGRAPHER:     The time is 3:05 p.m.

 6        We're going off the record.

 7              (A recess was taken.)

 8              THE VIDEOGRAPHER:    The time is 3:14 p.m.

 9        We're back on the record.

10   EXAMINATION BY

11   MR. LITVACK:

12        Q.    Good afternoon, Mr. Goldstein.      My name

13   the Mark Litvack.   I am an attorney for the

14   plaintiffs in this action.

15              Your counsel indicated he handed us a

16   stack of documents this afternoon purporting to be

17   your tax returns.   I have handed to you the entire

18   stack.

19              Can you just tell us what it is?

20        A.    These are tax returns, both corporate

21   and individual, going back to 1995.

22        Q.    I note they are not signed.

23        A.    These are copies.

24        Q.    Are they exact copies of what was

25   actually filed with the Internal Revenue Service?
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 1                        Goldstein

 2        A.     These are copies that my accountant

 3   supplied, so they are as exact as was possible to

 4   get as far as I know.

 5        Q.     So as far as you know, there is no

 6   difference between this set and the set filed

 7   absent your signature.

 8        A.     Right.

 9        Q.     Is there something in there that you

10   know is not true and you later had to go file

11   either a change or you looked at it later and said,

12   Jeez, I should have changed that, or to the best of

13   your knowledge is everything in there true and

14   accurate?

15        A.     Everything in there is true and

16   accurate.

17               MR. GARBUS:    Mr. Litvack, if there were

18        any supplemental returns --

19               THE WITNESS:   Yes, they would be in

20        there too.

21               MR GARBUS:    -- I will check with the

22        accountant and get it to you.

23               MR. LITVACK:   I am not suggesting

24        there is.    Sometimes people say, jeez, I

25        meant --
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 1                          Goldstein

 2                  THE WITNESS:   Right.

 3                  MR. LITVACK:   That's it with that

 4          document.

 5          Q.      In the last document --

 6                  MR. GARBUS:    Do you want to mark it?

 7                  MR. LITVACK:   No, no need.

 8          Q.      -- you commented in this piece, it was

 9   commented that "it's one more example of a powerful

10   corporate entity trying to intimidate a bunch of

11   individuals through lawyers, guns and money."

12                  You chuckle now as I read that to you.

13   What's the chuckle?

14          A.      Well, I am not sure if those are my

15   words.      They're kind of -- I am not sure what the

16   word is.     Strident maybe?

17                  I can understand the -- I can understand

18   some of the emotion behind it, but I don't think

19   that's something that I would say in quite that

20   way.

21          Q.      It's fair to say that that's not fair

22   and accurate totally as regards to this case.

23          A.      It's an opinion.    It's an opinion piece.

24          Q.      Well, the "guns" part is pure hyperbole,

25   is it not?
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 1                          Goldstein

 2           A.   I think that's a reference to law

 3   enforcement or, you know, whatever else the writer

 4   may have been trying to convey.

 5           Q.   You talked earlier about some of the

 6   sites being juvenile in nature.    Do you remember

 7   that conversation?

 8           A.   Today you mean?

 9           Q.   Today.

10        A.      Yes.

11        Q.      It's a quote from your declaration.

12           A.   OK, yes, my declaration too.

13        Q.      And you said, as I understand it, they

14   are juvenile in nature, I guess the example you

15   gave, the language they use.

16        A.      Yes.

17        Q.      Is that fair?

18        A.      Well, the language they use, yeah, the

19   way they look.

20        Q.      The example that was read to you earlier

21   using foul language --

22        A.      Yes, this here.

23        Q.      -- Exhibit Number 6, is an example of

24   that.

25           A.   Uh-huh.
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 1                        Goldstein

 2        Q.     Is it fair to say though, are you

 3   telling us that you yourself do not use that sort

 4   of language in regards to the Internet or

 5   communicating ideas?

 6        A.     I don't think so.

 7        Q.     Never.   Never have.

 8        A.     I can't -- I don't think even twenty

 9   years ago I would have used that kind of language.

10        Q.     And specifically the kind of language

11   here is what word is it?

12        A.     It's not so much the words.    It's

13   just -- just the tone, you know, all caps and

14   basically targeting people and labeling people.

15   It's not the kind of thing I do.

16        Q.     The foul language, is that something you

17   would do?

18        A.     Again, language is something I think is

19   open to interpretation.    This I consider to be foul

20   language.   Does that mean every time those

21   particular words are used it's foul?      We can have a

22   discussion about that.    I'm not sure.

23               You might be able to point to me using a

24   word in some other context, and I don't think it

25   would have the same connotation as it does here.
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 1                      Goldstein

 2        Q.    Is there any words there that you

 3   consider to be foul in and of themselves that you

 4   would not use when it comes to the Internet?

 5              MR. GARBUS:    I will object to this.   I

 6        don't see the relevancy as to this case.      If

 7        you have something you want to show to him,

 8        show it to him.

 9        A.    There are no words that I restrict

10   myself from using if that's what you're asking.

11        Q.    Do you own the domain name 2600.com?

12        A.    Yes.

13        Q.    Is that the only domain name you have

14   owned?

15        A.    No.

16        Q.    What other domain names have you owned?

17        A.    There are a bunch.    There's various

18   other interpretations of that or iterations of

19   that -- 2600.Net, 2600.org.    And there are other --

20   I wish I had a list in front of me.    I am trying to

21   think of everything that we have.     There are some

22   humorous sites that we have put up.    A recent one

23   concerning "Horizon."    We basically put up a site

24   called horizonreallysucks.com.    It's probably one

25   of the ones you're thinking of.   Just as kind of a
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 2   forum for people to criticize a company.      I mean,

 3   there are others.      Is there a particular one you're

 4   interested in?

 5        Q.      Did you put up any in regards

 6   specifically to this litigation?

 7        A.      For this litigation?   I honestly don't

 8   think so.

 9        Q.      You're sure about that.

10                MR. GARBUS:    I object.   He said he

11        honestly doesn't think so.

12        A.      I'm honestly not sure.     I mean, if you

13   know of one, please tell me and I'll --

14        Q.      Have you ever owned a domain name with

15   the name "morons" in it?

16        A.      Ah, OK.    Now it's coming back to me.    We

17   had -- we have a domain name with a foul word in it

18   followed by the word "morons."

19        Q.      Do you want to tell us for the record

20   what the domain name was?

21        A.      Yes, it's fuckingmorons.com, and it was

22   someone's -- I mean, someone at 2600, I forget

23   exactly who.   It was really just -- I thought it

24   was funny.   I thought it was just a joke.     It would

25   be pointing to MPAA.      But that's -- I think it's
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 2   actually been pointed at different sites, not just

 3   MPAA.      It's been pointed -- it was pointed at us

 4   for a while.     It's been pointed at -- the beauty of

 5   the Net is you can point sites wherever you want to

 6   point them.     It was just an example of humor.

 7                 So I don't -- I don't see that as

 8   something necessarily immature, along that level.

 9   Immature to a degree perhaps, but I don't think

10   anything other than just, you know, the kind of

11   joke you would see on late night TV or something

12   like that, cable.

13         Q.      Was there any other purpose for creating

14   that domain name?

15         A.      We didn't publicize it very much.    Just

16   told a few friends I think.

17         Q.      Do you know if you got any hits on it?

18         A.      No, we don't keep that kind of

19   information.     Actually, you would know, because I

20   think you have referral logs that would tell you if

21   people came in through there.

22         Q.      Any other purpose though for creating

23   it?

24         A.      Basically the real reason -- it was not

25   created with the MPAA in mind, I should point that
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 2   out.   It was created because registrars -- this is

 3   really where it goes back to, registrars.        There

 4   used to be simply one in this country, Network

 5   Solutions.    Late last year, or actually over the

 6   summer last year, it was deregulated.     More

 7   registrars came into existence.    And all of a

 8   sudden the rules that NSI had lived by for many,

 9   many years, which restricted all use of any

10   four-letter word, all of a sudden those rules no

11   longer existed.

12                For a period of time, I think about two

13   days actually, every single iteration of a site

14   with one of those words was going fast.     And it was

15   just -- this was well before any of this started to

16   happen.     We just thought it would be fun to

17   register some of those and either use them as we

18   see fit in the future or give them away to people

19   to do whatever they want.    They were going to go

20   anyway, so we figured we might as well get them and

21   play around with them.     That's an example of one

22   the -- I guess that's about as childish as we get.

23          Q.    Was that telling the story or reporting

24   the story as you see your job?

25          A.    Well, we didn't report that story.
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 2   That's just something we did behind the scenes.

 3           Q.   You said that 2600 is a journalistic

 4   adventure that reports and tells the story.     Is

 5   that fair?

 6           A.   Yes.

 7           Q.   Is your using that domain name to, I

 8   guess what you said, poke fun at the MPAA part of

 9   telling the story?

10        A.      That's not part are our journalistic --

11        Q.      So 2600 --

12        A.      -- duties.

13        Q.      -- has other things to do other than

14   being journalists then.    I guess that's now what

15   you're telling us.

16                MR. GARBUS:   I object to the form of

17        the question.    That's not what he's telling

18        you at all.

19        A.      This is not something that is done as

20   2600.    This is something that is done as

21   individuals just goofing around.    It's just a joke.

22        Q.      Who owns the domain name?

23        A.      I do.

24        Q.      Who is the owner?   Tell me the name of

25   the owner of the domain name.
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 2        A.      Again, I would have to look at the

 3   actual sites because there are a lot of -- a lot of

 4   domain names I own.    I believe it's Emmanuel

 5   Goldstein.   It could be slightly different, but

 6   that's what I understand it to be.

 7        Q.      Do you own any other domain names with

 8   four-letter words in it?

 9        A.      There are a few.    I don't remember

10   specifically which ones.    We just grabbed a bunch,

11   you know, just the fun of it.

12        Q.      Why don't you tell us what else you own?

13        A.      Like I said, if you show me a list I can

14   confirm it or deny it, but this is not something

15   that's paramount in my mind.      In fact, a lot of

16   these sites I've forgotten about ever since we

17   grabbed a few of them.

18        Q.      And the only one you remember is this

19   one now.

20        A.      Because you brought it up, yes.

21        Q.      Are there any others you use as you sit

22   and recall in regards to this litigation?

23        A.      In regards to this litigation?    That's

24   the only one I can think of that points to MPAA or

25   ever did point to MPAA.    To be honest, I don't even
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 2   know if it's pointing there now.      It may have been

 3   pointing there for a while and then pointing

 4   somewhere else.    I don't even remember.    I've had

 5   far more important things to worry about.

 6           Q.   Who linked it to the MPAA site?

 7           A.   I don't recall.

 8           Q.   Did you do it?

 9           A.   I don't recall if I did or not.

10        Q.      Well, if you didn't do it, who else

11   could have done it?

12        A.      Anybody who was on our site and has

13   route access and is able to change the

14   configuration files that would point.

15        Q.      See, you told me you own the domain

16   name.

17        A.      I own the domain name.

18        Q.      So who else has authority to use your

19   domain name?

20        A.      Anyone who has system administrative

21   privileges on my system, on 2600.com, is capable of

22   going into the files that designate where that site

23   points to and pointing it someplace else.      It's

24   very simple.

25        Q.      Who else is that?
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 2        A.    Our assistant administrator.     I believe

 3   our webmaster has that access as well.    Our office

 4   manager has that access.    It's a very simple thing.

 5   It's nothing complex.

 6        Q.    Anyone else?

 7        A.    Not that I know of.

 8        Q.    As you sit here right now you don't know

 9   who actually created the link.

10        A.    I can't swear to who created the link.

11   I am not saying I didn't do it.   I don't remember.

12   This is not a major issue for me.    It's a simple

13   joke, parody.    I don't see its relevance at all.

14        Q.    As you sit here right now, there is no

15   other link that you or anyone else at 2600 you know

16   created that would fall into this similar

17   characterization of a link.

18        A.    Could you rephrase that a little bit?

19              MR. GARBUS:    Object to the form of the

20        question.

21        Q.    I am just trying to make sure.    You

22   said, as I understand it, you don't remember right

23   now whether you did this or someone else on the

24   2600 staff did it.

25        A.    Right.
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 2           Q.    I just want to make sure, is there any

 3   other domain name that 2600 or you own that you

 4   utilized in a similar way to this one?

 5                 MR. GARBUS:   Object to the word

 6           "similar."   I am not sure what you mean.

 7           Q.    Do you understand what I mean by that?

 8   In any way mentioning this litigation or impacted

 9   by this litigation.

10        A.      Specifically for this litigation, I

11   don't recall of any, no.

12        Q.       It's fair to say the only reason you did

13   this and on this domain name was because of this

14   litigation.

15        A.      As I said, the domain name was

16   registered well in advance of this litigation.

17   That was not the reason for registering the domain

18   name.

19        Q.      Your use of tying it to the MPAA, isn't

20   it fair to say that was only because of this

21   litigation?

22        A.      It was related, I am sure, yes, because

23   people felt a certain way about that.

24        Q.      I said "only" and you said "related."

25   So is there any other reason you did this other
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 2   than this litigation?

 3           A.   I'm sure there are other reasons to

 4   describe the MPAA in certain ways if people think

 5   about it enough and discuss it enough.    I don't

 6   know.     I would imagine it's related to the ongoing

 7   hostilities.    But again, you know, I can't crawl

 8   back into my head and figure out exactly when this

 9   was done, who did it, what the thinking was at the

10   time.    It's something that I have not thought about

11   at all, and this is the first I've even thought

12   about it in it must be months.     So I don't know who

13   posted it, when they posted it, what the exact

14   thinking was when it was posted or, rather, linked.

15        Q.      You said numerous times that the reason

16   you kept up the link is it's part of the story.

17        A.      Which links are we talking about now?

18        Q.      The links to DeCSS.   Switching topics.

19                Is that fair?

20        A.      Yes.

21        Q.      And that you view it as your job as a

22   journalist to basically report that story.

23                MR. GARBUS:   I am going to object.   I

24        think the practice we have had is that if a

25        second lawyer comes in he is entirely
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 2        entitled to go into new areas.      What you

 3        seem to be doing now is going over areas

 4        that Mr. Gold went over.      And that we have

 5        agreed no one should do.

 6                 MR. LITVACK:   I will not do.

 7        Q.       Isn't it correct that you and 2600 asked

 8   people to post DeCSS so that you could link to it?

 9        A.       We told people how they could support,

10   how they could show their support for this

11   information, for talking about DeCSS, reverse

12   engineering, encryption technology.      All the things

13   that were being restricted we explained how we saw

14   this as a danger and how people could show support

15   if they chose to.     We also apprised them of the

16   risks that went with that.

17        Q.    And there are a lot of ways you

18   indicated to them they could show support; isn't

19   that right?

20        A.    There are many ways, yes.

21              MR. GARBUS:       I will object to it.

22        This is exactly what Mr. Gold went over.

23        Q.    Now I am asking you specifically, which

24   Mr. Gold did not ask.    Didn't you ask people to

25   post it so that you could link to it?
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 1                         Goldstein

 2        A.      Yes, we had a form where people could

 3   submit a site.      If they wanted their site added to

 4   the list, all they had to was fill it out and then

 5   send it to us.      But that was their choice.

 6                MR. GARBUS:    Object.   This has already

 7        been gone over through with Mr. Gold.

 8                MR. LITVACK:   Let's mark this next

 9        document whatever number we're up to.

10                (Plaintiffs' Exhibit 8, 3-page

11        document, 2600: The Hacker Quarterly,

12        entitled "Call to Action," marked for

13        identification, as of this date.)

14        Q.      Have you ever seen this?     Exhibit 8

15   appears to be a printout from your web site; is

16   that fair?

17        A.      Yes.   This is one of our web pages.

18        Q.      And you have seen this before.

19        A.      Yes.

20        Q.      By the way, do you do anything to check

21   the veracity of what you post before you put it on?

22                MR. GARBUS:    I will object to that.

23        The witness testified to that yesterday at

24        great length.     I am going to object to going

25        over the same material again.
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 2         Q.      Let me ask you this.   Did you do

 3   anything to check the veracity of this particular

 4   page?

 5         A.      I take responsibility for all pages on

 6   our site.     Absolutely.

 7         Q.      I think there was some testimony earlier

 8   you weren't sure whether you had written something

 9   particular or not.     I don't know if you recall

10   whether you yourself had written this page.

11         A.     These two paragraphs here?    Is that what

12   you're referring to?

13         Q.     Those two paragraphs I guess would be

14   it.   I am not sure if the summary and the news also

15   would fall within.

16           A.    OK.   I believe I wrote these two

17   paragraphs.    They do sound like my style.

18         Q.     Is it your opinion that the "call to

19   action," and that's a quote from the exhibit, is

20   part of telling the story?

21         A.     By having people hand out fliers, by

22   having people tell others about what's going on,

23   that's part of it.     It's part of getting the word

24   out, yes.

25         Q.     And the word you're attempting to get
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 2   out via this is what?

 3        A.      That this -- basically that DeCSS is

 4   something that is an interesting story.        It has to

 5   do with encryption and reverse engineering and

 6   technological developments and education.

 7                We outlined what we felt was wrong with

 8   the case against us and told as many people as we

 9   could, as I believe is our right.

10        Q.      And you see that as part of reporting

11   the story?

12        A.      I see this as part of reporting the

13   story, yes, getting the word out.      It might not be

14   a traditional way that the mainstream media does

15   it, but that's how we do it.

16        Q.      In your declaration you made the comment

17   "While I don't practice or condone breaking into

18   computer systems, experience has shown us that such

19   acts are an inevitable product of curiosity

20   combined with new technology."

21        A.      What item number?

22                MR. GARBUS:    Which paragraph?

23                MR. LITVACK:   13.   Page 4.

24        A.      OK, I'm there.

25        Q.      Mr. Gold did ask you about this.
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 1                        Goldstein

 2           A.   Yes.

 3                MR. GARBUS:    Mr. Gold asked about the

 4           entire paragraph; is that right?

 5                MR. LITVACK:   Correct.     So I am not

 6           going to repeat his question.

 7           Q.   Isn't it fair to say that what the 2600

 8   quarterly does do is condone breaking into computer

 9   systems --

10        A.      It does not.

11        Q.      Let me finish.    -- and tell people how

12   to go about violating the law?

13        A.      Absolutely not.

14                MR. GARBUS:    Objection.

15        Q.      Are there not articles, numerous

16   articles, in your magazine that specifically do

17   that?

18        A.      There are articles submitted to us by

19   people that give us information on various

20   operating systems on how things work.       But it has

21   always been the editorial stance of our magazine

22   that breaking into computer systems is

23   irresponsible, it's wrong.

24                 But what we do is we recognize that it

25   is also something that is happening and we want
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 1                        Goldstein

 2   people to act responsibly.

 3           Q.   Don't you tell people how to steal as

 4   well in these magazines?

 5           A.   I don't think we have ever told people

 6   how to steal.

 7                MR. GARBUS:   I will object to it.

 8           Unless you show the witness the quote.

 9           Q.   How about using telephones without

10   paying for them?

11        A.      We described how telephones work.

12        Q.      And you tell people how to use

13   telephones without paying for them.

14        A.      We tell people how the system works and

15   how -- if there are security weaknesses in it, we

16   describe the security weaknesses.     That's the

17   nature of information.     We describe how it works.

18   We do not say "go out and do this and break the

19   law."    We have never said that, and you can trace

20   that back to our first issue in 1984.

21        Q.      Do you tell people how to create false

22   legal documents as well?

23        A.      False legal documents?

24        Q.      Yes.

25        A.      Again, we tell people how systems work.
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 1                        Goldstein

 2        Q.       You don't recall specifically telling

 3   people how to create false --

 4        A.       I don't recall ever telling someone how

 5   to do that.    There might be an article that talks

 6   about how a particular system works.

 7        Q.       How about stealing cellular phone

 8   systems?   Do you tell people how to do that in the

 9   magazine as well?

10        A.      Stealing systems?

11        Q.      Phone time, on cellular phone times.

12        A.      Do we tell people how to steal cellular

13   phone time?

14        Q.      Yes.

15        A.      Again, we describe how systems work and

16   we will describe how the cellular phone system

17   works.    Now, if somebody uses that information in a

18   good way, that's not our concern.     If somebody uses

19   that information in a bad way, that's not our

20   concern.   We provide the information.    That's what

21   we do.

22        Q.      Don't you teach people how to make card

23   phones in this magazine, and the only purpose of

24   those is to steal phone time?

25        A.      No.
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 2        Q.     Are you sure?

 3        A.     Well --

 4        Q.     Remember, you're under oath here.   So

 5   we're going to go through these articles?

 6               MR. GARBUS:    If you have an article to

 7        show him, show him the article.

 8               MR. LITVACK:    He just said no.

 9        A.     I said no, and I'll continue to say

10   no, because interpretation of the intent of

11   knowledge is -- I don't think any of us have the

12   ability or even the right to say that.

13        Q.     Sir, didn't you specifically print an

14   article for example on how to create a false ID

15   about your age?

16        A.     Someone may have written an article

17   about how that is done.

18        Q.     Doesn't it specifically say in there the

19   purpose of it is so you can drink when you're

20   underage?

21        A.     That might be that person's

22   interpretation.   That is not our interpretation.

23        Q.     Sir, you printed it in your magazine.

24   You said you're responsible for every word in here.

25        A.     I'm responsible for what we write as
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 2   editorials, as replies to letters, as editorial

 3   stances in the magazine.

 4           Q.   Sir, do you believe that --

 5           A.   We do not agree with every article that

 6   is submitted to our magazine, no.       If we did, we

 7   would cease being what we are.

 8           Q.   What are you?

 9           A.   We're a journal of various bits of

10   information that are sent to us from around the

11   world describing how systems work.

12        Q.      And part of that includes creating false

13   IDs so underage people can drink.

14                MR. GARBUS:   Objection.

15        A.      I would like to see the article you're

16   referring to so I can answer it intelligently.

17                MR. GARBUS:   Would you please lower

18        your voice, Mr. Litvack.    Stop yelling at

19        the witness

20        Q.      Let me read you an article entitled

21   "Spoofing Cellular Service."     This is from autumn

22   1996.

23                First, why don't you tell me, what is

24   spoofing cellular service?

25        A.      In the context of that article I believe
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 2   it's creating a false phone number or a phone

 3   number on a different line or -- it can be

 4   interpreted in many ways.     It can be an extension

 5   phone on a cellular system.      It can be a fake

 6   number.     I would have to see the article to know

 7   exactly how it's meant in that particular case.

 8        Q.      You don't remember this article.

 9        A.      I would have to look at it to remember.

10   I can't remember every word that's written in the

11   magazine.    That's an old issue taken from several

12   years ago.

13        Q.      Until you read it you can't tell me if

14   the only purpose of this article is to tell

15   somebody how to get cellular service without paying

16   for it.

17                MR. GARBUS:    I will object to it.

18        He's already said unless he reads it he

19        can't tell you what is in there.      You have

20        asked him that.

21                MR. LITVACK:   You will stipulate to

22        that?

23                MR. GARBUS:    I will stipulate that he

24        has to read the article before he can answer

25        questions about it.
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 2         Q.      So you can't answer that without reading

 3   it.

 4         A.      I can't answer accurately without

 5   looking at --

 6         Q.      Fine, here, read the article.   Take your

 7   time (handing).

 8         A.      OK.

 9         Q.      For the record, as your counsel reads

10   it, do you know when these were given to the

11   plaintiffs in this case, these magazines?

12         A.   Do I know when they were given?

13         Q.   Yes.

14         A.   I believe today.

15         Q.   Doesn't that article tell you how to get

16   cellular phone service without paying for it?

17         A.   It tells you many things.    Yes, it

18   describes how that can be done.    It also describes

19   social engineering.    It describes security

20   weaknesses.

21              I have no doubt after that article

22   appeared that those security holes were fixed.     I

23   have gotten many times at conferences executives of

24   companies who walked up to me and said that we

25   provide a valuable service for them.    And I have
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 2   also been criticized in the hacker community for

 3   doing just that, for giving away the secrets.    So

 4   it's a two-edged sword.

 5         Q.    So it's your testimony here you were

 6   attempting to do a public service for the cellular

 7   phone systems?

 8         A.    No, my testimony --

 9               MR. GARBUS:   I will object to it.

10         That was not the testimony.

11         A.    My testimony is that we print

12   information.   People use that information in

13   different ways.   It's very simple.

14         Q.    Are there legal ways for people to use

15   that system to get phone service without paying for

16   it?

17         A.    I wouldn't know.

18         Q.    Let me show you the next article, "Tips

19   on Generating Fake ID."

20               "So you want to get drunk this weekend

21   or buy some cigarettes?   It is sometimes easier to

22   buy marijuana and take advantage of the black

23   market brought on by the war on drugs or follow on

24   and learn how to kill your brain cells with

25   alcohol."
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 2                Was that done as part of a public

 3   service message?

 4           A.   That was an article somebody submitted.

 5   As I said, I don't agree with every view expressed.

 6   It can be seen as parody.    It can be seen as

 7   nonsensical humor.     But it's also seen as educating

 8   people as to how something is done.

 9           Q.   Parody on how to make a false ID?

10        A.      No, parody on the opening paragraph that

11   you just read, as if that's the only thing that a

12   fake ID is good for, going out and getting drunk.

13   I mean, who knows how you would interpret that?

14        Q.      Sir, let me show you an article from

15   volume 15, number 2.    Maybe you can read the read

16   better than I can.

17           A.   It's on the bottom of the page.   Well,

18   the next page definitely.

19        Q.      Maybe you can just tell me what it's

20   from.    Oh, summer of '98 on the bottom there.

21                That tells you how to make a false ID.

22   Is that fair?

23                MR. GARBUS:   I will object to it.   The

24        article tells you what it tells you.

25        Whether it's fair or not is irrelevant.      The
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 2           articles says what it says.

 3           Q.   Mr. Garbus is absolutely right with his

 4   objection.    Can you read to me the title?

 5           A.   "Tips on Generating Fake ID."

 6           Q.   Can you read to me all of the commentary

 7   or editorial comment that 2600 added on this?

 8           A.   We don't necessarily add editorial

 9   comments into other people's articles.      People

10   submit articles to us.      We print the articles and

11   people learn from the articles.       They either learn

12   how to secure their systems or they learn how the

13   systems can be abused.      They can do good things,

14   they can do bad things.     We exist to provide

15   information.

16        Q.      What system is it you're teaching people

17   how to hack in this article?

18        A.      I didn't say we were teaching people to

19   hack.

20                MR. GARBUS:    I will object to it.

21        That wasn't what he said.

22                MR. LITVACK:   I don't have to just

23        adopt his answer, Mr. Garbus.

24                MR. GARBUS:    Of course you don't have

25        to adopt his answer.     But you can't restate
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 2           what he said in the wrong way.

 3                 MR. LITVACK:   I get to ask the

 4           questions, OK?

 5           Q.    Are you attempting to teach somebody how

 6   to break into a system by that article?

 7           A.    I have no interest in people getting

 8   fake ID.     It's a method that is used.   It's

 9   educational.    It's a report on holes that exist in

10   various systems.     That's as simple as I can make

11   it.

12         Q.      Who made the decision to print that

13   article in that magazine?

14         A.      That would be me.   As the editor.

15         Q.      In the end here there's a thing that

16   says "how to spot fake ID and not be fooled," and

17   it tells me what to say when they are handing over

18   the fake ID.    And the purpose of that is what?

19         A.      Again, that's method, that's how things

20   work.    This is information that would exist even if

21   it was not in our magazine, except it would be less

22   well-known and less people would understand it.

23         Q.      So you're trying to explain to more

24   people how one could create a false ID if they want

25   to?
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 2        A.      We try not to impose our moral judgments

 3   on information.

 4        Q.      You also then tell people how to I guess

 5   break into specific companies' computer programs in

 6   your magazine?

 7        A.      I need a specific reference.

 8        Q.      Have you ever done that?

 9        A.      There are all kinds of articles in the

10   magazines about all kinds of computer systems.

11        Q.      Are you really going to sit here and

12   tell me --

13                MR. GARBUS:   I would object to the

14        form of the question as to what he is really

15        going to sit here and tell you.      I object to

16        the form of the question.

17        Q.      Is it your sworn testimony right now

18   that you do not ever remember publishing an article

19   telling people how to break into a specific

20   company's computer program?

21                MR. GARBUS:   I'll object.

22        A.      We print articles about computer systems

23   of specific companies and people can learn all

24   kinds of things from that.

25                MR. GARBUS:   If you want to show him
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 2        an article, show him an article.

 3               MR. LITVACK:   I don't need to show him

 4        an article.     He knows that they publish them

 5        on specific companies.      Every one of these

 6        magazines has articles on specific companies

 7        pretty much.

 8               MR. GARBUS:    I object to that.

 9        Q.     Isn't that fair?

10        A.     And those specific companies read the

11   articles.

12        Q.     So I don't need to show you any

13   articles.

14               MR. GARBUS:    Mr. Litvack, this is a

15        deposition.    This is not an argument.

16               MR. LITVACK:   You objected, said you

17        need to show him the magazine.      He knows he

18        doesn't need the magazine.     He knows it's

19        the regular magazine to print these

20        articles.

21               If you have an objection to form, make

22        it.

23               MR GARBUS:    I object to the form of

24        the question.

25               MR. LITVACK:   Good.    There's not even
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 2        a question pending.

 3        A.      If you're looking at a specific article,

 4   that's the only reason I was curious which article

 5   it was.

 6        Q.      Routinely, it's things you publish;

 7   isn't that fair?

 8        A.      That's the nature of our magazine, is

 9   how systems work.

10        Q.      Fine.   "Fun at COSCO," do you recall

11   this article?

12        A.      I am thinking.   Yes.

13        Q.      Summer of '99?

14        A.      I don't recall specifically what is in

15   it, but I recall the article.    Yes.

16        Q.      I will show you the article.

17        A.      Thank you.

18                OK.

19        Q.      What is the "fun at COSCO"?

20        A.      It's -- you asked me to analyze the

21   title?    It's basically a statement.   People -- the

22   title first of all was part of the article.     Our

23   writers entitle their own articles.     So it is rare

24   that we come up with our own titles.

25                Again, it's basically a way of
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 2   describing how these systems work.      From this

 3   person's point of view, they consider that fun.

 4        Q.      What's fun?    Shopping?

 5        A.      Learning how the systems work, seeing

 6   how the phone systems at that particular store

 7   work.     And I am trying to see what else is in here.

 8        Q.      Isn't it using the computer system when

 9   you're not authorized to use it?

10        A.      Yeah, using is different than reading.

11        Q.      Is it?

12        A.      We have told people -- if you read our

13   letters and you see our replies to people that are

14   obviously intent on committing criminal acts, you

15   will see that we chastise them and tell them not to

16   do it.

17        Q.      You don't do it on --

18        A.      Because those are articles.   We don't

19   comment on articles.

20        Q.      This article even tells you what to say

21   when you get caught.

22        A.      Uh-huh.

23        Q.      Did you comment on it, like say, Gee,

24   don't do this?

25        A.       Well, if COSCO reads that article and
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 2   someone says that, I think they will know that they

 3   read the article too and they'll be prepared for

 4   it.

 5         Q.    So you sent COSCO a copy?

 6         A.    We don't send anybody a copy unless they

 7   ask for a copy.   But usually if your company's name

 8   is in there, you get a copy pretty fast.   They

 9   might even sell us at COSCO.

10         Q.    In this article when it described how to

11   use COSCO's system wrongfully and what to say when

12   caught, did you do anything to insure that people

13   didn't use the advice that you were handing out?

14         A.    Like I said, we did not --

15               MR. GARBUS:   I will object to the form

16         of the question.

17         A.    We do not impose our moral values on our

18   articles.   The articles are what they are.

19         Q.    Even if they encourage illegal acts?

20               MR. GARBUS:   I will object to the form

21         of the question.

22         A.    I don't believe the article only exists

23   to encourage illegal acts.   I think it is an

24   informational article.

25         Q.    What is a diverter, a telephone
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 2   diverter?

 3         A.      A diverter is actually a very old piece

 4   of phone -- phone equipment that I believe doctors

 5   and plumbers and other such people use after hours.

 6   I might be wrong on this, but I am pretty sure it

 7   is used.    So that when somebody calls the office

 8   and nobody is there, the call gets forwarded to the

 9   person's home.     It's kind of a mechanical version

10   of call forwarding.     It is rare to find these days

11   because call forwarding is so prevalent in the

12   phone companies.

13         Q.      Didn't you print an article on how to

14   use a phone diverter so that the person utilizing

15   it would not have to pay for the phone calls they

16   made and that somebody else would be charged for

17   it?

18         A.      Now, that's a very good point actually

19   because -- I think you're going back to an old

20   issue.     Phone diverters have become notoriously

21   insecure.     The reason for that is that when you

22   call the person's office and the call gets

23   forwarded to the person's home, that's done by

24   picking up the second phone line and making a phone

25   call and basically conferencing you in.
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 2                Now, what happens is, and this was

 3   discovered by hackers, when the person on the

 4   remote end hangs up, the other phone drops to a

 5   dial tone, meaning that call diverters are not the

 6   way to go.

 7                Now, I had the option of buying a call

 8   diverter, and it was because of the information

 9   that I had from articles like this that I realized

10   I would be crazy to do that, that people could make

11   phone calls off of my line.

12                And I think that's one of the reasons

13   why you don't see very many call diverters these

14   days, because people are aware of the risks.      If we

15   had not printed articles like this, I am sure there

16   would be a lot more people being ripped off these

17   days who weren't aware of the risks.

18        Q.      "Call diverters are a wonderful tool for

19   you to add to your freaking arsenal."      Is that

20   telling people be careful about using them?

21        A.      Are those our words?

22                MR. GARBUS:    Let me just make an

23        objection.

24                MR. LITVACK:   You can have an

25        objection to form of the question.
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 2               MR. GARBUS:    No, no, no.   Just so we

 3        can save a little time.

 4               If James Bond describes 17 different

 5        ways to kill somebody, do you think that

 6        James Bond's publisher or author is liable

 7        if it's a killing that ultimately occurs

 8        that way?

 9               MR. LITVACK:   Let me ask you this,

10        Mr. Garbus.     Do you really in good faith

11        believe that was an objection to form,

12        asking me a hypothetical?

13               MR. GARBUS:    Go ahead.

14        Q.     "Call diverters are a wonderful tool for

15   you to add to your freaking arsenal."

16        A.     I believe I answered that by asking you

17   if that's our writing or if that's the author's

18   writing.

19        Q.     I am reading from 2600.

20        A.     Right.   But is that an article that was

21   submitted to us or is that our writing from the

22   magazine?

23        Q.     Do you believe that is a way of warning

24   people about the danger of call diverters?

25        A.     If you read the article and you learn
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 1                      Goldstein

 2   what the article says, yes.    Absolutely.

 3        Q.    So that's the way you warn people, by

 4   language such as that.

 5              MR. GARBUS:     I object to the form.

 6        A.    That's the way we get the information.

 7        Q.    I'll quote again.    "After you've located

 8   a diverter, don't abuse it or the business is sure

 9   to pull the plug, leaving you to start all over

10   again."

11        A.    Again, that's the person who submitted


12   the article to us and that is the way they decided

13   to write the article.    We don't put our moral

14   values over people's articles.

15        Q.    Article entitled "Hacking the 3-Hole Pay

16   Phone."   Do you remember that article from --

17        A.    That's our new issue.

18        Q.    Newest issue.    So this one should -- in

19   fact, this should be after the lawsuit was filed.

20        A.    Yes.

21        Q.    Now, hacking the 3-hole pay phone,

22   explaining to you how to put slugs into a phone

23   system, to a pay phone.

24        A.    Yes.

25        Q.    And the purpose of that was to help the
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 2   phone company stop it?

 3        A.       You've picked a really dandy of an

 4   example there.     That actually is an article about

 5   phones that haven't existed in maybe the last 30

 6   years.    That's historical perspective there.

 7                 I think that goes to show that we do not

 8   print articles simply to show people how to defraud

 9   things.    That is an example of how things worked in

10   the past, how thing were abused in the past.       I

11   found it fascinating.

12        Q.      Do you believe there are no 3-hole pay

13   phones left in America?

14        A.      I would sure like to find one.   I'd love

15   to see one.

16        Q.      Is it your testimony that there are no

17   3-hole pay phones left in America?

18        A.      Except on movie sets perhaps.

19        Q.      In fact, you guys specialize in phones

20   because you put them on the back of every issue,

21   isn't that right?

22                MR. GARBUS:   I object to the form of

23        the question.     What do you mean by

24        specialize in phones?

25        A.      We put pictures of foreign pay phones
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 2   on the back of our magazine.    I am sure there are

 3   bad ways that information can be used.

 4          Q.    Do you put domestic as well or only

 5   foreign?

 6          A.    Only foreign.   We see enough domestic

 7   ones.

 8          Q.    I'm looking at an article from spring of

 9   last year, '99.    "Hacking a Sony Play Station."

10                Do you remember that article?

11          A.    I remember the article.   I've never had

12   a Sony Play Station myself, so I don't really

13   remember what it entails.

14          Q.    "If you're one of the" -- I'm reading

15   now.    Well, I'm going to give it to you.   So that

16   way you can see I'm accurate.    Can you read the

17   first paragraph out loud?

18          A.    "If you're one of the millions of Play

19   Station, in parentheses, PSX, owners out there,

20   good news.   You can, quote unquote, hack your PSX

21   with the addition of a, quote, Mod, M-o-d, or,

22   quote, Pic, P-i-c, chip enabling you to play backed

23   up, ahem, in parentheses, PSX games and more

24   importantly import games and at a fraction of the

25   cost."
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 2        Q.       Did you read this before you put in the

 3   magazine?

 4        A.       Yes.

 5        Q.       Did you wonder, did you ask the author

 6   what you meant by "ahem"?

 7        A.       We don't communicate with the authors

 8   and analyze every word that they say and ask them

 9   to rewrite things.      The articles speak for

10   themselves.    We print the information that the

11   people send us.      There's all kinds of things that

12   can be gained from an article about hacking a Sony

13   Play Station.    You can learn the vulnerabilities in

14   the system.    We can see what people are doing.

15               We don't usually print articles on

16   something like this.       This is widespread without us

17   doing this.    We have been criticized for putting

18   this in our magazine because it's really got

19   nothing to do with real computers.      These are

20   games.

21        Q.     Did you have an understanding as to what

22   they meant by "ahem"?

23        A.     Yes, I imagine it was a bit of sarcasm

24   on their part.       But I think that's also important

25   to the article so you know the tone of the person
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 2   writing it and what it is that they are really up

 3   to.

 4         Q.    Sarcasm on what issue?

 5         A.    On the issue of defining games that

 6   they had copied as backed up games instead of games

 7   that they copied from friends.

 8         Q.    Would that be a pirate copy?

 9         A.    It might be considered that.   I am not

10   really familiar with the Play Station world, if

11   they even consider it that serious a thing.    But

12   this is information -- this has been out years

13   before we even touched it.   I think it's important

14   for people to see what's being written about it.

15         Q.    I am going to show you an article from

16   fall of 1998.   Can you read for me the title of the

17   article?

18         A.    "Screwing with Movie Phone."

19         Q.    What does that article tell you how to

20   do?

21         A.    This article actually was interesting

22   because it -- I'm just remembering what it had to

23   say here.   This talked about how particular

24   transactions over the telephone could easily be

25   used in a fraudulent manner, in other words, this
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 2   involved people behind the counter, like fraud

 3   within Movie Phone.   Actually, within the theater,

 4   where from --

 5        Q.    Doesn't it tell you you can use Movie

 6   Phone if you're under age to buy an R-rated movie

 7   ticket and get in?

 8        A.    It tells of how there's no security

 9   whatsoever if you buy a ticket in this way and how

10   people have been turning a blind eye to this for

11   years.

12        Q.    Doesn't it also tell you how you can

13   order over Movie Phone, go see the move and then

14   get your money back as if you never saw the movie.

15        A.    And this has been going on for years.

16        Q.    But it tells you how to do that.

17        A.    I would bet that this stopped happening

18   shortly after we printed the article.

19        Q.    Did you have an opinion as to whether

20   that was a fair use of your movie ticket or not?

21        A.    I don't think my opinion is relevant to

22   the articles that get printed.   The articles do not

23   reflect my opinion.

24        Q.    Do you read them before they --

25        A.    I read them, but the articles I print do
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 2   not all agree with what I have to say.     The hacker

 3   community is not one big monolithic collective

 4   mind.     We try to print what information is out

 5   there that's different, that educates people the

 6   most on how things work and how things are

 7   vulnerable.    And that's what I think we did with

 8   this article and with the other ones.

 9        Q.      Let me show you the next article, ask

10   you if you remember this one.      Can you read this?

11        A.      "Cable Modem Security."

12        Q.      Can you just read the opening sentence?

13        A.      "Cable modems are becoming increasingly

14   popular among the Internet connected for a variety

15   of reasons, not the least of which is the

16   availability of a cheap, high-speed, high bandwidth

17   connection on request."

18        Q.      Fine, that's it.    Did you ever do

19   anything, put anything in your magazine, to

20   indicate you disagree with that statement?

21        A.      Like I said, we don't comment on

22   articles, we put our editorial comments on the

23   articles.

24        Q.      Did you believe that statement was

25   wrong?
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 2           A.   That cable modems are becoming

 3   popular --

 4           Q.   Correct.

 5           A.   High bandwidth?    Cable modems are

 6   obviously becoming popular, yes.     I won't disagree

 7   with that.

 8           Q.   Not the least of which is the

 9   availability of a cheap, high-speed, high bandwidth

10   connection on request.

11        A.      Uh-huh.    And that article is also

12   several years old.      And we have not really advanced

13   very far beyond cable modems in all that time.

14        Q.      Do you know of modems, the speed of

15   cable modems?

16        A.      I not familiar with the actual speed.

17   It varies.   It depends how many people are in your

18   loop.

19        Q.      Do you think they're quicker than 56?

20        A.      They're quicker than 56, but how much

21   quicker depends on how many other people share your

22   line.

23        Q.      Did you do anything to check the

24   veracity of that particular statement before you

25   published it?
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 2        A.       Whether or not cable modems are fast?

 3        Q.       Are becoming increasingly popular among

 4   the Internet connected for a variety of reasons,

 5   not the least of which is the availability of a

 6   cheap, high-speed, high bandwidth connection on

 7   request.

 8        A.       I don't understand why that would be a

 9   statement that would need to be verified.      It's

10   pretty common knowledge that cable modems are

11   popular because they offer, quote unquote, high

12   speed.

13               But I think it's also important that

14   that's what was said years ago, and we haven't

15   advanced beyond that, not to any significant

16   degree.    In fact, cable modems are still faster

17   than DSL in most cases.

18        Q.     My only question was did you do anything

19   to check the veracity of that particular statement.

20        A.     The answer is no.

21               MR. GARBUS:    I will object.   He has

22        already answered the question.

23               MR. LITVACK:   Why don't we take a

24        break.

25               THE VIDEOGRAPHER:    The time is 4:06
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 2        p.m. and this completes videotape number 4

 3        of the videotape deposition of Mr. Emmanuel

 4        Goldstein.

 5              (A recess was taken.)

 6              THE VIDEOGRAPHER:   The time 4:19 p.m.

 7        and this begins tape number 5 of the

 8        videotape deposition of Mr. Emmanuel

 9        Goldstein.

10   BY MR. GOLD:

11        Q.    I show you Volume Fourteen, Number Two,

12   which is the summer of 1997.

13             MR. GARBUS:    Let's mark it as an

14        exhibit so we can keep better charge of it.

15        Why don't you just identify the books you

16        have had so we can mark them as exhibits.

17        In other words, I previously referred to

18        so-and-so.

19             MR. LITVACK:   OK, we'll do it at end.

20        This is going to be a very quick question.

21              (Discussion off the record.)

22             THE WITNESS:   What page do you want me

23        to look at?

24        Q.   I believe you testified earlier that all

25   of the phones were not in the United States.
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 1                         Goldstein

 2        A.      No.

 3        Q.      Does that refresh your recollection that

 4   there are phones as well in the United States?

 5        A.      Yes, you did find one phone I forgot

 6   about.    Actually, if you look, there is no real

 7   phone in the phone booth.     It has just got paper

 8   cups and things.      But yes, something from Florida.

 9   From Disney World, I think.       Sorry, I stand

10   corrected.

11        Q.      It says from Panama City.     I assume --

12        A.      Which I think is in Florida, right?

13        Q.      Right.   Disney World I believe is in

14   Orlando.

15        A.      Never actually been there.

16        Q.      Leaving the 2600 magazines aside --

17   although there's one more article I wanted to ask

18   you about.   Do you know what a DOS is?

19        A.      DOS as denial of service or a DOS

20   operating system?

21        Q.      As in denial of service.

22        A.      Denial of service, yes.     There's been a

23   lot of publicity about that lately.

24        Q.      Have you written articles?     Have there

25   been articles in here on how to do DOS?
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 2          A.   There have been articles about how such

 3   an attack would be structured, yes.

 4          Q.   Have you ever participated in such an

 5   act?

 6          A.   No.

 7          Q.   Do you know anyone who has?

 8          A.   No, I don't.

 9          Q.   Is the reason you put an article in here

10   on how to do a DOS attack to try to help people

11   stop DOS attacks?

12          A.   Absolutely.

13               MR. GARBUS:    Objection.

14               MR. LITVACK:   Your objection is?

15               MR. GARBUS:    You're testifying.   You

16          should be asking him questions.   Go ahead.

17               MR. LITVACK:   I thought I had the

18          right to lead him, but OK.

19          A.   It absolutely can help somebody to have

20   the denial of service laid out in front of you so

21   you know exactly what is involved and you know how

22   it's comprised, what the weaknesses are that would

23   allow something like that to happen.

24                We have no interest in bringing the Net

25   down to a crawl, but it's something that I think
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 2   people should be aware of, absolutely.         There's a

 3   lot of ignorance floating around out there now.

 4   That's because not enough information is out there.

 5        Q.       The term "hacker" has been used.     You

 6   used that term.

 7        A.       Right.

 8        Q.       It means something to you.

 9        A.       Uh-huh.

10        Q.    In fact, you've written about what the

11   term means.

12        A.    Uh-huh.

13        Q.    That's a yes.

14        A.    Yes.

15        Q.    If you say "uh-huh," it really makes his

16   very hard job impossible.

17              And you have used the term "cracker."

18        A.    I have addressed the term "cracker."          I

19   don't use that term myself.         It's a misuse of what

20   I believe that term is.

21        Q.    Can you explain the difference?

22        A.    Well, I don't see cracker as a valid

23   definition at all.       I think that's simply a way of

24   defining hacking in a bad way without explaining

25   why it's bad.    So basically you have someone
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 2   defined as a cracker, you don't need to know any

 3   more about them.     You just know that they're bad.

 4   But you don't know what it is they did.

 5               I prefer to think of it as you have

 6   hacking and then you have criminal activity which

 7   can be defined by the crime.     So I don't think

 8   there's any need for another word.    But again,

 9   that's my opinion.    A lot of people don't share it.

10          Q.   There was talk earlier about, I believe

11   about Jon Johansen and you have written about Jon

12   Johansen, correct?

13          A.   On the web site I believe we have

14   written about Jon Johansen.

15          Q.   Have you ever spoken to Jon Johansen?

16          A.   I have never in person, no.

17          Q.   Have you talked to him about this case?

18          A.   There may have been like -- I might have

19   seen him in IRC once or someone who claimed to be

20   him.   Nothing in detail.

21          Q.   Have you E-mailed him?

22          A.   I think we might have exchanged one or

23   two E-mails just to say hello.

24          Q.   You just wrote back two E-mails, hello,

25   hello?
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 2           A.    Well, no.   This is simply -- I am not

 3   sure how the conversation would gotten started, if

 4   it was even much of a conversation.     After all, he

 5   is from Norway.    And I am not sure how good his

 6   English is.

 7                 I think at one point there might have

 8   been a mailing list that he and I were both on, and

 9   I might have seen his name pop up and said hello to

10   him, or something like that.     Since we were both in

11   the news, we might have just passed pleasantries.

12   But there was no discussion of any real details.       I

13   don't really know that many of his details.     All I

14   know is what happened to him.     What was in the

15   newspapers, I haven't talked at length with him or

16   really anyone about that.

17        Q.      Is it fair to say that you talked to

18   him, you had this E-mail exchange after November

19   1999?

20           A.    It was after November, yes.

21        Q.      Was it after January?

22        A.      It was after the action against us.     It

23   was either in January, late January or shortly

24   thereafter.    I think it was around the time of the

25   Linux Expo actually.      That might have been it.
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 2        Q.      Did he tell you anything about Linux?

 3        A.      Did he tell me anything about Linux?

 4        Q.      Yes.

 5        A.      No.

 6        Q.      Do you or does 2600 know who created

 7   DeCSS?

 8        A.      As far as I know, that is something that

 9   has never been definitively said one way or

10   another.   I didn't ask him if he was the person

11   behind it.

12        Q.      Do you or 2600 know or have an opinion

13   as to who created DeCSS?

14        A.      No.    I really have no knowledge about

15   that at all.

16        Q.      You said I think you used Napster once.

17        A.      Once or maybe twice.

18        Q.      Do you know what song you downloaded?

19        A.      Most recently I remember it was an

20   article in Time magazine about some band that

21   everybody was going crazy over, and I wanted to

22   hear what they sounded like.      So I found one of

23   their songs and listened to it and that was it.

24   Just to see what they sounded like.

25                I forget the name of the band.    It was
                                                               359
 1                        Goldstein

 2   some big article about their unique sound, the

 3   unique sound of this band, and that's the only time

 4   I remember.

 5                I remember I looked at the program to

 6   see how the program worked, and that was probably

 7   the first time I used it.    But I don't think I

 8   actually listened to a song then.       I looked at

 9   lists.    I remember looking at lists, but I don't

10   think I actually listened to a song.

11        Q.      To download though you stored a copy of

12   it on your hard drive.

13        A.      Yes, an MP3 had to be downloaded.

14        Q.      When you say downloaded, is it fair to

15   say you stored a copy to your hard drive?

16        A.       For that, yes, it would be fair to say.

17        Q.      I don't know another way to do it.

18   Maybe you do.    That's what I'm asking.

19        A.      Well, there's streaming.    Streaming is

20   live playing over the bandwidth you have.      And then

21   I don't -- my understanding of Napster is that it

22   copies it over to your system and then you listen

23   to it from your system.    That's my understanding.

24   I haven't really looked into it that deeply.

25        Q.      That's my understanding.     I am just
                                                              360
 1                         Goldstein

 2   trying to see if that's how you did it.

 3        A.      Right.

 4        Q.      Do you know where the hard drive that

 5   you -- is it still on your hard disk?

 6        A.      No, I don't think so.   I didn't like the

 7   song.     In fact, I only listened to a couple of

 8   seconds of it.

 9        Q.      Did you pay for that copy?

10        A.      There is no way to pay for an MP3

11   downloaded in that manner.

12        Q.      Did you ever ask the copyright owner

13   whether --

14                MR. GARBUS:    I will object to the form

15        of the question.      I don't see what it has to

16        do with this lawsuit.

17                MR. LITVACK:   Let me finish my

18        question.     I don't mean to cut off your

19        objection.    Just I thought it should be at

20        the end of the question.

21                MR. GARBUS:    I'm sorry, I thought you

22        had finished.     Go ahead.

23        Q.      Did you ever seek the authorization from

24   the copyright owner to make that copy?

25                THE WITNESS:   Are you going to object
                                                          361
 1                       Goldstein

 2        now or do I answer?

 3        Q.    That was the end.

 4              MR. GARBUS:   I object to the question.

 5        Answer it.

 6        A.    No.    I did not.

 7        Q.    The way your web site operates, I take

 8   it that unless you are enjoined, the linking, the

 9   hyperlinks, the DeCSS, will just be up there as

10   long as your web site is up; is that fair?

11        A.    Yes, that's a fair statement.

12        Q.    Was it your intention that if your

13   motion to lift the injunction against you and your

14   web site was granted that you would post DeCSS?

15              MR. GARBUS:   I will object to the

16        question.    Speculative.

17        A.    My understanding of legal issues, I

18   would assume that it would be back on our site if

19   we were allowed to put it on our site, yes.

20        Q.    That would be your intention.

21        A.    Yes.

22        Q.    In your declaration, you criticize the

23   MPAA for sending cease and desist letters.

24   Paragraph 22.

25              "The letters ... are misleading and
                                                            362
 1                      Goldstein

 2   intimidating, since they suggest that the recipient

 3   'may' be subject to an injunction even though

 4   Plaintiffs know very well that the recipient is

 5   not."

 6              Do you see that?

 7        A.    Yes.

 8        Q.    You didn't discuss with any of the

 9   plaintiffs what they know, did you?

10        A.    What they know?    No, I didn't.

11        Q.    Well, you're saying -- you could read

12   that I think fairly to say that you're testifying

13   to what the plaintiffs know.

14              MR. GARBUS:    I object to the question.

15        Q.    One way you may know that is having

16   discussed it with some of them.   All I am asking is

17   did you discuss it with any of them.

18              MR. LITVACK:    And I cannot believe

19        that's an objectionable question.

20              MR. GARBUS:    Go ahead.

21        A.    There are lots of other web sites that

22   have information out there.    It's discussed among

23   people in many different forums, and this is one of

24   the things I came to knowledge.

25        Q.    So your basis for that statement is not
                                                              363
 1                        Goldstein

 2   discussions with the plaintiffs?

 3        A.    No.   Well, they are not plaintiffs.    You

 4   mean defendants, right?

 5        Q.    No, you said plaintiffs.    "Plaintiffs

 6   know very well that the recipient is not."

 7        A.    Oh, I see what you're saying.     No, I did

 8   not discuss it with plaintiffs.

 9        Q.    Is part of your statement discussions

10   with your counsel?

11        A.    I believe we have talked about this.

12        Q.    What did your plaintiffs tell you that

13   you adopted into that statement?

14        A.    Plaintiffs?

15        Q.    What did your attorneys tell you that

16   you adopted into that statement?

17              MR. GARBUS:    I object to the question.

18              MR. LITVACK:   On the basis of?

19              MR. GARBUS:    It's attorney-client.

20              MR. LITVACK:   He said it forms the

21        basis of what he put into this statement.

22              MR. GARBUS:    It's still

23        attorney-client.

24              MR. LITVACK:    I would urge that you

25        waived it when you built it into that
                                                             364
 1                          Goldstein

 2          declaration.    Are you going to instruct him

 3          not to answer?

 4                MR. GARBUS:    Yes.

 5                MR. LITVACK:   Just so it is clear, our

 6          position is that because he used it as part

 7          of the foundation for that statement, you've

 8          waived it.

 9                MR GARBUS:    OK, I will let him answer

10          the question.

11               THE WITNESS:    Ask the question one

12          more time just so it's fresh in my mind.

13               MR. GARBUS:     The understanding is that

14          it is not a waiver of the attorney-client

15          privilege, but with respect to this question

16          we'll permit him to finish the deposition.

17          Q.   What did your attorneys tell you in

18   regards to these letters?

19          A.   My recollection is that while we may

20   have discussed it with my attorneys, I remember

21   this was an issue that came up on the Net

22   beforehand, that basically letters were being sent

23   out.   In fact, I believe this was posted on

24   cryptome.org as well, that other site, and other

25   sites, I am not certain as to which exact ones they
                                                                 365
 1                          Goldstein

 2   were.       That other letters had been delivered, and

 3   the way they were phrased was widely interpreted to

 4   mean that although we have no jurisdiction over

 5   you, you have to do what this letter says even

 6   though it seemed apparent that they didn't have any

 7   jurisdiction.

 8                   So to us, we saw that as kind of

 9   posturing, as kind of a threat, that didn't have

10   any real basis.       So I think most of it was based on

11   discussions with other people on the Net.       I know I

12   talked about it in passing with my attorneys, but I

13   don't think it was the basis for that statement.

14          Q.      All I am asking you is what did they

15   say.

16          A.      What did who say?

17          Q.      Your attorneys.

18          A.      With regards to this?

19           Q.     Yes.

20          A.      To be honest, I don't think they said

21   anything about the plaintiffs.      I don't remember

22   them saying anything about the plaintiffs.         I know

23   it was something that was touched upon very

24   briefly, but I don't think it was anything

25   significant.      I don't remember the details.
                                                       366
 1                   Goldstein

 2          MR. LITVACK:    Done.   Your witness.

 3          MR. GOLD:     Mr. Garbus, there are some

 4   things you had promised for today.      One of

 5   them was an answer to whether we could have

 6   our computer expert examine defendant's

 7   computer and see what we can retrieve

 8   relevant --

 9          MR. GARBUS:    I would object to that.

10   I have had a conversation with the

11   defendant.    I think the deposition is over

12   now.   And my understanding of what's on that

13   computer that you want is, first off, if

14   that were done, it would cause his operation

15   to stop 2600.com, and the rest of his

16   operation could not go if the hard drives

17   were removed.

18          And secondly, as I understand it, the

19   hard drives contain a great deal of personal

20   information that does not just belong to

21   2600.com, or Emmanuel Goldstein, but also

22   has information from other people.

23          MR. GOLD:   So we're not interested in

24   taking the hard drives.     We're interested in

25   looking at them to see if we can retrieve
                                                      367
 1                   Goldstein

 2   messages relating to this lawsuit and DVD

 3   and DeCSS.

 4         MR. GARBUS:     I understand.   I would

 5   oppose it and we can go to the court for a

 6   ruling on that.    Based on my understanding

 7   of what's on the hard drives.

 8         MR. GOLD:    Do you know that there's

 9   nothing on the hard drives that relate to

10   DeCSS or this case?

11        MR. GARBUS:     No, I have never seen the

12   hard disks.   What I do know is that I spoke

13   to my client and he tells me that these hard

14   disks contain information from people other

15   than he, contain private correspondence

16   between people unrelated to 2600.com or

17   Emmanuel Goldstein.

18        And that therefore, it would be, as he

19   understands it, a violation of their privacy

20   to turn over those hard drives.

21        Secondly, as I said before, any

22   interference with the hard disks would cause

23   a disruption.    So I suspect we can get a

24   ruling before the judge on that and we would

25   oppose.
                                                        368
 1                  Goldstein

 2           MR. GOLD:     Your position is you can

 3   keep from us irrelevant communications that

 4   we would be entitled to receive, but we

 5   can't because they are in his hard disk and

 6   we're not supposed to touch that.      That's

 7   what I am understanding.

 8           MR. GARBUS:    I don't think you're

 9   characterizing it correctly.       I do remind

10   you that we have asked for Mr. Schulman's

11   hard drive with respect to DeCSS tests that

12   he conducted and I don't want to get into

13   that.

14           I am saying that with respect to these

15   hard disks, I think that's an issue which we

16   should discuss with the court.      There may be

17   some way of doing it.      I don't know of a way

18   of doing it.   It may be that the judge could

19   appoint an impartial person and I don't know

20   that that's appropriate or something we

21   would want to do to determine what can or

22   can't be found on these hard drives.

23           I don't know how you do it, but I

24   don't have a sufficient knowledge of

25   technology to know how you can do this
                                                       369
 1                 Goldstein

 2   without invading the privacy of other

 3   people's correspondence.    According to what

 4   I have been told, not by Mr. Goldstein so

 5   much, but by other people familiar with

 6   these hard drives --

 7         MR. GOLD:     Are you willing to identify

 8   at least once today, we'll get the

 9   identification of someone who passes all

10   this information on to people, but would

11   remain totally secret?    Which expert?   Which

12   expert did you talk to?

13         MR. GARBUS:    No, I am not going to get

14   into that.   What I am telling you is that we

15   are prepared to deal with any application

16   you make before Judge Kaplan concerning

17   these hard drives.

18         MR. GOLD:   I'm impressed.   Did you now

19   turn over to us all of the documents that

20   Mr. Goldstein turned over to you?

21         MR. GARBUS:     My understanding is that

22   we have.   I had understood that --

23         MR. GOLD:   Is there a way to get a yes

24   or no to that even if not here?

25         MR. GARBUS:    We have turned over to
                                                         370
 1                   Goldstein

 2   you all of the documents we had.        There are

 3   other documents that we had asked be sent to

 4   us.    We had understood they were to be

 5   FedEx'd to us this morning from Long Island.

 6   We haven't received them.

 7           MR. GOLD:     Which are they?

 8           MR. GARBUS:    I think they are

 9   additional copies of --

10           THE WITNESS:    Earlier, they're really

11   issues.

12           MR. GARBUS:     -- earlier issues of The

13   Hacker Quarterly.      As soon as we get those

14   we'll of course give them to you.

15           MR. GOLD:   We cannot consider this

16   deposition closed until we see the documents

17   that we should have gotten a couple of weeks

18   ago.

19           One other thing I wanted to take up

20   with you, I don't know if you have ever seen

21   our notice to admit.

22           MR. GARBUS:    I have not.

23           MR. GOLD:   It's past due, your

24   response to it is well past due.

25           MR. GARBUS:    I have not seen it.
                                                      371
 1                Goldstein

 2         MR. GOLD:     I would prefer not moving

 3   before the court, and if you could tell me

 4   tomorrow when we're going to get response to

 5   our notice to commit, then I won't have to

 6   go to the judge.

 7         MR. GARBUS:    I will speak to

 8   Mr. Hernstadt.    I presume he has that.

 9         MR. GOLD:     We have already sent him a

10   letter today --

11         MR. GARBUS:    OK.

12         MR. GOLD:     -- saying the same thing,

13   but I wanted you to know all of the things

14   that we feel that needed your light on.

15         MR. GARBUS:    I appreciate the

16   courtesy.

17         MR. LITVACK:     The only documents

18   produced are the tax returns and these

19   magazines.

20         MR. GARBUS:    No.   We had also, as I

21   told you yesterday, we had given you as part

22   of the motion on the injunction and the

23   linking, we had then taken the files that we

24   had and we attached it to the Goldstein

25   affidavit.
                                                           372
 1                  Goldstein

 2        So you had yesterday and Mr. Gold had

 3   yesterday a pack of documents which Mr. Gold

 4   asked me to have the client look at

 5   overnight, which he did, which are these

 6   pieces of paper.   So what I said yesterday

 7   is we could again give you these documents

 8   as the documents we have.   But we had given

 9   them to you already.   And that's roughly 200

10   pages of something.    I don't know if it's

11   200 pages or not, but that's what it looks

12   like to me.

13        MR. LITVACK:     I did not see them.    I

14   would suggest that Mr. Goldstein knows how

15   to print stuff from his hard disk as well as

16   just about anyone.

17        MR. GOLD:     Actually, he testified.       He

18   denied that.   He said he didn't think it

19   could be done.   He's tried to do it.

20        MR. GARBUS:     To do what?

21        MR. GOLD:     And he can't do it.   That

22   was his testimony.

23        MR. GARBUS:     To do what?

24        MR. LITVACK:     Then I stand corrected.

25        MR. GARBUS:     I think that also, as I
                                                     373
 1                 Goldstein

 2   said to you yesterday, that anything that

 3   Mr. Goldstein has access to as I understand

 4   it can be downloaded from the Web.   And what

 5   I ask and what I would try and see whether I

 6   can get done, and I raise that question

 7   today, is whether there's some way, and you

 8   had some of those documents yesterday, that

 9   includes some of this, is whether through

10   any kind of electronic system we can give

11   you more documents that we have if we

12   haven't given you those and I am waiting for

13   a responsive answer to know that.

14        MR. GOLD:   Well, I think we are

15   finished for the day, but Mr. Goldstein, we

16   are not yet finished with your deposition

17   until we get our documents.

18        MR. GARBUS:   OK.

19        (Continued on the next page.)

20

21

22

23

24

25
                                                        374
 1                     Goldstein

 2             THE VIDEOGRAPHER:   The time is 4:44

 3        p.m. and this videotape deposition of

 4        Mr. Emmanuel Goldstein will be adjourned

 5        until a time and place to be agreed among

 6        all parties and counsel, and this completes

 7        tape number 5.

 8             (Time noted:   4:44 p.m.)

 9

10                         ____________________

11                         EMMANUEL GOLDSTEIN

12

13   Subscribed and sworn to before me

14   this ___ day of __________, 2000.

15

16   _________________________________

17

18

19

20

21

22

23

24

25
                                                          375
 1

 2                 C E R T I F I C A T E

 3   STATE OF NEW YORK     )

 4                         : ss.

 5   COUNTY OF SUFFOLK     )

 6

 7             I, THOMAS R. NICHOLS, a Notary Public

 8       within and for the State of New York, do

 9       hereby certify:

10             That EMMANUEL GOLDSTEIN, the witness

11       whose deposition is hereinbefore set forth,

12       was previously duly sworn and that such

13       deposition is a true record of the testimony

14       given by the witness.

15             I further certify that I am not

16       related to any of the parties to this action

17       by blood or marriage, and that I am in no

18       way interested in the outcome of this

19       matter.

20             IN WITNESS WHEREOF, I have hereunto

21       set my hand this 29th day of June, 2000.

22

23                                 ____________________

24                                 THOMAS R. NICHOLS

25
                                                               376
 1

 2

 3

 4   ------------------- I N D E X -------------------

 5   WITNESS                     EXAMINATION BY     PAGE

 6   EMMANUEL GOLDSTEIN          MR. GOLD               168

 7                               MR. LITVACK        305

 8

 9   ------------- INFORMATION REQUESTS --------------

10   DIRECTIONS:    NONE

11   RULINGS:    NONE

12   TO BE FURNISHED:      177

13   REQUESTS:    171

14   MOTIONS:     180, 193, 198, 214, 225, 273, 296, 245

15

16   -------------------- EXHIBITS -------------------

17   PLAINTIFFS'                                  FOR ID.

18      6         Series of documents on                 240
                  web sites and web listings
19
        7         2-page document, 2600 News Archives, 292
20                December 1999

21      8         3-page document, 2600: The Hacker      321
                  Quarterly, entitled "Call to Action
22

23

24

25

								
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