Politech mailing list archives
FC: Transcript of DVD trial in New York: Defense vs. the Judge
From: Declan McCullagh <declan () well com>
Date: Thu, 20 Jul 2000 09:46:24 -0400
[These are my favorite parts from yesterday's transcript. Note the repeated bickering -- and dare I say? -- grandstanding. --Declan]
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
3 UNIVERSAL CITY STUDIOS, INC.,
et al,
4
Plaintiffs,
5
v. 00 Civ. 277 (LAK)
6
SHAWN C. REIMERDES, et al,
7
Defendants.
8
------------------------------x
9
July 19, 2000
10 9:00 a.m.
11 Before:
12 HON. LEWIS A. KAPLAN,
13 District Judge
14 APPEARANCES
15 PROSKAUER, ROSE, L.L.P.
Attorneys for Plaintiffs
16 BY: LEON P. GOLD
CHARLES S. SIMS
17 CARLA MILLER
SCOTT COOPER
18
FRANKFURT, GARBUS, KLEIN & SELZ
19 Attorneys for Defendants
BY: MARTIN GARBUS
20 ERNEST HERNSTADT
DAVID ATLAS
21
22
23
24
25
413
1 THE COURT: Before we get started with the witness,
2 let me just make a suggestion to you.
3 We have been proceeding on the assumptions that
4 everybody knows and that the record reflects such fundamental
5 facts as what's a computer, what's an operating system, what's
6 the Internet or the worldwide web, and so on.
7 In the interest of having a complete record, it seems
8 to me we ought not to assume those things. So, I invite your
9 attention to what I think are entirely uncontroversial
10 findings on those points in U.S. v. Microsoft, basically
11 defining the terms which is reported at 84 Fed.Supp.2d page 9.
12 And the ones I thought particularly relevant were paragraphs
13 1, 2, 11, 12, 13, 14, and 16, which simply lay out the
14 background.
15 I would invite you to look at them at some point and
16 see whether you will stipulate to them. And if you can't
17 stipulate to them, address the question of why I shouldn't
18 take judicial notice of the facts in those paragraphs.
19 Obviously we are not trying the Microsoft case here.
20 Let's proceed.
21 MR. GARBUS: Your Honor, may we approach the bench?
22 THE COURT: Yes.
23 (At the sidebar)
24 MR. GARBUS: I have some suggested stipulations that
25 may save a great deal of time and we may be able to -- (1)
414
1 that there's no direct proof that any single copy of a movie
2 has ever been sent out on the Internet, that is DeCSS and
3 deencrypted --
4 MR. GOLD: If I may? Your Honor, I would
5 respectfully request that whatever stipulations Mr. Garbus may
6 have in the case and whenever he has them, I would love to get
7 them in writing so I can look at them and it seems to me the
8 quickest way to do it, instead of grabbing a minute or two
9 before a particular witness is examined --
10 MR. GARBUS: I'm trying to do this because of time.
11 MR. SIMS: Your Honor --
12 THE COURT: Don't everybody talk at once.
13 I know you are, Mr. Garbus. And I appreciate that
14 you are trying to save time. I don't want to take trial time
15 unnecessarily with this. I can't anticipate the discussion
16 from yesterday's discussion and I think the solution on at
17 least the one you read now is readily obvious, in light of the
18 solution yesterday.
19 I suspect that when Mr. Gold gets a chance to think
20 about it, he will agree with the same caveats he agreed
21 yesterday, that is, he's going to ask me to infer and he is
22 going to want you to, at this point, I suppose that lots of
23 people are offering movies that purport to be decrypted and
24 that I should infer, even in the absence of specific knowledge
25 as to what utility was used to decrypt them, that at least
415
1 some of them were decrypted with DeCSS, and you will have your
2 arguments on.
3 Why don't you have that discussion between yourselves
4 first.
5 MR. SIMS: We provided you five pages of proposed
6 stipulations last week at the judge's request and we've never
7 gotten any response and I've written about it.
8 MR. GARBUS: I haven't seen them.
9 THE COURT: Work that out.
10 MR. GARBUS: The other thing I wanted to mention is
11 since your Court has been very sensitive about the whole issue
12 of press, I wanted to mention that over the of the two days, I
13 have not spoken to any representative of the press. I have no
14 objection to the fact that other people have spoken to members
15 of press. They have every right to do so.
16 I just wanted to point that out. We have not in over
17 the last two days not spoken to a soul.
18 THE COURT: We are just not going to get into that,
19 Mr. Garbus. You have made your assertion. Ms. Gross and the
20 Electronic Frontier Foundation, which is I gather financing
21 this case, and she's sitting at counsel table with you,
22 weren't covered by your remarks I noticed.
23 MR. GARBUS: They were.
24 THE COURT: Nor were any of a number of other people.
25 So, let's --
416
1 MR. GARBUS: I was talking about myself.
2 THE COURT: Let's just avoid all these protestations.
3 MR GOLD: Your Honor, in the late afternoon
4 yesterday, you asked us several questions about turning over
5 of drafts of Mr. Schumann's declaration and we have run that
6 down at this point. Is it appropriate to do it now or would
7 you rather wait?
8 THE COURT: Did I ask you questions? I just asked
9 you to turn them over, if you had it. What's the problem?
10 MR GOLD: What happened is when we verified this with
11 the records, after the deposition, we got a letter from
12 defendant's firm asking very specifically for documents. They
13 did not ask for the drafts of any declarations; however, they
14 did ask for some specific materials and what Mr. Schumann did
15 is turn over his whole file at that point.
16 The file contained drafts that he had in his
17 possession of this declaration. Although they had not been
18 asked for, we took Mr. Schumann's file and turned it all over,
19 including declarations, to the defendants.
20 I know your Honor doesn't want me to bring up other
21 issues that we have about documents with the defendants, so I
22 will not. So, there were drafts and they were turned over.
23 THE COURT: All right. Let's go.
24 (In open court)
[Garbus for the defense is questioning]
19 Q. Do you know the name of any one person who was sharing
20 films on the Internet who was sharing a film that has been
21 deencrypted through DeCSS?
22 A. No, I don't.
23 Q. Have you ever seen a document from the MPAA, your studio,
24 or any other studio that indicates that any attempt was made
25 to learn the names of the people who allegedly claim on the
434
1 Internet that they have used DeCSS to deencrypt movies?
2 MR GOLD: Your Honor, I object to the form of the
3 question.
4 THE COURT: To the form, Mr. Gold? What's wrong with
5 the form?
6 MR GOLD: I thought it was compound and I didn't
7 quite understand it myself.
8 THE COURT: Rephrase it, Mr. Garbus.
9 MR. GARBUS: Can I hear the question again?
10 THE COURT: Go ahead.
11 (Record read)
12 MR. GARBUS: I can break it is down into six
13 questions, if you want.
14 Q. Have you ever seen any document --
15 THE COURT: I do you think the sarcasm is helpful, or
16 is that designed to provoke a reaction?
17 MR. GARBUS: No, no, no, no, just trying to save
18 time.
19 THE COURT: Go ahead.
20 Q. Have you ever seen a document from the MPAA that gives you
21 the name of any person on the Internet who allegedly is
22 seeking to share a deencrypted movie?
23 A. No.
24 Q. Have you ever seen any document which shows any attempt
25 made by the MPAA to learn the name of any person who allegedly
435
1 shares a movie allegedly deencrypted through DeCSS?
2 A. No.
...
6 MR. GARBUS: Yes. May I approach the bench?
7 THE COURT: Yes.
8 Q. Did you ever see that press release?
9 MR. GOLD: Your Honor, we are trying to come up with
10 a copy of this.
11 THE COURT: Mr. Garbus, maybe you can give counsel a
12 copy.
13 MR. GOLD: We have ZM.
14 THE COURT: Z as in zebra, Defendants' ZM. Do you
15 have it now, Mr. Gold?
16 MR. GOLD: Yes, ZM.
17 Q. Have you ever seen that press release before?
18 MR. GOLD: Your Honor, I believe -- this is a
19 document as to which you have held it is work product.
20 THE COURT: What?
21 MR. GOLD: We have made the assertion that this is
22 work product, this document.
23 THE COURT: This is one of the things that was
24 produced under the no waiver?
25 MR. GOLD: Yes, your Honor.
456
1 MR. HERNSTADT: No, your Honor, that one wasn't.
2 There may have been others.
3 THE COURT: It has a Bates number on it. You fellows
4 ought to be able to figure this out.
5 MR. HERNSTADT: All the no waiver documents were
6 stamped.
7 MR. SIMS: This was officially produced without a
8 stamp, and we sent them a letter, it was privileged as they
9 know because they have seen the other documents. It was never
10 released as a press release and it was drafted largely by
11 lawyers.
12 THE COURT: Look, Mr. Garbus, I think you are
13 entitled to find out at a minimum whether it was ever
14 released, because if it was there is no question of privilege.
15 So, see if you can deal with that.
16 MR. GARBUS: Mr. Gold, was it ever released?
17 MR. GOLD: We were advised it was not released.
18 THE COURT: Mr. Gold is not the witness.
19 Q. Ms. King, do you know if it was ever released?
20 A. I don't think it was released.
21 Q. Have you ever seen any statements made by Mr. Valenti
22 saying that the so-called CSS hack is useless?
23 A. Well, I may have seen this draft.
24 THE COURT: That's not the question. Forget the
25 document.
457
1 THE WITNESS: Okay.
...
8 MR. GARBUS: Can we just approach the bench for a
9 moment, your Honor?
10 THE COURT: I'm sorry?
11 MR. GARBUS: Can we approach the bench for a moment?
12 THE COURT: Yes.
13 (At the sidebar)
14 MR. GARBUS: I'm not going to pursue this line of
15 inquiry any further. It seems perfectly obvious to me that
16 even before the Audio Home Recording Act of 1992 that anyone
17 who was thinking of releasing any product into the consumer
18 market was extraordinarily concerned about security.
19 What this witness has just answered is, and I don't
20 remember her question and answer, that you were not going to
21 have a product released, she just gave a "yes" to my last
22 question. I'm not going to state it here and I'm not going to
23 go any further with it, but it's inconceivable to me -- I
24 won't say what's inconceivable to me.
25 MR GOLD: Your Honor, the witness has testified that
474
1 Warner had made the decision that they were not going to
2 release DVDs unless there was an encryption system that they
3 felt good about. She also testified that at the meeting, she
4 went to in the industry, she heard and knew that the other
5 studios felt the same way.
6 THE COURT: Look, I don't have to hear all of that.
7 This is exceptionally simple. The only reason I raise the
8 question is because quite apart from what the parties have
9 raised, I have an independent obligation under Section
10 455(b)(2) of the Code to disqualify myself if it appears that
11 someone with whom I practiced law at the time I did so was
12 engaged by a party "concerning the matter."
13 It is a subject in the context of this case on which
14 I have no knowledge of my own. I am entirely at the mercy of
15 what the parties put before me. I don't know that I had. An
16 obligation extending so far as to ask the question that I did,
17 but I now have before me the witness' deposition testimony. I
18 have what she said here.
19 I have the affidavits that were put before me on the
20 motion. And the issue is, as far as I'm concerned, closed
21 absent new evidence. I do not view this trial as a discovery
22 proceeding for the purpose of conducting an expedition in
23 search of that new evidence. Obviously, if there is such
24 evidence and it requires my disqualification, I will readily
25 do so, but I haven't seen it and what we are here to try now
475
1 is this case.
2 MR. GARBUS: So, can I understand something? So,
3 then I should not continue the line of questioning leading
4 from the AHRA of '92 up to '95 and '96?
5 THE COURT: I can't make abstract rulings like that.
6 I believe that I said in my opinion, Mr. Garbus, that one
7 reasonably might infer, although I don't have the text in
8 front of me, that somebody probably thought about security at
9 some earlier point, but somebody thinking about security and
10 my partner, former partner, having been engaged with respect
11 to security, if indeed that would be enough, which I express
12 no view on right now, in the period prior to August 22, 1994
13 is a whole other matter.
14 MR. GARBUS: Thank you.
...
3 Q. And let me, just getting away from the contracts, see if I
4 can understand something. If I go into Tower and buy a Warner
5 Brother DVD, give me the name of a film that Warner Brothers
6 makes so we can make it more specific.
7 THE COURT: It would have to have Tom Hanks and Meg
8 Ryan.
9 A. "Matrix." "You've Got Mail"; it's our movie.
10 MR. GARBUS: We'll use the judge's movie.
11 Q. "Sleepless In Seattle"?
12 A. Not our movie.
13 Q. Sorry. "You've Got Mail." If I go in, am I authorized by
14 Warner Brothers from whom I buy it to look at that DVD?
15 A. Sure.
16 Q. Am I authorized by Warner Brothers to -- with respect to
17 that DVD to somehow break it down so that I can look at it in
18 my video box?
19 THE COURT: What's a video box? What do you mean by
20 that?
21 MR. GARBUS: Video player.
22 MR GOLD: Your Honor, I object to the question.
23 THE COURT: Sustained.
24 Q. Am I authorized by Warner Brothers to make a copy of that
25 DVD?
487
1 A. No.
2 Q. Am I authorized by Warner Brothers to take that DVD to an
3 unauthorized player, one that does not have a contract with
4 the DVD-CCA?
5 MR GOLD: Your Honor, I cannot understand the
6 relevance of this line. He may be planning other lawsuits,
7 but I don't understand the relevance to this one.
8 THE COURT: Look, Mr. Garbus, it seems to me that
9 what this is beginning to sound like is the start of a debate
10 between you and the witness about what the Copyright Act
11 permits the buyer of a copyrighted work to do with it.
12 If that's what it is, that's a debate that you and
13 Mr. Gold will have and I will decide. It's a legal question.
14 And it's not a matter for testimony. If it's something else,
15 I don't perceive what it might be.
16 MR. GARBUS: It's not a debate. I just want to find
17 out the facts as Warner Brothers understands it.
18 THE COURT: So, you want Warner Brothers'
19 understanding of what the Copyright Act provides?
20 MR. GARBUS: No. I want to know, she stands there on
21 behalf of Warner Brothers. And I want to know if I can
22 whether as she -- in my contract, if you will, when I buy this
23 from Tower, can I play this on any player, anywhere, anywhere
24 in the world? That's what I want to know.
25 THE COURT: The objection is sustained.
488
1 The law is what it is. And arguing with the witness
2 about it, even in an entirely amicable way is not an
3 appropriate part of this trial.
4 MR. GARBUS: Well, it seems to me, and I'm not going
5 to press it, and I say this amicably that it's a way of
6 getting at least the facts in with respect to -- unless we can
7 stipulate.
8 THE COURT: But the facts are perfectly obvious.
9 There is no contract between Warner and the ultimate consumer.
10 Warner sells the disks to whomever they sell them to. Tower
11 buys them from somebody.
12 Tower then sells the disk to you or to whomever else
13 and whatever rights you acquire beyond the naked ownership of
14 the project, the hunk of plastic that constitutes the disk is
15 a function of the Copyright Act and the DMCA and whatever
16 other legislation is appropriate.
17 MR. GARBUS: Excuse me.
18 THE COURT: It's not a factual matter.
19 (Pause)
...
19 Q. And is Macrovision utilized on DVDs?
20 A. Yes, it is.
21 Q. How?
22 A. It's used to protect analog content through two systems,
23 one called Automatic Gain Control, AGC, and something called
24 color burst, I believe.
25 Q. Have you ever seen a Macrovision report dated November 15
522
1 saying that the encryption system is weak, useless and,
2 however, will not be of any use to hackers in making illegal
3 copies?
4 MR. GOLD: Your Honor, is that a quote from the
5 article?
6 THE COURT: I don't know what it is.
7 MR. GOLD: I object to the form of the question.
8 THE COURT: Sustained as to form.
9 Q. Looking at 2.2.2, it says the content scrambling scheme is
10 relatively unsophisticated. And this was furnished to Warner
11 Home Video back in April 30, 1997, and it goes from you to
12 Mr. Cookson.
13 Did you and Mr. Cookson have any discussion about
14 that sentence?
15 A. I can't recall whether we discussed this particular
16 sentence.
17 Q. Did you have any discussion with him about the weakness of
18 CSS?
19 MR. GOLD: Your Honor, clearly this goes to
20 effectiveness, and I think that you blocked that area of
21 inquiry, that you ruled on that area of inquiry yesterday.
22 THE COURT: What about that, Mr. Garbus?
23 MR. GARBUS: If you want, I will get away from it. I
24 think the issue --
25 THE COURT: That's not the point, Mr. Garbus. The
523
1 point is to respond to the objection.
2 MR. GARBUS: I think the objection is incorrect. I
3 think it's relevant whether or not the movie studios knew back
4 in April of 1997 that DeCSS was unsophisticated and could be
5 easily broken.
6 THE COURT: It's relevant for what purpose?
7 MR. GARBUS: Pardon me, I said DeCSS. I think it's
8 relevant in this case to show that they knew that this CSS
9 could not control access to the product that they had.
10 THE COURT: Objection sustained.
11 MR. GARBUS: It also goes to the question I think of
12 harm, namely if we show that they knew in 1997 that this
13 encryption system was to be what I understand it, then if they
14 suffered harm knowing that, then I think that's relevant to
15 the question of the harm that they suffered.
16 THE COURT: So, in other words, if somebody put a
17 crummy lock on their door and a burglar goes through it, there
18 is no crime. Is that your point?
19 MR. GARBUS: That's not what I'm saying.
20 THE COURT: Okay. Objection sustained.
21 MR. GARBUS: Not what I'm saying. A burglar is not
22 dealing with the DMCA or copyright law.
23 THE COURT: No, the burglar is dealing with a penal
24 law that says in substance you can't circumvent controls that
25 limit access to your apartment, Mr. Garbus.
524
1 MR. GARBUS: Shall I then stop asking questions?
2 THE COURT: Mr. Garbus, I'm ruling on them one at a
3 time.
...
16 Q. Do you believe in January of 2000 that your public,
17 Warner's public, was jittery about the crack of the BSD could
18 lose faith in the --
19 MR. GARBUS: I object to the form of the question.
20 THE COURT: Sustained.
21 MR. GARBUS: If the witness hasn't been told thus far
22 what to answer --
23 THE COURT: That was unnecessary.
24 Anything else, Mr. Gold?
25 MR GOLD: Yes.
546
1 Q. What is your present judgment, Ms. King, about the
2 incentives to use DeCSS to copy and transmit Warner DVDs?
3 MR. GARBUS: Object to the question.
4 THE COURT: On what ground?
5 MR. GARBUS: That he's told him what to testify to
6 already.
7 THE COURT: This will be a very short trial if we
8 exclude the witnesses called by both parties on the theory
9 that each lawyer has told them what to say.
10 Overruled.
11 THE WITNESS: Can you repeat the question, please?
12 THE COURT: I think we could get rid of all trials in
13 America on that ground.
14 MR. GOLD: When I used that statement at lunch in a
15 different context, my listener said, well, will that be a bad
16 thing?
17 THE COURT: Don't answer that, Ms. King.
18 MR. GOLD: I said, yes.
19 THE COURT: Come on. Is there another question?
20 BY MR. GOLD:
21 Q. What is your present judgment, Ms. King, about the
22 incentives to use DeCSS to copy Warner DVDs?
23 MR. GARBUS: I'll object to it, that there's been no
24 proof that DeCSS is being used to transmit any DVDs.
25 THE COURT: Overruled.
...
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