14 June 2000. Thanks to Anonymous.

See also Part 2 of the deposition: http://cryptome.org/mpaa-v-2600-kj2.htm

See related files:

http://www.eff.org/pub/Intellectual_property/DVD/
http://eon.law.harvard.edu/openlaw/dvd/
http://www.2600.com
http://jya.com/cryptout.htm#DVD-DeCSS


             
                                                                   1

              1                             

              2
                                UNITED STATES DISTRICT COURT
              3
                               SOUTHERN DISTRICT OF NEW YORK
              4

              5   UNIVERSAL CITY STUDIOS, INC., PARAMOUNT  )
                  PICTURES CORPORATION, METRO-GOLDWYN-MAYER)
              6   STUDIOS, INC., TRISTAR PICTURES, INC.,   )
                  COLUMBIA PICTURES INDUSTRIES, INC.,      )
              7   TIME WARNER ENTERTAINMENT CO., L.P.,     )
                  DISNEY ENTERPRISES, INC., and TWENTIETH  )
              8   CENTURY FOX FILM CORPORATION,            )
                                                           )  Civ. No.
              9                        Plaintiffs,         )  0277 (LAK)
                                                           )
             10                 vs.                        )
                                                           )
             11   ERIC CORLEY a/k/a "EMMANUEL GOLDSTEIN"   )
                  and 2600 ENTERPRISES, INC.,              )
             12                                            )
                                       Defendants.         )
             13   -----------------------------------------)

             14                                   May 17, 2000

             15                                   9:45 a.m.

             16

             17                  DEPOSITION of KENNETH A. JACOBSEN,

             18           held at the offices of Frankfurt Garbus

             19           Klein & Selz, P.C., 488 Madison Avenue, New

             20           York, New York, pursuant to Order and

             21           Notice, before ELIZABETH SANTAMARIA, a

             22           Notary Public of the State of New York.

             23

             24   Reported by:
                  ELIZABETH SANTAMARIA
             25   


                              INTERIM COURT REPORTING                   
  
   

                                                                   2

              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:    SCOTT P. COOPER, ESQ.

              9

             10           FRANKFURT GARBUS KLEIN & SELZ, P.C.

             11           Attorneys for Defendants

             12                  488 Madison Avenue

             13                  New York, New York 10022

             14           BY:    MARTIN GARBUS, ESQ.

             15                        - and -

             16                  EDWARD HERNSTADT, ESQ.

             17
                          ALSO PRESENT:
             18
                                 Motion Picture Association
             19                  Mark D. Litvack, Esq.
                                 In-house Counsel
             20
                                       --o0o--
             21

             22

             23

             24

             25


                              INTERIM COURT REPORTING

                                                                   3

              1                             

              2                         --o0o--

              3

              4                 IT IS HEREBY STIPULATED AND AGREED by

              5           and between the attorneys for the

              6           respective parties herein that filing and

              7           sealing be and the same are hereby waived.

              8                 IT IS FURTHER STIPULATED AND AGREED

              9           that all objections, except as to the form

             10           of the question, shall be reserved to the

             11           time of the trial.

             12                 IT IS FURTHER STIPULATED AND AGREED

             13           that the within deposition may be sworn to

             14           and signed before any officer authorized to

             15           administer an oath, with the same force and

             16           effect as if signed and sworn to before the

             17           Court.

             18                        --oOo--

             19

             20

             21

             22

             23

             24

             25


                              INTERIM COURT REPORTING

                                                                   4

              1                         

              2                        --oOo--

              3   K E N N E T H   A.   J A C O B S E N,

              4           called as a witness, having been duly sworn

              5           by the Notary Public, was examined and

              6           testified as follows:

              7   EXAMINATION BY

              8   MR. GARBUS:

              9       

             10                    Confidential 

             11                      

             12   

             13 

             14 

             15           Q.     Mr. Jacobsen, prior to coming here

             16   today, did you read the deposition of Mr. Schumann?

             17           A.     I did not.

             18           Q.     Were you told about the deposition

             19   of Mr. Schumann?

             20                  MR. COOPER:  I am going to object

             21           to the extent that the only conversations

             22           Mr. Jacobsen had with respect to the

             23           deposition of Mr. Schumann were with his

             24           attorneys.

             25                  MR. GARBUS:  Please mark this as


                              INTERIM COURT REPORTING

                                                                   5

              1                         Jacobsen

              2           Exhibit 10.

              3                  (Defendants' Exhibit 10, Declaration

              4           of Robin Gross, marked for identification,

              5           as of this date.)

              6   BY MR. GARBUS:

              7           Q.     Have you read the affidavits

              8   submitted by either side in this case thus far?

              9           A.     I have not.

             10           Q.     The first question we asked of

             11   Mr. Schumann dealt with -- do you know who Gerald

             12   Gockner is?

             13           A.     I do not.

             14           Q.     Who is the deputy counsel for the

             15   MPAA?

             16           A.     Greg Geckner.

             17           Q.     Do you know who he is?

             18           A.     Yes, I do.

             19           Q.     Do you know that some weeks ago he

             20   said that so far as he knew there was no piracy

             21   that he knew of with we respect to the use of

             22   deCSS?

             23                  MR. COOPER:  Is that a quote or

             24           are you paraphrasing?

             25                  MR. GARBUS:  I am quoting from the


                              INTERIM COURT REPORTING

                                                                   6

              1                         Jacobsen

              2           Robin Gross affidavit at Paragraph 5,

              3           Page 2.

              4           Q.     Do you know whether the following

              5   statement that Mr. Geckner allegedly made is true

              6   or not?

              7                  MR. COOPER:  This is which

              8           paragraph now?  I will put it before the

              9           witness.

             10                  MR. GARBUS:  Paragraph 5, sentence

             11           2.  Let's mark this as the next document.

             12                  MR. COOPER:  Sir, are you asking

             13           whether Ms. Kaplan's recitation is a

             14           correct quote of what Mr. Geckner said or

             15           are you asking whether this witness knows

             16           whether what is attributed to Mr. Geckner

             17           was true, in fact?

             18                  MR. GARBUS:  The latter.

             19           A.     If I understand, you are asking me

             20   whether or not -- one, I don't know that

             21   Mr. Geckner ever made such a statement.  Okay?

             22           Q.     Let me show you Page 10 of the

             23   deposition of Mr. Schumann, Line 15 to Line 18.

             24                  Can you tell me whether or not, to

             25   the best of your recollection, if you know, whether


                              INTERIM COURT REPORTING

                                                                   7

              1                         Jacobsen

              2   or not there has been any piracy resulting from

              3   deCSS.

              4                  MR. COOPER:  Are you asking the

              5           witness to make reference to

              6           Mr. Schumann's testimony in response to

              7           your question or are you asking whether

              8           the witness has such knowledge

              9           independent of any reference to this

             10           testimony?

             11                  MR. GARBUS:  The latter.

             12                  MR. COOPER:  Do you understand the

             13           question?

             14                  THE WITNESS:  No.

             15           Q.     Do you have any knowledge of any

             16   piracy specifically relating to deCSS?

             17           A.     This may be a definitional problem,

             18   but I would view piracy as the actual distribution

             19   of deCSS itself.

             20           Q.     Right.

             21           A.     So I would consider that to be

             22   piracy.

             23           Q.     Do you know whether any DVDs were

             24   made as a result of the distribution of deCSS?

             25           A.     If you are asking me if I know of


                              INTERIM COURT REPORTING

                                                                   8

              1                         Jacobsen

              2   any specific instances where someone has used the

              3   deCSS utility to hack a DVD and then make an

              4   unauthorized copy, the answer is no.

              5           Q.     Was there any attempt made by the

              6   MPAA to determine whether or not anybody had hacked

              7   a DVD using deCSS to make an unscrambled DVD?

              8                  MR. COOPER:  Let me just say that

              9           with respect to the nature of this

             10           questioning I am going to designate the

             11           witness' testimony and the transcript

             12           confidential.

             13                  If we get into an area in which

             14           I believe it is appropriate to

             15           dedesignate the transcript, then I will

             16           so state.  Until then, the transcript

             17           should be designated confidential

             18           pursuant to the protective order in

             19           place in this case.

             20                  MR. GARBUS:  Do you want to state

             21           the basis for that?

             22                  MR. COOPER:  Not particularly,

             23           unless you believe that it is required

             24           under the order.

             25                  MR. GARBUS:  I think you are


                              INTERIM COURT REPORTING

                                                                   9

              1                         Jacobsen

              2           required to do that.

              3                  MR. COOPER:  I disagree with you.

              4           Just so you and I understand each other,

              5           the reasoning is that I believe that the

              6           MPAA's anti-piracy activities are not the

              7           business of the public while those

              8           activities are ongoing and that's the

              9           reason for my designation.

             10           Q.     Has the MPAA filed any specific suit

             11   against any one individual who has actually used

             12   deCSS to descramble a DVD?

             13           A.     I don't --

             14           Q.     Other than the California suit and

             15   this suit where no particular individual is named

             16   as having actually done the copying.

             17                  MR. COOPER:  Would you read back

             18           the question, please.

             19                  (Record read.)

             20                  MR. COOPER:  Objection as to form.

             21           I am not aware of any such California

             22           action.

             23           Q.     Do you know anything about a

             24   California action?

             25           A.     There is not a California action I


                              INTERIM COURT REPORTING

                                                                  10

              1                         Jacobsen

              2   am aware of that we filed.

              3           Q.     Do you know about the DVD action?

              4           A.     Yes.

              5           Q.     Can you tell me whether or not the

              6   MPAA has determined the name of any one person who

              7   has copied a DVD using deCSS?

              8           A.     I think it would be fair to say that

              9   I would be -- that I have no conclusive evidence

             10   that any one person has done that.

             11           Q.     Now, has the MPAA been investigating

             12   that for a period of time, that particular issue?

             13           A.     We have been -- I mean we have

             14   looked at sites on the internet which deal with

             15   deCSS.  Looking at those sites has not resulted in

             16   obtaining any evidence which I would feel

             17   comfortable in saying conclusively proves anyone

             18   has used it to copy a DVD.

             19                  There are individuals who are up on

             20   the internet who claim that that is what it should

             21   be used for and I have read at least one newspaper

             22   article where a reporter claimed that he had, in

             23   fact, used the utility to hack a DVD.

             24           Q.     Have you attempted to contact any of

             25   the people whose names you have seen on the


                              INTERIM COURT REPORTING

                                                                  11

              1                         Jacobsen

              2   internet who say that you can use deCSS to

              3   descramble DVDs?

              4                  MR. COOPER:  Assumes facts not in

              5           evidence.

              6           A.     If they were posting or linking, we

              7   would be sending them a C & D letter or sending the

              8   ISP, Internet Service Provider, a cease and desist

              9   letter.  And if we were able to identify who the

             10   party was that was actually up on the internet, we

             11   would also send a copy of the letter to them.

             12           Q.     Other than cease and desist letters,

             13   did you do anything further?

             14           A.     I don't believe we have.

             15           Q.     Did you get any responses from any

             16   of the cease and desist letters?

             17           A.     Yes, we have received responses.

             18           Q.     Written responses?

             19           A.     Yes.

             20           Q.     And e-mail responses?

             21           A.     Let me take that back.  It may have

             22   been e-mail responses.  I can't recall whether they

             23   came in in written form or in e-mail form.

             24   RQ             MR. GARBUS:  I would ask you to

             25           produce those, Mr. Cooper.


                              INTERIM COURT REPORTING

                                                                  12

              1                         Jacobsen

              2                  MR. COOPER:  I believe we have

              3           already produced a great many and are

              4           continuing to produce anymore that we

              5           find.

              6                  MR. GARBUS:  Thus far the answer

              7           is you produced none.

              8                  MR. COOPER:  I disagree with that,

              9           unless there is some misunderstanding

             10           about what the question elicited.  Are

             11           you saying that you have not received any

             12           of the cease and desist letters?

             13                  MR. GARBUS:  That wasn't the

             14           question.

             15                  MR. COOPER:  Then maybe there is a

             16           misunderstanding.

             17           Q.     Have you received any responses --

             18           A.     Yes.

             19                  MR. COOPER:  Wait.

             20           Q.     -- to the cease and desist letters?

             21                  MR. COOPER:  Let's get a whole

             22           question out.

             23                  MR. GARBUS:  Mr. Cooper, your

             24           witness understood.

             25                  MR. COOPER:  I am not satisfied


                              INTERIM COURT REPORTING

                                                                  13

              1                         Jacobsen

              2           that he did.  What responses are we

              3           talking about?  Are we talking about

              4           specifically C & D letters to people who

              5           came to have used deCSS to decrypt a DVD

              6           and make a copy from it?

              7           A.     No.

              8                  MR. GARBUS:  No.  He said he sent

              9           out cease and desist letters.  I have

             10           asked him with respect to those cease and

             11           desist letters did he receive any

             12           responses.

             13           Q.     You have said "yes"?  Is that

             14   correct?

             15           A.     That's correct.

             16   RQ             MR. GARBUS:  I now ask you to

             17           produce those responses and I tell you that

             18           we have not gotten any responses.

             19                  MR. COOPER:  I have looked at a

             20           number of documents that I understand

             21           have been produced to you which

             22           constitute responses.  It may be a

             23           misunderstanding on your part about what

             24           they consist of, but my understanding is

             25           that many have been provided.  If there


                              INTERIM COURT REPORTING

                                                                  14

              1                         Jacobsen

              2           are more, it is the intent to provide

              3           those, as well.  But what I have looked

              4           at would indicate that you are in error.

              5   BY MR. GARBUS:

              6           Q.     Did you determine whether any of the

              7   people you had sent the cease and desist letters to

              8   had actually copied a DVD using deCSS?

              9           A.     I have no actual knowledge that

             10   anybody has actually copied a DVD using deCSS.  As

             11   I said, I have read at least one newspaper article

             12   where a reporter claimed to do so.

             13           Q.     Tell me about that article.

             14           A.     I just generally remember that the

             15   reporter had utilized the utility to open the DVD,

             16   see how it worked.

             17           Q.     Do you recall what he said about his

             18   success or lack of success in using the utility?

             19           A.     My general recollection is that it

             20   worked, but it was difficult.

             21           Q.     Do you recall how long it took him

             22   to do it?

             23           A.     I don't recall specifically, but I

             24   recall it was lengthy.

             25           Q.     Do you recall him saying whether or


                              INTERIM COURT REPORTING

                                                                  15

              1                         Jacobsen

              2   not he lost the audio when he did it through a

              3   DivX?

              4           A.     I don't.

              5           Q.     Do you recall him indicating whether

              6   or not deCSS caused his computer to crash?

              7           A.     I don't.

              8           Q.     Do you know of anybody who has

              9   applied deCSS where the computer has not crashed?

             10                  MR. COOPER:  Assumes facts not in

             11           evidence.  Answer, if you can.

             12           A.     I don't think I personally know

             13   anyone that has used deCSS.

             14           Q.     At the MPAA, did you ask anybody or

             15   did the MPAA run any tests about the use of deCSS?

             16           A.     Not that I am aware of.

             17           Q.     Did the MPAA ever hire anybody to

             18   perform any tests to see the efficacy of deCSS in

             19   descrambling DVDs?

             20           A.     Not that I am aware of.

             21           Q.     To your knowledge, did any of the

             22   movie studios --

             23                  Let's just make one thing clear so I

             24   think Mr. Cooper and I can agree.  Pending a

             25   disqualification motion, I am not permitted to ask


                              INTERIM COURT REPORTING

                                                                  16

              1                         Jacobsen

              2   about Time Warner.  When I use "movie studios" or

              3   "plaintiffs," I am excluding Time Warner from that

              4   definition.  Can we have that agreement?

              5                  MR. COOPER:  We do have that

              6           agreement, yes.

              7           Q.     So anything you know about Time

              8   Warner, don't tell me.  In any way that Time Warner

              9   is different from any question or answer, don't

             10   tell me.

             11                  We have that agreement?

             12                  MR. COOPER:  We do have that

             13           agreement.

             14                  MR. GARBUS:  Off the record.

             15                  (Question read.)

             16           Q.     -- test deCSS to see whether or not

             17   it can be used to descramble a DVD?

             18           A.     I don't know.

             19           Q.     Now, you know what the broadband is?

             20           A.     Generally.

             21           Q.     Tell me what it is.

             22           A.     Broadband is a large volume capacity

             23   on the internet.  It is the ability to transmit

             24   huge amounts of data in a very fast period of time.

             25           Q.     How long has the broadband been with


                              INTERIM COURT REPORTING

                                                                  17

              1                         Jacobsen

              2   us?

              3                  MR. COOPER:  Lacks foundation.

              4           This witness, for the record, is not

              5           designated to testify about matters of

              6           general technology.

              7           A.     I don't know.

              8           Q.     To your knowledge, has a descrambled

              9   DVD ever been shown on the internet?  One that has

             10   been descrambled through deCSS.

             11           A.     I don't know of -- I have no

             12   specific knowledge of that occurring.

             13           Q.     To your knowledge, has anyone ever

             14   tried to transmit a descrambled DVD, descrambled

             15   through deCSS on the broadband?

             16                  MR. COOPER:  Assumes facts not in

             17           evidence.

             18           A.     I have no information that that has

             19   ever occurred.

             20           Q.     To your knowledge, has anyone ever

             21   tried to send a descrambled DVD, one that has been

             22   descrambled through deCSS, on a T1 line?

             23           A.     I have no knowledge.

             24                  MR. COOPER:  Same objection.

             25           Q.     Do you know what a T1 line is?


                              INTERIM COURT REPORTING

                                                                  18

              1                         Jacobsen

              2           A.     Generally.

              3           Q.     What is it?

              4           A.     It is a large capacity pipe which

              5   would allow you to send a lot of data in a quick

              6   period of time.

              7           Q.     Would your answer be the same with

              8   respect to a T3 line?

              9                  MR. COOPER:  Same objection.

             10           A.     Yes.

             11           Q.     With respect to a DSL line, do you

             12   know if anyone has ever used a DSL line to send a

             13   descrambled DVD, descrambled through deCSS?

             14                  MR. COOPER:  I don't know how

             15           anybody could know the method of

             16           transport that a particular user of the

             17           internet uses.  This witness isn't

             18           designated to testify as to such matters,

             19           but I will let him answer if he knows.

             20           A.     I don't know of any such instance.

             21           Q.     With respect to what Mr. Cooper

             22   said, namely that you can't tell the line of

             23   communication over which a descrambled DVD might

             24   pass, is there anyone at the MPAA who has tried to

             25   monitor that?  Namely, whether descrambled DVDs,


                              INTERIM COURT REPORTING

                                                                  19

              1                         Jacobsen

              2   descrambled through deCSS, are going out over any

              3   of these DSL, T1, T3, or broadband?

              4           A.     I'm sorry.  I lost the first part of

              5   the question.

              6                  MR. GARBUS:  Read back the

              7           question.

              8                  (Record read.)

              9           A.     If I understand the question, I

             10   don't know if there is anybody at MPAA or MPA who

             11   could determine what the source of transmission

             12   was.

             13           Q.     Is there anyone at any of the movie

             14   studios or plaintiffs who can?

             15           A.     I don't know that answer.

             16           Q.     Do you know if they have?

             17           A.     I don't.

             18           Q.     Do you know if they have tried to?

             19           A.     I don't.

             20           Q.     Do you know if anyone at the movie

             21   studios has ever seen a descrambled DVD,

             22   descrambled through deCSS, on the internet?

             23                  MR. COOPER:  I caution the witness

             24           to distinguish, in responding to this,

             25           between privileged and unprivileged


                              INTERIM COURT REPORTING

                                                                  20

              1                         Jacobsen

              2           sources of information, and not to

              3           provide a response with respect to

              4           privileged sources.

              5           A.     I don't.

              6           Q.     With respect to seeing a DVD

              7   descrambled through deCSS on the internet, do you

              8   know whether anyone at the movie studios or the

              9   MPAA has tried to send such a DVD over the

             10   internet?

             11           A.     I do not.

             12           Q.     Do you know whether anyone at the

             13   movie studios has ever learned the name of one

             14   single person who has attempted to copy a DVD

             15   through the descrambling by deCSS?

             16           A.     I don't know.

             17           Q.     Do you know if the movie companies

             18   have done any investigation into that question?

             19           A.     Independently of MPAA?

             20           Q.     Yes.

             21           A.     I'm not sure I understand the

             22   question.

             23  

             24                  Confidential                        

             25  


                              INTERIM COURT REPORTING

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              2  

              3  

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                              INTERIM COURT REPORTING

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              1                     Confidential  

              2  

              3  

              4  

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             10  

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                              INTERIM COURT REPORTING

                                                                  24

              1                     Confidential  

              2  

              3  

              4  

              5  

              6  

              7  

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              9  

             10  

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                              INTERIM COURT REPORTING

                                                                  25

              1                         Jacobsen

              2     

              3                     Confidential     

              4     

              5     

              6     

              7     

              8     

              9     

             10     

             11     

             12     

             13     

             14     

             15     

             16     

             17     

             18     

             19     

             20   

             21   

             22   

             23           Q.     Putting aside any conversations

             24   where you were involved with your lawyers or the

             25   MPAA lawyers or the lawyers for any of the


                              INTERIM COURT REPORTING

                                                                  26

              1                         Jacobsen

              2   plaintiffs in this case, did you have any

              3   conversations with any people at any of those

              4   studios who had ever known of one single instance

              5   of DVDs being descrambled through deCSS and a copy

              6   thereafter being made?

              7           A.     No.

              8           Q.     Have you asked these plaintiffs that

              9   question?  Namely, whether or not they knew of any

             10   single instance of a DVD being descrambled to make

             11   a copy, with the exception of any conversations

             12   that any lawyers were in any way involved in?

             13           A.     If I understand the question, you

             14   are asking me if I asked it outside of the context

             15   of a possible privilege?  No.

             16           Q.     Have you ever seen any documents

             17   from any of the plaintiffs that indicate whether or

             18   not they know of one single DVD being descrambled

             19   by deCSS?

             20           A.     No.

             21           Q.     Do you know whether they have such

             22   documents?

             23           A.     No.

             24           Q.     Do you know if they have ever made

             25   their own investigation into whether or not deCSS


                              INTERIM COURT REPORTING

                                                                  27

              1                         Jacobsen

              2   was ever used for descrambling a DVD?

              3           A.     No.

              4           Q.     After you saw the Toronto article,

              5   was there any attempt made by you or anyone acting

              6   on your behalf to contact the Toronto reporter?

              7                  MR. COOPER:  Assumes facts not in

              8           evidence.  I don't remember the witness

              9           identifying the Toronto article.

             10                  MR. GARBUS:  He did.

             11                  MR. COOPER:  As such, I think the

             12           witness testified that there was an

             13           article.

             14           Q.     Do you know where the article was?

             15           A.     I read it off the internet, but I

             16   don't recall which paper it was.

             17           Q.     Did you at any time try to contact

             18   the author of that article?

             19           A.     I did not.

             20           Q.     Do you know anybody at any of the

             21   plaintiffs or anybody acting on your behalf that

             22   did?

             23           A.     No.

             24           Q.     Did you try to determine whether or

             25   not after that article was printed anybody reading


                              INTERIM COURT REPORTING

                                                                  28

              1                         Jacobsen

              2   that article sought to descramble DVDs through

              3   using deCSS?

              4           A.     I do not, no.

              5           Q.     Can you just tell me approximately,

              6   in round numbers, the dollar value of the resources

              7   that the MPAA has used to determine whether or not

              8   deCSS is an effective descrambling tool for DVDs?

              9           A.     I'm not aware of any money we have

             10   spent to test whether or not it effectively

             11   descrambles.

             12           Q.     Have you -- by "you" I mean you or

             13   the MPAA -- produced or prepared any documents

             14   concerning the amount of the use of deCSS over any

             15   communication system, whether it be T1, T3, DSL, or

             16   broadband at any time in the future?

             17                  MR. COOPER:  Read back the

             18           question, please.

             19                  (Record read.)

             20                  MR. COOPER:  I object as to the

             21           form of the question.  Unintelligible and

             22           ambiguous.

             23           Q.     Do you understand it?

             24           A.     No.

             25           Q.     Have there been any projections made


                              INTERIM COURT REPORTING

                                                                  29

              1                         Jacobsen

              2   orally or in writing by you or anyone at the MPAA

              3   for the potential use of deCSS to make copies of

              4   DVDs in the future?

              5                  MR. COOPER:  That's a "yes" or

              6           "no" question.

              7           A.     Not that I am aware of.  No.

              8           Q.     Have there been any studies made to

              9   determine the potential use on the broadband of

             10   individuals attempting to descramble DVDs through

             11   the use of deCSS?

             12           A.     I'm sorry, but I didn't understand

             13   the question.

             14                  MR. GARBUS:  Read the question

             15           back.

             16                  (Record read.)

             17           A.     Studies by who?  I'm sorry.

             18           Q.     You.

             19           A.     Regarding the attempted use?

             20           Q.     For example, is there any document

             21   which would say, we expect that over the broadband

             22   in the next ten years or the next one year, that

             23   deCSS will be transmitted and we may see X number

             24   of DVDs unscrambled in that way?

             25           A.     No.


                              INTERIM COURT REPORTING

                                                                  30

              1                         Jacobsen

              2           Q.     In other words, let me just make it

              3   clear what I am talking about.  I will give you the

              4   general scope.

              5                  I am now trying to look towards the

              6   future and I am trying to determine whether or not

              7   you, the MPAA, the movie studios, have any

              8   documents or any oral conversations you can tell me

              9   about, about the potential impact of actual copies

             10   of DVDs that are unscrambled through deCSS.  Are

             11   there such studies?

             12           A.     Not that I am aware of.

             13                  MR. COOPER:  Your question

             14           included oral discussions and then the

             15           clarification at the end, studies.  You

             16           are looking at studies?

             17           Q.     Let's look at three things.  Oral

             18   conversations where lawyers are involved, oral

             19   conversations where no lawyers are involved, and

             20   then any studies or reports concerning that subject

             21   matter.

             22           A.     Okay.

             23           Q.     Are there any studies that you have

             24   seen done by the MPAA or any of the other

             25   plaintiffs concerning the future use, potential use


                              INTERIM COURT REPORTING

                                                                  31

              1                         Jacobsen

              2   of deCSS to copy DVDs?

              3           A.     No.

              4           Q.     I ask you the same thing with

              5   respect to reports.

              6           A.     No.

              7           Q.     I ask you the same thing with

              8   respect to oral conversations that take place

              9   without lawyers being around or involved.

             10           A.     No.

             11           Q.     Do you know what a DVD burner is?

             12           A.     I have a general understanding.

             13           Q.     What is your general understanding?

             14           A.     It would be a device which would

             15   allow you to copy a DVD from your hard drive.

             16           Q.     Have there been any studies made by

             17   you -- let's save some time.

             18                  When I say "you" now, I am talking

             19   about you, the MPAA, or the movie, that you know

             20   of.  Every time I use the word "you," then, in the

             21   next few questions, it implies that entire

             22   universe.

             23                  MR. GARBUS:  Read back my question

             24           so far.

             25                  (Record read.)


                              INTERIM COURT REPORTING

                                                                  32

              1                         Jacobsen

              2           Q.     -- as to the potential future use of

              3   DVD burners to copy DVDs?

              4           A.     The fact that a DVD burner may exist

              5   or will exist has been the subject of discussion.

              6           Q.     Do you know if it exists today?

              7           A.     I believe that it has been

              8   developed, yes.

              9           Q.     Do you know what they cost?

             10           A.     I don't know precisely, but my

             11   understanding is they are still quite expensive.

             12           Q.     Between $5,000 and $10,000?

             13           A.     Possibly.

             14           Q.     Have you made any studies or reports

             15   or had any oral conversations, excluding oral

             16   conversations where lawyers are present, discussing

             17   the potential use of DVD burners to show copies of

             18   DVDs?

             19           A.     I don't understand the question,

             20   because I don't understand a burner that would be

             21   something that would show a copy of a DVD.

             22           Q.     What does a burner do?

             23           A.     Makes a copy of a DVD.

             24           Q.     Do you have any studies -- by "you"

             25   I mean all the plaintiffs -- about the potential


                              INTERIM COURT REPORTING

                                                                  33

              1                         Jacobsen

              2   copies that can be made in the future through the

              3   use of DVD burners?

              4           A.     I don't know of any specific written

              5   reports or studies.

              6           Q.     Do you have any knowledge of any

              7   individual consumers using DVD burners to make a

              8   single copy for themselves of a DVD?

              9           A.     No.

             10           Q.     Have you or the MPAA retained any

             11   outside experts on the deCSS question, other than

             12   Robert Schumann?

             13           A.     Can I --

             14                  MR. COOPER:  Can you answer that

             15           question from general knowledge?  That

             16           is, other than from what you have

             17           discussed with attorneys.

             18                  THE WITNESS:  I think I probably

             19           cannot.

             20   BY MR. GARBUS:

             21           Q.     So you can't tell me, as you sit

             22   here today, whether or not the MPAA has retained

             23   any other experts with respect to the deCSS area?

             24                  MR. COOPER:  From nonprivileged

             25           sources?


                              INTERIM COURT REPORTING

                                                                  34

              1                         Jacobsen

              2                  MR. GARBUS:  From nonprivileged

              3           sources.

              4           Q.     Is that right?

              5           A.     That's correct.

              6           Q.     Have you seen any exchange of

              7   correspondence, excluding privileged documents, if

              8   in fact a privilege applies, between the MPAA and

              9   any of the studios concerning the use of deCSS?

             10           A.     I'm sorry.  Could you repeat the

             11   first part of the question?

             12                  MR. GARBUS:  Read it back.

             13                  (Record read.)

             14                  MR. COOPER:  Read it back.

             15                  (Record read.)

             16           A.     Excluding privileged documents, no.

             17           Q.     When you say "privileged documents,"

             18   are you referring to documents exchanged directly

             19   by the MPAA with lawyers and documents exchanged

             20   between the movie studios and lawyers or you are

             21   also referring to documents exchanged between the

             22   movie studios and the MPAA without lawyers?

             23                  MR. COOPER:  Do you understand the

             24           question?

             25                  THE WITNESS:  Yes, I understand


                              INTERIM COURT REPORTING

                                                                  35

              1                         Jacobsen

              2           the question.

              3           A.     I am referring to documents -- the

              4   two former that you set up.  Documents between

              5   lawyers and the studios and the studios and the

              6   lawyers.

              7           Q.     Have you seen any documents between

              8   the MPAA and the studios, nonlawyer documents, that

              9   refer in any way to deCSS?

             10           A.     Not that I can recall.

             11                  MR. GARBUS:  Let's mark this as

             12           the next exhibit.

             13                  (Defendants' Exhibit 11, three-page

             14           letter, dated May 15, 2000, marked for

             15           identification, as of this date.)

             16   RQ             MR. GARBUS:  Mr. Cooper, I show you

             17           Defendant's Exhibit 11, which is addressed

             18           to Carla Miller, copied to Leon Gold.  We

             19           had a conversation Monday about the

             20           production of documents for today and he

             21           asked that we send him a letter and I asked

             22           whether or not you have any of those

             23           documents here with you today.

             24                  MR. COOPER:  My understanding of

             25           the conversation that led up to this


                              INTERIM COURT REPORTING

                                                                  36

              1                         Jacobsen

              2           letter is a little different than what

              3           you just described.  My understanding was

              4           that Mr. Gold made a general suggestion

              5           to you, that you give an itemization of

              6           documents you were seeking and offered to

              7           respond to that itemization.  I didn't

              8           understand the conversation to be

              9           directly focused on this witness'

             10           appearance here today or that the

             11           documents described would be provided

             12           today.

             13                  I note, although this is the

             14           first time I have seen the letter

             15           personally, that most of them focus on

             16           Mr. Schumann's testimony as opposed to

             17           Mr. Jacobsen's.  I do not have any

             18           additional documents to produce in

             19           response to this letter as we sit here.

             20                  Now that you have drawn it to my

             21           attention, I will investigate where we

             22           stand in response to it and I will let

             23           you know.

             24                  MR. GARBUS:  Thank you very much.

             25   BY MR. GARBUS:


                              INTERIM COURT REPORTING

                                                                  37

              1                         Jacobsen

              2           Q.     Were you involved in any way in the

              3   preparation of the cease and desist letters?

              4           A.     In my position, I have general

              5   oversight authority for the fact that we have a

              6   program that would send cease and desist letters.

              7   But no, the actual construction of the letter

              8   itself would have been done by our attorneys.

              9           Q.     Proskauer?

             10           A.     No.  Our in-house attorneys.

             11   Mr. Litvack would have overseen the project.

             12           Q.     You are the senior vice president

             13   and director for worldwide anti-piracy; is that

             14   right?

             15           A.     That is correct.

             16           Q.     Are you a lawyer?

             17           A.     Yes, I am.

             18           Q.     How long have you been practicing?

             19                  MR. COOPER:  Assumes facts not in

             20           evidence.  Answer it.

             21           A.     I actually have never practiced.

             22                  MR. GARBUS:  Off the record.

             23                  (Discussion off the record.)

             24   BY MR. GARBUS:

             25           Q.     How long have you been at the MPAA?


                              INTERIM COURT REPORTING

                                                                  38

              1                         Jacobsen

              2           A.     I have been employed by the MPAA

              3   since January 2nd of 1995.

              4           Q.     Can you tell me generally what your

              5   duties include?

              6                  MR. COOPER:  Today or from the

              7           beginning?

              8                  MR. GARBUS:  Today.

              9           A.     Today I have oversight

             10   responsibility for our entire worldwide anti-piracy

             11   program.  We are active in approximately 67

             12   countries and I have responsibility for overseeing

             13   how that program runs, the strategies that are

             14   developed, the budget that is put together and

             15   submitted to the members on an annual basis for

             16   funding, correspondence about the program to the

             17   member companies and their representatives, hiring

             18   and firing.  All of the management decisions that

             19   are made regarding that program.

             20 

             21 

             22                     Confidential 

             23 

             24 

             25 


                              INTERIM COURT REPORTING

                                                                  39

              1 

              2 

              3 

              4                     Confidential 

              5 

              6 

              7 

              8 

              9 

             10 

             11 

             12 

             13 

             14 

             15 

             16 

             17 

             18 

             19 

             20 

             21 

             22 

             23 

             24 

             25 


                              INTERIM COURT REPORTING

                                                                  40

              1                     Confidential  

              2  

              3  

              4  

              5  

              6  

              7  

              8  

              9  

             10  

             11  

             12  

             13  

             14  

             15  

             16  

             17  

             18  

             19  

             20  

             21  

             22  

             23  

             24  

             25  


                              INTERIM COURT REPORTING

                                                                  41

              1                     Confidential  

              2  

              3  

              4  

              5  

              6  

              7  

              8  

              9  

             10  

             11  

             12           Q.     How long have you had this position?

             13           A.     I was promoted the 1st of April of

             14   this year and I occupied the position sort of co

             15   with my predecessor until he left April 21st, and

             16   then I took over.

             17           Q.     Prior to that what was your

             18   position?

             19           A.     Prior to that, for two years I was

             20   the vice president and director of the U.S.

             21   anti-piracy program.

             22           Q.     In all that time, have any one of

             23   these people who were your employees ever told you

             24   that they had ever seen a copy of a DVD descrambled

             25   by deCSS?


                              INTERIM COURT REPORTING

                                                                  42

              1                         Jacobsen

              2                  MR. COOPER:  Exclude from that

              3           those people who operate as attorneys, as

              4           you have described them.

              5           A.     Not conclusively.

              6           Q.     When you say "not conclusively," did

              7   any one of them ever tell you that they had learned

              8   the name of one single person who had ever copied a

              9   DVD through the use of the descrambling --

             10   descrambling through deCSS?

             11                  MR. COOPER:  Asked and answered.

             12                  MR. GARBUS:  Different question.

             13           A.     Not conclusively, no.

             14           Q.     When you say "not conclusively," did

             15   you ask your office -- and by "your office" I mean

             16   either the office you held before April 1st or the

             17   people under your direction after April 1st.

             18                   -- whether they could find a single

             19   copy of a DVD that had been descrambled through

             20   deCSS or the name of a single individual who had

             21   used deCSS who descrambled a DVD?

             22                  MR. COOPER:  Could I just, just

             23           for simplicity so I don't interrupt your

             24           questions and the witness' answer, can we

             25           have a running understanding that you


                              INTERIM COURT REPORTING

                                                                  43

              1                         Jacobsen

              2           mean to exclude the conversations with

              3           those people the witness has identified

              4           as operating as attorneys?

              5                  MR. GARBUS:  Absolutely.

              6           A.     I have never asked the question in

              7   that fashion.

              8           Q.     What is the question that you have

              9   asked?

             10           A.     I have asked people that are in our

             11   employment structure whether or not they can

             12   identify the source of unauthorized DVDs that we

             13   have located.

             14           Q.     Has anyone ever told you that deCSS

             15   was the source?

             16           A.     Conclusively?  No.

             17           Q.     Have you tried to make a conclusive

             18   determination as to whether or not any of these

             19   copies of DVDs came from the use of deCSS?

             20           A.     In every instance where we analyze

             21   for source we would try to make a determination

             22   about what the original source of the product would

             23   be, deCSS would be one of those possibilities.

             24           Q.     And you never were able to determine

             25   that one single one ever came through deCSS?


                              INTERIM COURT REPORTING

                                                                  44

              1                         Jacobsen

              2           A.     To be perfectly honest, I am not

              3   even certain that that can be done.  We don't

              4   know -- I don't know whether or not deCSS leaves an

              5   identifiable mark when it is used to descramble a

              6   DVD.  But we are, in fact, looking at some DVDs and

              7   trying to make a determination about what the

              8   source is.

              9           Q.     Just going back, at the present

             10   time, you can't tell me that you have seen one copy

             11   of a DVD that has definitely been made as a result

             12   of the deCSS descrambling?

             13           A.     That's correct.

             14           Q.     At the present time, you can't tell

             15   me that you know the name of one person who has

             16   descrambled a DVD through deCSS to make a copy?

             17           A.     I know people have claimed that.  I

             18   cannot conclusively tell you that what they are

             19   claiming is accurate.

             20           Q.     Other than the claims and other than

             21   the article in the newspaper, do you know the name

             22   of one person who you have determined has made such

             23   a copy?

             24           A.     No.

             25           Q.     When you say "people claim," you are


                              INTERIM COURT REPORTING

                                                                  45

              1                         Jacobsen

              2   talking about people who claim this in internet

              3   postings?

              4           A.     That is correct.

              5           Q.     Did the internet postings frequently

              6   give you the name of the poster who posts that

              7   information?

              8                  MR. COOPER:  Those particular

              9           postings?

             10                  MR. GARBUS:  Yes.

             11           A.     It would depend.

             12           Q.     Sometimes you know personally the

             13   site from which it comes?

             14           A.     That would be correct.

             15           Q.     Have you ever gone to the site or

             16   tried to further investigate into those people who

             17   claim, according to you, that they have made DVDs

             18   through the use of deCSS descramblers?

             19           A.     I think one of the original

             20   defendants in this case claimed that on his

             21   website.

             22           Q.     Claimed that he had made it?

             23           A.     Yes.  Or that copies were being

             24   made.

             25           Q.     He claimed that copies were being


                              INTERIM COURT REPORTING

                                                                  46

              1                         Jacobsen

              2   made.  Did you ever determine whether that was true

              3   or not?

              4           A.     No.

              5           Q.     In other words, did you ever make a

              6   distinction or did you ever determine the

              7   difference between rhetoric, bragging, polemics,

              8   and the actual making of a copy of a DVD through

              9   the use of deCSS?

             10                  MR. COOPER:  I object to the

             11           characterization and the form of the

             12           question.  I'm not sure it is a fair

             13           characterization of what the witness has

             14           referred to, to refer to it as rhetoric,

             15           polemics, and so on.

             16                  If the question is has the

             17           witness distinguished or attempted to

             18           distinguish between names and copying,

             19           in fact, I think you can answer that

             20           question.

             21           Q.     Go ahead.

             22           A.     I'm sorry.  Was the question have I

             23   attempted to distinguish or have I been able to?

             24                  MR. GARBUS:  We will take it with

             25           Mr. Cooper's modification.


                              INTERIM COURT REPORTING

                                                                  47

              1                         Jacobsen

              2           A.     Which is attempted?

              3                  MR. GARBUS:  Read back the whole

              4           conversation.

              5                  (Record read.)

              6           A.     I have been unable to determine

              7   whether or not any copies were actually made or

              8   people were just claiming to do it without having

              9   done so.

             10           Q.     Did anyone on any of these postings

             11   give you the specific name of a film or DVD that

             12   they had succeeded in descrambling through the use

             13   of deCSS?

             14           A.     I don't recall.

             15           Q.     Would your recollection be that they

             16   spoke in general terms and said, "I've done it" or

             17   "I will do it" or "You can do it," rather than

             18   saying I have done it with respect to a particular

             19   film, on a particular date, in a particular place?

             20                  MR. GARBUS:  Off the record.

             21                  (Discussion off the record.)

             22           A.     I don't recall.

             23           Q.     Do you recall the name of one single

             24   title that anyone has ever claimed they have ever

             25   been able to copy through the use of deCSS?


                              INTERIM COURT REPORTING

                                                                  48

              1                         Jacobsen

              2                  MR. COOPER:  I'm not sure how to

              3           distinguish that from your prior

              4           question.

              5           A.     No.

              6           Q.     With respect to the people who have

              7   used what I have called polemics, have you

              8   determined through investigation the names of these

              9   people and where they live?

             10           A.     If you are asking me the people that

             11   have shown up on the web who have made these

             12   claims, the answer is we have not determined who

             13   they are or where they live, to my knowledge.

             14           Q.     Have you attempted to do so?

             15                  MR. COOPER:  You are

             16           distinguishing the current defendant

             17           which the witness has already said they

             18           identified and who he believed to have

             19           made some such claims?

             20                  MR. GARBUS:  Emmanuel Goldstein?

             21                  MR. COOPER:  Eric Corley.

             22                  MR. GARBUS:  Off the record.

             23                  (Discussion off the record.)

             24                  MR. GARBUS:  Where are we?

             25                  (Record read.)


                              INTERIM COURT REPORTING

                                                                  49

              1                         Jacobsen

              2                  MR. COOPER:  Exclude conversations

              3           with counsel as a source for the answer

              4           to that last question.

              5           A.     If they were the target of a C & D

              6   letter or a cease and desist letter, we would have

              7   done some preliminary investigation to see if we

              8   can determine an address where we can send a copy

              9   of the letter to.

             10                  MR. COOPER:  Is this an

             11           appropriate time to take a brief break?

             12                  MR. GARBUS:  If you would like.

             13                  (Recess taken.)

             14                  MR. GARBUS:  Please mark this as

             15           an exhibit.

             16                  (Defendants' Exhibit 12, four-page

             17           document titled "1st Story of Level 1

             18           printed in Full Format, Copyright 2000

             19           Toronto Star Newspapers, Ltd. The Toronto

             20           Star," marked for identification, as of

             21           this date.)

             22                  (Recess taken.)

             23   BY MR. GARBUS:

             24           Q.     Mr. Jacobsen, do you know of any

             25   technology now known but not yet created or


                              INTERIM COURT REPORTING

                                                                  50

              1                         Jacobsen

              2   anticipated that can use deCSS to descramble DVDs?

              3                  MR. COOPER:  Would you read back

              4           the question.

              5                  (Record read.)

              6           Q.     -- and make copies?

              7                  MR. COOPER:  I find the question

              8           terribly confusing.  I think it assumes

              9           facts not in evidence.

             10           Q.     Go ahead.

             11           A.     I don't understand the question,

             12   because my understanding is deCSS allows you to

             13   decrypt a DVD and then copy it to your hard drive.

             14           Q.     Once it is on the hard drive, it is

             15   on the hard drive in descrambled form or scrambled

             16   form?

             17           A.     I believe it's in the unscrambled

             18   form.

             19           Q.     So you believe that once it goes

             20   onto your hard drive you can immediately show it on

             21   your video monitor?

             22                  MR. COOPER:  This witness is not

             23           here to testify on the technical aspects

             24           of deCSS.

             25           Q.     Is that your understanding?


                              INTERIM COURT REPORTING

                                                                  51

              1                         Jacobsen

              2           A.     That is my understanding.

              3           Q.     So that once you put it on your hard

              4   drive it is there and all you have to do is push a

              5   button and you can watch it on your computer?

              6                  MR. COOPER:  That probably

              7           misstates the technological aspects of

              8           what it requires to make it happen and

              9           this witness is not here for this

             10           purpose.

             11           Q.     Go ahead.

             12           A.     I misspoke.  I mean there would have

             13   to be some sort of media player associated with the

             14   computer.  But my understanding is if it is an

             15   unscrambled format, you would need a software

             16   program that would allow you to play it on a

             17   computer.

             18           Q.     What kind of software program would

             19   that be?

             20           A.     A media player, Windows media

             21   player.

             22           Q.     Other than the broadband lines, the

             23   T1 lines, the T3 lines or the DSL, or the regular

             24   telephone lines, do you know of any other method of

             25   transmission of deCSS to unscramble DVDs?


                              INTERIM COURT REPORTING

                                                                  52

              1                         Jacobsen

              2                  MR. COOPER:  Again, this witness

              3           isn't here to testify on the

              4           technological matters.  I think you have

              5           misstated the function of deCSS and

              6           misstated, as well, what the various

              7           methods of transmission for access to the

              8           internet are.  With those objections, if

              9           the witness can answer the question, I

             10           will allow him to do so.

             11           A.     I didn't understand the question.

             12           Q.     Other than DSL lines, telephone

             13   lines, T1, T3, or the broadband, do you know of any

             14   other technology that permits for the sending of

             15   decrypted DVD movies?

             16           A.     Sending them where?  I don't

             17   understand the question.

             18           Q.     From one person to another.

             19           A.     Computer to computer?

             20           Q.     Yes.

             21           A.     I mean I would suppose there is no

             22   reason why someone couldn't put it on a disk and

             23   put it into your computer disk to disk.  I don't

             24   know the answer.

             25           Q.     There are various different ways or


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              1                         Jacobsen

              2   cables or pathways that you can have piracy on.

              3   One of the present pathways are DSL, another one is

              4   T1, another one is T3, another one is broadband.

              5                  Can you tell me whether there is any

              6   other pathway that you know of?

              7                  MR. COOPER:  You have used a

              8           variety of different references as you

              9           have asked this question.  I will note

             10           that my understanding of broadband might

             11           differ from yours.

             12                  MR. GARBUS:  We might call

             13           broadband T3.

             14           Q.     Whatever interpretation you take of

             15   broadband, can you answer that question?  If you

             16   want to give me several different interpretations

             17   of broadband, just give it to me.

             18           A.     There is a whole developing field of

             19   wireless communication that you didn't mention,

             20   which I assume would be a method to also transmit

             21   information from computer to computer.

             22           Q.     Thus far, have you determined

             23   whether or not decrypted DVD movies have been sent

             24   over the wireless?

             25           A.     I have not.


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              1                         Jacobsen

              2           Q.     Do you know if that is possible?

              3                  MR. COOPER:  To determine --

              4                  MR. GARBUS:  -- whether that can

              5           be done.

              6           A.     I would assume it would be possible

              7   to determine.  It could be done.  I don't have the

              8   technical ability myself to make that

              9   determination.

             10           Q.     Has anyone at the MPAA, to your

             11   knowledge, made any technological determination

             12   with the use of the wireless with respect to

             13   decrypted DVD movies?  How long it would take, how

             14   it would be done, or any of the mechanics of it.

             15                  MR. COOPER:  Assumes facts not in

             16           evidence.

             17           Q.     Go ahead, Mr. Jacobsen.

             18           A.     If you are asking me if I know of

             19   any studies that have been undertaken to determine

             20   how long it would take to transmit from one

             21   computer to another, the answer is know.

             22           Q.     Let me show you Exhibit 12 and ask

             23   whether or not that is the article that you saw.

             24           A.     (Witness reviewed document.)

             25                  I'm not 100 percent sure, but it


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              1                         Jacobsen

              2   could be.  I mean it rings a bell.

              3           Q.     Do you want to just take a look at

              4   it for another minute?

              5           A.     (Witness complied with request.)

              6           Q.     Is this the article that you read?

              7           A.     I don't remember.  It could be.

              8           Q.     This article is dated May 4th,

              9   according to the printout that I have.  Is this the

             10   first time that you learned that anybody had tried

             11   to use deCSS to make a copy of a DVD?  I believe

             12   that was your testimony before, that the first time

             13   you ever heard of anyone actually trying to make a

             14   copy was when you saw the article.

             15                  MR. COOPER:  First of all, the

             16           witness can't identify this as the

             17           article, so the reference to the date

             18           isn't terribly meaningful.  But I think,

             19           as well, you are misunderstanding his

             20           prior testimony.

             21   BY MR. GARBUS:

             22           Q.     Go ahead, Mr. Jacobsen.  Why don't

             23   you again straighten us both out.

             24           A.     I think what I said was I read an

             25   article by a news reporter who claimed he had done


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              1                         Jacobsen

              2   it and I have also been made aware of website

              3   locations or internet locations where people make

              4   the same claim.  Perhaps not in the detail that the

              5   reporter did, but claiming they have done it.

              6           Q.     And in the website where people

              7   claim that they have done it, have they told you,

              8   do you remember, anything about how long it took

              9   them to do it?

             10           A.     I don't recall.

             11           Q.     Do you recall whether they say they

             12   did it successfully?

             13           A.     I don't recall that that discussion

             14   occurred.  It is just the statement that it had

             15   been done.

             16           Q.     Do you recall anything about the

             17   quality of the DVD that they claim had been copied?

             18           A.     I don't.

             19           Q.     Can you produce copies or any

             20   information concerning those websites?

             21           A.     Well, the one, as I did state, was a

             22   prior defendant in this case, Mr. Reimerdes, he had

             23   posted it on his --

             24           Q.     Other than Mr. Reimerdes, do you

             25   know of anyone else who has ever claimed to have


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              1                         Jacobsen

              2   done it?

              3           A.     I have not actually seen the sites

              4   myself.  I have been informed by members of my

              5   staff that those claims have been made.

              6           Q.     Have you downloaded the printed

              7   material from those sites?

              8           A.     I have not.

              9           Q.     Has your staff?

             10           A.     I don't know that answer.

             11   RQ      Q.     Will you find that out?  And if you

             12   have, will you please give me the printed material?

             13   If you don't have the printed material, will you

             14   give me any other documentation that you have

             15   indicating the names of the websites, the names of

             16   the people, if you have them, who allegedly claim

             17   that you can do it or should do it or had done it,

             18   and their addresses?

             19                  MR. COOPER:  We will take the

             20           request under advisement.

             21           Q.     So as you sit here today, the only

             22   person that you know who ever claimed that they had

             23   copied a DVD through deCSS is Reimerdes; is that

             24   right?

             25           A.     And apparently the reporter in this


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              1                         Jacobsen

              2   (indicating).

              3           Q.     Two people.

              4                  MR. COOPER:  The witness was

              5           referencing Exhibit 12.

              6           Q.     Do you know whether Reimerdes had

              7   actually ever done it?

              8           A.     I do not.

              9           Q.     Did anyone ever question him to see

             10   whether he had done it?

             11           A.     I don't know.

             12           Q.     So you don't know whether, again, he

             13   was exaggerating or distorting it or whether he had

             14   actually done it?

             15           A.     That's correct.

             16

             17

             18                     Confidential

             19

             20

             21

             22

             23

             24

             25


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              1                     Confidential

              2

              3

              4

              5

              6

              7

              8

              9

             10

             11

             12

             13

             14

             15

             16

             17

             18

             19

             20

             21

             22

             23

             24

             25


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              1                     Confidential

              2

              3

              4

              5

              6

              7

              8

              9

             10

             11

             12

             13

             14

             15

             16

             17

             18

             19

             20

             21

             22

             23           Q.     But you can tell me that in trying

             24   to determine the source of all of the pirated

             25   copies that the MPAA has seen, you are able to say


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              1                         Jacobsen

              2   conclusively that any one copy ever came from a

              3   deCSS?

              4                  MR. COOPER:  That he has

              5           previously answered.

              6           Q.     Is that right?

              7           A.     That is correct.

              8           Q.     How long have you been trying to

              9   determine the sources of pirated material?  I

             10   presume for as long as you have been involved in

             11   this venture of anti-piracy.

             12           A.     Your presumption would be correct.

             13   In the five years, five plus months that I have

             14   worked there, that has always been something that I

             15   have tried to do.

             16           Q.     So it is fair to say that in the

             17   last year, to your knowledge, no one has been ever

             18   able to attribute a copied DVD to a deCSS source?

             19                  MR. COOPER:  I think your use of

             20           it, the last year of your time frame is

             21           misleading.  I am not aware that deCSS

             22           has existed for a year.

             23           Q.     To your knowledge, how long has

             24   deCSS existed?

             25           A.     I became aware of it either in


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              1                         Jacobsen

              2   October or November of 1999.

              3           Q.     Since October or November of 1999,

              4   have you ever determined that one single copy has

              5   ever been made through the use of deCSS?

              6                  MR. COOPER:  Asked and answered.

              7           A.     I have no conclusive evidence that

              8   has ever occurred.

              9           Q.     When you say "conclusive," do you

             10   have any inconclusive evidence?

             11                  MR. COOPER:  Asked and answered.

             12           Q.     The only inconclusive evidence is

             13   the newspaper article?

             14                  MR. COOPER:  Mischaracterizes the

             15           witness' testimony.

             16           Q.     What is the inconclusive evidence?

             17                  MR. COOPER:  Asked and answered.

             18           A.     Would be claims made by people that

             19   they have done so.

             20   RQ             MR. GARBUS:  Mr. Cooper, we

             21           anticipate going to trial in this case.  I

             22           would ask that if between now and the trial

             23           of that case there is any information about

             24           deCSS as a source of a particular pirated

             25           copy, that that information be furnished to


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              1                         Jacobsen

              2           me as part of the document request.

              3                  In other words, I would not want the

              4           document request either with respect to

              5           pirated copies or different technologies

              6           that carry deCSS or decrypted DVDs to be

              7           limited solely to the time of the

              8           deposition, but if you get additional

              9           documents with respect to any of the

             10           questions that I have asked this witness

             11           and you agree to produce files up to

             12           today's date, I would like to make that

             13           request for the documents for the date

             14           going forward to the date of trial.

             15                  Off the record.

             16                  MR. COOPER:  I note the request.

             17           We will take it under advisement.

             18           Q.     Did you ever contact the newspaper

             19   in which you saw the article, whether it be this

             20   article or a different article, and advise the

             21   newspaper not to run articles about the method of

             22   making decrypted movies from deCSS?

             23                  MR. COOPER:  Would you read it

             24           back, please.

             25                  (Record read.)


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              1                         Jacobsen

              2           A.     I never contacted the writer of the

              3   newspaper article that I read.

              4           Q.     Did you ever determine whether or

              5   not those newspapers ever got a response, letters,

              6   or comments, either orally or in writing, to the

              7   author's article where he claimed that he had used

              8   deCSS to make copies of DVDs?

              9           A.     I'm sorry.  Did you ask if I ever --

             10                  MR. GARBUS:  Off the record.

             11                  (Discussion off the record.)

             12           A.     I never contacted the newspaper, at

             13   all.

             14           Q.     Has anyone ever told you about the

             15   quality of DVD movie that has been decrypted

             16   through the use of deCSS?

             17           A.     No.

             18           Q.     So we can't get into a discussion

             19   about good quality, bad quality, poor quality,

             20   terrific quality, because that is not something you

             21   have any knowledge of?

             22           A.     That's correct.

             23           Q.     Do you have on your staff people who

             24   are "technical people" who know how long it would

             25   take to upload a gigabyte?


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              1                         Jacobsen

              2                  MR. COOPER:  A gigabyte of data?

              3                  MR. GARBUS:  Yes.

              4                  MR. COOPER:  Onto another site on

              5           the internet?

              6                  MR. GARBUS:  Yes.

              7           A.     I have someone on my staff who is

              8   conversant with the internet.

              9           Q.     Who is that?

             10  

             11  

             12  

             13  

             14                     Confidential  

             15  

             16  

             17  

             18  

             19  

             20  

             21  

             22  

             23  

             24  

             25  


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              1                  Confidential

              2  

              3  

              4  

              5  

              6  

              7  

              8  

              9  

             10  

             11  

             12  

             13  

             14  

             15  

             16  

             17  

             18  

             19  

             20  

             21  

             22  

             23  

             24           Q.     Let me show you the last line of

             25   Paragraph 21, at Page 8 of the affidavit of John


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              1                         Jacobsen

              2   Gilmore and ask whether you have any information

              3   about whether or not that sentence is accurate.

              4                  MR. COOPER:  The attention --

              5           Q.     "Using the internet to send or sell

              6   copies of stored movies is particularly

              7   unreasonable:  Uploading a single gigabyte over a

              8   56K modem would take about 40 hours.  So, an entire

              9   DVD would take many days."

             10                  Do you have the technical knowledge

             11   to pass judgment on the accuracy of that statement?

             12                  MR. COOPER:  I will note that he

             13           is not here to testify on such matters.

             14           Q.     Go ahead.

             15           A.     I would assume he is correct, but

             16   the majority of the people that we are concerned

             17   about are not using 56K modem.

             18           Q.     What are they using?

             19           A.     They are using either broadband or a

             20   T1, a T3, a university system.

             21           Q.     How long would it take over T1?

             22           A.     I don't know the answer.  It would

             23   be significantly less than this.

             24           Q.     How long would it take over T3?

             25           A.     I don't know the answer.


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              1                         Jacobsen

              2           Q.     How long would it take over

              3   broadband?

              4           A.     I don't know the answer.

              5           Q.     Does anybody at the MPAA know?

              6           A.     I think all of those factors vary

              7   upon the size of the file that you are dealing

              8   with, how busy the particular pipe is at the

              9   particular time you are trying to use it.  But yes,

             10   we would have rough estimates of what the time

             11   frame would be.

             12   RQ             MR. GARBUS:  Would you produce that

             13           information?

             14                  MR. COOPER:  The fact that they

             15           could estimate it doesn't mean that they

             16           do have estimates in existence.

             17           Q.     Have you estimated it?

             18           A.     In general discussion perhaps, but I

             19   don't recall ever producing a written document that

             20   sets up those estimates.

             21           Q.     No pieces of paper?

             22           A.     That's correct.

             23           Q.     Have you heard of anybody ever

             24   trying to use the broadband to send a decrypted DVD

             25   movie?


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              1                         Jacobsen

              2           A.     I think I have already testified,

              3   outside of the fact that people have claimed they

              4   have used DVD deCSS, I am unaware of anybody

              5   actually transmitting it or actually decrypting a

              6   DVD.

              7           Q.     Before you said that the mere

              8   transmission of deCSS is piracy.  Is that right?

              9           A.     What I suggested was the posting for

             10   trafficking or trafficking in deCSS, I would

             11   consider it to be within the term "piracy," as I

             12   used the term "piracy" in my program.

             13                  MR. GARBUS:  Can I hear the answer

             14           again?

             15                  (Record read.)

             16           Q.     How about the postings, if for

             17   reasons other than trafficking?  As, for example,

             18   on university sites?

             19                  MR. COOPER:  Calls for a legal

             20           conclusion and assumes facts not in

             21           evidence.

             22           Q.     Go ahead.  Can you answer the

             23   question?

             24           A.     The distribution, in my mind, would

             25   be the same as trafficking.  If I am offering for


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              1                         Jacobsen

              2   distribution deCSS, that is another word that is

              3   synonymous with trafficking.

              4           Q.     You are saying that the mere posting

              5   by anybody of deCSS, whether it be academic, a

              6   university, an author, would under your definition

              7   come within trafficking?

              8                  MR. COOPER:  Same objection.

              9           Q.     Is that right?

             10           A.     Not necessarily.

             11           Q.     Explain that to me.

             12                  MR. COOPER:  Same objections.

             13           Q.     Go ahead.

             14                  MR. COOPER:  Let me confer with

             15           the witness.

             16                  MR. GARBUS:  Let me get an answer

             17           at this time.

             18                  MR. COOPER:  I just want to find

             19           out if the witness is --

             20                  MR. GARBUS:  Let me get an answer.

             21                  MR. COOPER:  As long as it is

             22           exclusive of material from you had from

             23           counsel, that's fine.

             24           Q.     Go ahead.  Just give me the answer.

             25           A.     I generally understand that there


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              1                         Jacobsen

              2   might be situations where parts of the utility or

              3   reasons for the utility being used may or may not

              4   violate the law.  I mean potentially that

              5   possibility exists.

              6   RL      Q.     Tell me where that potentiality

              7   exists.

              8   DI             MR. COOPER:  This witness is not

              9           offered for purposes of testifying on legal

             10           matters and I am not going to allow this

             11           witness to provide testimony with respect

             12           to his understanding of the law.  He is

             13           neither an expert, nor is he being offered

             14           as a witness capable of testifying on the

             15           law and I am going to direct him not to

             16           answer questions outside of the scope of

             17           his expertise and his designation as a

             18           witness.

             19           Q.     Have you ever seen any postings in

             20   universities or in academic journals or by

             21   cryptographers that you would consider not to be

             22   trafficking?

             23           A.     I don't recall ever seeing such

             24   postings.  Period.

             25           Q.     Have you ever looked at academic


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              1                         Jacobsen

              2   sites?

              3           A.     Have I?

              4           Q.     Yes.

              5           A.     No.

              6                  MR. GARBUS:  Mark this as the next

              7           exhibit.

              8                  (Defendants' Exhibit 13, three-page

              9           document dated 2/8/00, marked for

             10           identification, as of this date.)

             11   BY MR. GARBUS:

             12           Q.     Wasn't a cease and desist letter

             13   sent out to Carnegie Mellon University concerning

             14   the posting of deCSS?

             15                  MR. COOPER:  Let me just, for the

             16           record, note that the witness has been

             17           provided a document which appears to be a

             18           letter from the MPAA to a Mark Poepping,

             19           which appears to be a correspondence

             20           falling within the description Mr. Garbus

             21           just made.

             22           A.     I mean it would appear from this

             23   Exhibit that the answer is yes.

             24           Q.     Do you know whether or not any

             25   copies of DVDs were made from the posting at


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              1                         Jacobsen

              2   Carnegie Mellon University?

              3                  MR. COOPER:  Calls for

              4           speculation.

              5           A.     I do not.

              6           Q.     Did you ever try and determine that?

              7           A.     No.

              8           Q.     Do you know what use was being put

              9   at Carnegie Mellon to the posting of the deCSS?

             10           A.     I do not.

             11           Q.     Did you ever make any inquiry -- by

             12   "you" I mean the MPAA -- before or after you sent

             13   the letter to Carnegie Mellon University?

             14                  MR. COOPER:  Would you read back

             15           the question.

             16                  (Record read.)

             17                  MR. COOPER:  I just note some

             18           inquiry must have been done in order to

             19           send the letter.  You mean to distinguish

             20           that?

             21           Q.     In other words, did you ever make

             22   any inquiry into Carnegie Mellon University as to

             23   why it was being posted before you sent the letter?

             24           A.     Did I?  No.

             25           Q.     By "I," I am talking about you, the


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              1                         Jacobsen

              2   MPAA, the nine plaintiffs.

              3           A.     I don't know.

              4           Q.     Was any distinction made before the

              5   cease and desist letters were sent out as to who

              6   should receive them within that large group of

              7   people who had posted deCSS?

              8                  MR. COOPER:  If I understand your

              9           question, I just want to admonish the

             10           witness to exclude from his answer any

             11           information that comes solely through

             12           conversations in which counsel

             13           participated.

             14           A.     I don't have an answer that I could

             15   make which would not involve discussions with

             16   counsel.

             17                  MR. GARBUS:  Read back the

             18           question and the answer.

             19                  (Record read.)

             20   BY MR. GARBUS:

             21           Q.     When did you graduate from law

             22   school?

             23           A.     1969.

             24           Q.     Which law school did you go to?

             25           A.     Northwestern University .


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              1                         Jacobsen

              2           Q.     Which college did you go to?

              3           A.     Valparaiso University.

              4   V-A-L-P-A-R-A-I-S-O.

              5           Q.     What did you do after you left law

              6   school?

              7           A.     I went to work for the Federal

              8   Bureau of Investigation.

              9           Q.     For how long?

             10           A.     Twenty-five and a half years.

             11           Q.     What kind of work did you do for the

             12   Federal Bureau of Investigation?

             13           A.     I was a special agent.

             14           Q.     What were your duties there?

             15           A.     Wide variety, but I worked many

             16   different types of violations.  For a period of

             17   time I was our in-house office legal counsel and

             18   for the last twelve years I was supervisor of

             19   various squads and programs.

             20   RL      Q.     Before when you said you could see

             21   how postings could be nonviolative, is the Carnegie

             22   Mellon such a posting?

             23   DI             MR. COOPER:  I will make the same

             24           objection with respect to the last

             25           question.  Calling for a legal conclusion


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              1                         Jacobsen

              2           and being outside the scope of this

              3           witness' expertise in the area for which he

              4           has been designated.  I direct him not to

              5           answer.

              6   BY MR. GARBUS:

              7           Q.     Can you see any postings that you as

              8   a senior vice president and director of worldwide

              9   anti-piracy would not constitute any involvement in

             10   "trafficking"?

             11                  MR. COOPER:  Read back the

             12           question.

             13                  (Record read.)

             14                  MR. COOPER:  In addition to the

             15           objections to the prior question, I

             16           believe that this is an incomplete

             17           hypothetical and calls for speculation.

             18           Q.     Go ahead.

             19           A.     Can I assume you are talking about

             20   deCSS posting?

             21           Q.     Yes.

             22           A.     For purposes of distribution to

             23   anybody that wants to pick it up on the net?

             24           Q.     No.  In other words, if Carnegie

             25   Mellon posts it, does that necessarily mean that


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              1                         Jacobsen

              2   Carnegie Mellon wants anybody on the net to have

              3   it?  Is that the sole reason for Carnegie Mellon to

              4   post it?

              5                  MR. COOPER:  Same objection as to

              6           the last question.  The witness is not

              7           here to speculate about the purposes that

              8           Carnegie Mellon may have in posting

              9           anything.

             10           A.     I do not know what the reason was

             11   that they posted it for.  I mean I can't attribute

             12   a reason for them without knowing what the facts

             13   were.

             14           Q.     Do you know where Carnegie Mellon

             15   posted it?

             16           A.     I do not.

             17           Q.     Do you know whether any

             18   cryptographers posted deCSS?

             19           A.     I do not.

             20           Q.     Can you see any reason why

             21   cryptographers would post deCSS?

             22                  MR. COOPER:  Calls for

             23           speculation.  It is an incomplete

             24           hypothetical.

             25           A.     I don't know.  I am not a


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              1                         Jacobsen

              2   cryptographer.

              3           Q.     Have you ever had any training in

              4   cryptography?

              5           A.     No.

              6           Q.     Have you seen the affidavit of Frank

              7   Stevenson in this case where he indicates he is

              8   going to write an article, including deCSS in it?

              9           A.     I have not seen Mr. Stevenson's

             10   affidavit.

             11           Q.     Is it your view that writing an

             12   academic article, including deCSS in that article

             13   would be trafficking?

             14                  MR. COOPER:  Calls for a legal

             15           conclusion.  It is outside the ambit of

             16           this witness' designation.

             17           Q.     Go ahead.

             18           A.     I'm not sure that I understand what

             19   you mean by "including deCSS in the article."

             20                  MR. COOPER:  It is also an

             21           incomplete hypothetical.

             22   RL      Q.     If an academic were to write about

             23   the method by which deCSS was arrived at, is it

             24   your understanding that that article would be

             25   violative of Section 1201?


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              1                         Jacobsen

              2   DI             MR. COOPER:  This witness has not

              3           been designated and is not here to testify

              4           about hypothetical legal situations which

              5           call for legal conclusions.  I direct him

              6           not to answer such questions.

              7   RL      Q.     Is it your understanding that it

              8   would be piracy if an academic wrote an article

              9   describing how deCSS was created?

             10                  MR. COOPER:  Same objections.

             11           Q.     Go ahead.

             12                  MR. COOPER:  Same direction.

             13                  MR. GARBUS:  Not to answer?

             14   DI             MR. COOPER:  I directed him not to

             15           answer.

             16                  MR. GARBUS:  Not to answer?

             17                  MR. COOPER:  Yes.

             18                  MR. GARBUS:  I thought we had an

             19           understanding that the witness would

             20           answer questions and that the judge would

             21           then rule on them.  I didn't understand

             22           that there would be directions not to

             23           answer.  Is your position that you will

             24           direct him not to answer until such time

             25           as a judge rules on the question?


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              1                         Jacobsen

              2                  MR. COOPER:  I'm not sure what

              3           understanding you are referring to.  I'm

              4           not aware of any understanding in this

              5           case that would change the rules of

              6           Federal Evidence which require and as

              7           well allow that I make objections with

              8           respect to the attorney-client privilege

              9           and as well as the competency to answer

             10           questions on an expert basis.

             11                  If this witness were designated

             12           to testify in expert matters, I would

             13           view it differently.  But he is not.

             14           He is here to testify about factual

             15           matters.

             16                  MR. GARBUS:  We will get a ruling.

             17           This witness is being asked to testify

             18           about piracy and I am asking him what

             19           constitutes piracy and what constitutes

             20           trafficking, and what is violative of

             21           trafficking laws.

             22                  MR. COOPER:  My objection is not

             23           as to any factual matters within this

             24           witness' knowledge.  My objection is to

             25           hypothetical legal matters as to which


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              2           you are seeking a legal opinion.

              3           Q.     Have you advised any academic

              4   institutions that you consider the posting of deCSS

              5   to be piracy?

              6                  MR. COOPER:  Objection as to form.

              7           It's vague.

              8           Q.     Go ahead.

              9           A.     If you -- well, I mean Exhibit 13

             10   indicates or establishes the fact that we have sent

             11   to a university a cease and desist letter regarding

             12   the posting of the deCSS circumvention device.

             13           Q.     So does that mean that you have

             14   concluded that irrespective of the purpose for

             15   which that university posted the deCSS, it would be

             16   a violation of the anti-piracy statute?

             17                  MR. COOPER:  The letter speaks for

             18           itself.  If you are asking the witness to

             19           draw a conclusion, I object on that

             20           basis.  If you are asking the witness to

             21           testify about the internal conclusions of

             22           the MPAA with respect to the legality, I

             23           direct the witness not to answer if the

             24           sole source of that information is from

             25           conversations with counsel.


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              2           A.     I am confused.  I'm sorry.

              3                  THE WITNESS:  Please read back the

              4           question and what my counsel just said.

              5                  (Record read.)

              6           A.     I will have to not answer, because

              7   the source of the information would be from

              8   conversations with counsel.

              9           Q.     Do you know enough about

             10   cryptography to tell me whether or not the

             11   publication of deCSS would provide a valuable tool

             12   for the academic discipline of cryptography?

             13           A.     I do not.

             14           Q.     Do you know enough about

             15   cryptography to tell me whether or not the

             16   publication of the entire deCSS code would be of

             17   value to the academic study of cryptography?

             18           A.     I do not.

             19           Q.     Do you know whether or not anyone --

             20   when you said "you," you were speaking on behalf of

             21   yourself, the MPAA, and the nine movie studios?

             22                  MR. COOPER:  Would you -- I don't

             23           know how the answer to your last answer

             24           could possibly be "yes," but would you

             25           read back the prior two questions?


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              1                         Jacobsen

              2                  MR. GARBUS:  I have already asked

              3           him -- when I say "you," I mean you, the

              4           MPAA, the movie studios.

              5                  MR. COOPER:  I understand what you

              6           mean.  I thought --

              7                  MR. GARBUS:  He agreed to that.

              8           If you want, I will just go through it

              9           and I will ask the same question ten

             10           different times.

             11                  MR. COOPER:  That's fine.  I just

             12           want -- before we go into that, I just

             13           want to have the last two questions read

             14           back.

             15                  (Record read.)

             16                  MR. COOPER:  Let me just say that

             17           from the specific questions you asked, I

             18           don't think a reasonable person could

             19           have concluded that you wanted the

             20           witness to testify not only about his own

             21           personal knowledge, but about the

             22           knowledge of every person employed by any

             23           of the plaintiffs, excluding Time Warner

             24           or any of the employees of the MPAA, and

             25           I believe the witness manifestly


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              2           testified about his personal knowledge in

              3           answer to those two questions.

              4           Q.     After we get past your personal

              5   knowledge, do you know of anybody at the MPAA --

              6                  MR. GARBUS:  Off the record.

              7                  (Record read.)

              8   BY MR. GARBUS:

              9           Q.     Do you know anybody at the MPAA who

             10   knows whether or not the publication of the method

             11   of which deCSS is arrived at would be of value in

             12   the study of cryptography?

             13           A.     I don't know if there is anybody at

             14   the MPAA who has that type of knowledge about

             15   cryptography.

             16           Q.     Have you had any discussions with

             17   anyone at the MPAA concerning the potential uses of

             18   deCSS, whether the code itself or the method at

             19   which it was arrived at would be of value in the

             20   academic discipline of cryptography?

             21                  MR. COOPER:  Excluding discussions

             22           with counsel.

             23           A.     No.

             24           Q.     Do you know of anybody at the MPAA

             25   who would know about the value of an article


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              1                         Jacobsen

              2   describing reverse engineering in the academic

              3   discipline of cryptography?

              4                  MR. COOPER:  In the abstract or

              5           with respect to deCSS?

              6                  MR. GARBUS:  With respect to

              7           deCSS.

              8           A.     I don't know if there is anybody at

              9   the MPAA who would have that knowledge.

             10           Q.     Do you know what reverse engineering

             11   is?

             12           A.     Generally.

             13           Q.     Have you seen any documents that use

             14   the term reverse engineering and deCSS at either

             15   the MPAA or the movie studio plaintiffs?

             16                  MR. COOPER:  That's a "yes" or

             17           "no" question.

             18           A.     Together?  Where they used them

             19   together?

             20           Q.     Yes.

             21           A.     I believe I have.

             22           Q.     Where are those documents?

             23           A.     I think they are pleadings in this

             24   case.

             25           Q.     Other than the pleadings.


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              2           A.     I think there may be some -- there

              3   is a possibility that on the website there may be

              4   some FAQs that deal with -- I don't recall if they

              5   have reverse engineering and deCSS in the same

              6   document, but it's possible.

              7           Q.     Have you downloaded it?

              8           A.     Discussing this case.

              9           Q.     Which websites?

             10           A.     I believe our website, the MPAA

             11   website.

             12           Q.     Other than the MPAA website?

             13           A.     Not that I am aware of.

             14           Q.     Do you know of any cryptographers at

             15   the movie studios?

             16           A.     I do not.

             17           Q.     Do you know whether any

             18   cryptographers were hired by the MPAA or the movie

             19   studios prior to the institution of this lawsuit?

             20                  MR. COOPER:  That's a "yes" or

             21           "no" question.

             22           A.     I don't know.

             23           Q.     Do you know whether any

             24   cryptographers were hired by the MPAA or the movie

             25   studios after the institution of this lawsuit?


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              2           A.     I don't know if Mr. Schumann is a

              3   cryptographer or not.

              4           Q.     The only person that you know that

              5   has been hired as an expert with respect to this

              6   case by either the MPAA or Proskauer or the movie

              7   studios is Mr. Schumann; is that right?

              8                  MR. COOPER:  Exclude from that

              9           answer anything you know only through

             10           discussions with counsel.

             11           A.     Yes.

             12           Q.     Have you had any discussions

             13   yourself with any cryptographers who might become

             14   potential witnesses in this case?

             15           A.     I have not.

             16           Q.     To your knowledge, has anybody at

             17   any of the movie studios thus far had any

             18   conversations with any cryptographers or scientists

             19   who might become witnesses in this case?

             20                  MR. COOPER:  Same admonition with

             21           respect to conversations with counsel.

             22           A.     I don't know of any.

             23           Q.     When you say you don't know of any,

             24   since you are in charge of the worldwide

             25   Anti-Piracy Unit, would you think that any would


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              1                         Jacobsen

              2   have been hired without your knowledge?

              3                  MR. COOPER:  You are talking about

              4           hired in connection with this litigation?

              5                  MR. GARBUS:  Hired in connection

              6           with the deCSS issue.

              7                  MR. COOPER:  Lacks foundation.

              8           A.     By the movie studios or by MPAA?

              9           Q.     Either.

             10           A.     By MPAA, I would expect that I would

             11   know.  By the movie studios, I don't know whether I

             12   would know or not.

             13           Q.     Has anyone at the movie studios told

             14   you that they have hired any scientists, academists

             15   or cryptographers with respect to the deCSS suit?

             16                  MR. COOPER:  Again, excludes from

             17           your answer privileged communications.

             18           A.     No.

             19           Q.     Do you know what DivX is?

             20                  MR. COOPER:  D-I-V-X?

             21                  MR. GARBUS:  Yes.

             22           A.     In what context?  I know of several

             23   DivX's.

             24           Q.     Which are?

             25           A.     The original DivX I knew about was a


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              1                         Jacobsen

              2   format for DVD.  It was a competing format to a

              3   normal type of DVD.  It was heavily encrypted.

              4   Rather than being sold, it was rented.  You rented

              5   it for a period of time.  You had to use a special

              6   player.  It was a direct payment off that special

              7   player and off the reading of the disk.  That

              8   company, as far as I know, is now defunct.

              9           Q.     Do you know what Livid is?

             10           A.     No, I do not.

             11           Q.     Do you know what Linux is?

             12           A.     Generally.

             13           Q.     What is it?

             14           A.     My understanding is it's a computer

             15   operating system.

             16           Q.     Have you ever worked with it?

             17           A.     I have not.

             18           Q.     Has anyone at the MPAA ever worked

             19   with it?

             20                  MR. COOPER:  Lacks foundation.

             21           Outside of this witness' scope of

             22           testimony.

             23           A.     I don't know the answer.  Not to my

             24   knowledge, but somebody could have.

             25                    CONFIDENTIAL


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              1                         Jacobsen

              2   you know if she has ever used the Linux system?

              3           A.     I don't know.

              4           Q.     Do you know if she has ever used

              5   Redhat?

              6           A.     I don't know.

              7           Q.     Do you know what Redhat is?

              8           A.     It has something to do with Linux.

              9   I know there is a stock that was released on

             10   redhead.  Outside of that, I have very little

             11   information.

             12           Q.     Do you know what Corel is?

             13           A.     I have seen Corel in terms of

             14   software programs, but I don't know anything

             15   besides that.

             16           Q.     I show you the second sentence of

             17   Paragraph 14 of Stevenson.

             18                  MR. COOPER:  The Declaration of

             19           Frank Stevenson.

             20           Q.     Paragraph 14, Line 2.  He says, "I

             21   think a paper about the efforts of the Livid forum

             22   and other related and unrelated individuals in

             23   connection with CSS and DVDs will provide extremely

             24   useful information for a wide variety of

             25   individuals, scientists, academics, including


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              1                         Jacobsen

              2   cryptologists and persons interested in the DVD

              3   area."

              4                  Now I ask whether or not you have an

              5   opinion as to whether or not his statement is

              6   accurate or whether or not you have an opinion

              7   about whether or not the substance of his statement

              8   is accurate.  Namely, that articles and papers

              9   about CSS and DVDs provide useful information for a

             10   wide variety of individuals, scientists, and

             11   academics.

             12                  MR. COOPER:  Outside of this

             13           witness' area of testimony and calls for

             14           an opinion for which I am not aware he is

             15           qualified to give.

             16           A.     I have no opinion.

             17           Q.     Had you ever heard of Mr. Stevenson

             18   before this case?

             19           A.     No.

             20           Q.     Do you know of any other eminent

             21   cryptologists in the United States?

             22                  MR. COOPER:  Assumes facts not in

             23           evidence.

             24           A.     I don't know any cryptologists.

             25           Q.     Have you ever read any academic


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              2   journals on the science of cryptology?

              3           A.     I have not.

              4           Q.     Have you ever attended any lectures

              5   on the science of cryptology?

              6           A.     I have not.

              7           Q.     Do you know what the ACM is?

              8           A.     No.

              9           Q.     Do you know of a publication that

             10   the ACM publishes called "The ACM Journal"?

             11           A.     I am not aware of that publication.

             12           Q.     Do you know that the San Jose

             13   Mercury News links to sites that now post to deCSS?

             14                  MR. COOPER:  Assumes facts not in

             15           evidence.

             16           Q.     Do you know whether that is so or

             17   not?

             18           A.     I do not know.

             19           Q.     Do you know whether or not the

             20   Associated Press, when it came out with its story

             21   on Johansen in October-November, the young man who

             22   allegedly was involved in the breaking of the code,

             23   carried sites that posted deCSS?

             24           A.     I do not.

             25           Q.     Do you know whether or not APB News,


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              1                         Jacobsen

              2   which is the Associated Press website, presently

              3   carries postings to deCSS?

              4                  MR. COOPER:  In answering these

              5           questions, I assume you are excluding

              6           knowledge only through counsel?

              7                  MR. GARBUS:  Yes.

              8           A.     I do not.

              9           Q.     Do you know whether the New York

             10   Times has postings to deCSS and whether or not it

             11   links to sites that refer you to the actual posting

             12   of deCSS?

             13           A.     I do not.

             14           Q.     Do you know how many sites today

             15   have deCSS on them, the actual code?

             16                  MR. COOPER:  Posted as opposed to

             17           linked at this time?

             18                  MR. GARBUS:  Yes.

             19           A.     I'm not sure what you mean by the

             20   actual code.  Do you mean that the code is spelled

             21   out or that the software utility is present on the

             22   site?

             23           Q.     Both.

             24           A.     I do not know.

             25           Q.     Do you know for either one?


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              2           A.     I know generally how many sites we

              3   have found.  I have no idea how many sites actually

              4   carry it.

              5           Q.     How many sites have you found now

              6   that actually carry it?

              7           A.     As of last week, roughly somewhere

              8   between 600 and 1,000 perhaps.

              9           Q.     And are these sites in the United

             10   States, overseas, or both?

             11           A.     Both.

             12           Q.     Do you know how many people have

             13   downloaded on pieces of paper deCSS?

             14                  MR. COOPER:  Assumes facts not in

             15           evidence and I think it misconstrues what

             16           deCSS is and whether it is capable of

             17           being --

             18                  MR. GARBUS:  Downloaded as an

             19           utility.

             20           A.     I do not, no.

             21           Q.     Do you know whether it is more or

             22   less than half a million?

             23           A.     I do not know.

             24           Q.     Do you know if it is more or less

             25   than 10 million?


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              2           A.     I do not know.

              3           Q.     Have you ever tried to determine how

              4   many downloads of the utility have been done since

              5   October-November?

              6           A.     No.

              7                  MR. GARBUS:  Off the record.

              8                  (Discussion off the record.)

              9   BY MR. GARBUS:

             10           Q.     When you say had been 600 to 1,000,

             11   you mean since October or November of 1999?

             12           A.     That's correct.

             13           Q.     Of that 600 to 1,000, how many have

             14   taken off the posting?

             15           A.     Again, I don't have an exact number,

             16   but I would say roughly 60 percent.  That would be

             17   posting and linking.  I'm sorry.  You just said

             18   posting.  But posting and linking, that would be

             19   the numbers.

             20           Q.     Let's break it down.  When you gave

             21   me the number of 600 to 1,000, were you talking

             22   about posting or posting and linking?

             23           A.     Talking about cumulative, which

             24   would include both.  I don't have an estimate as to

             25   which is which.


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              2           Q.     So that if somebody referred you to

              3   the site that had deCSS, that would be included in

              4   the 600 to 1,000; is that right?

              5           A.     If someone linked to a deCSS?

              6           Q.     Yes.

              7           A.     That's correct.

              8           Q.     Does that include in that number the

              9   New York Times, the San Jose Mercury News, or the

             10   APB News, to your knowledge?

             11                  MR. COOPER:  Calls for

             12           speculation.

             13           A.     I don't know that we have located

             14   those sites, so I don't know whether they are

             15   included or not.

             16           Q.     You have a list of those sites that

             17   you have located?

             18           A.     The C & D letters that have been

             19   sent out would be representative of the sites that

             20   we have located.

             21           Q.     So you would have sent out, then,

             22   roughly 600 to 1,000 letters; is that right?

             23           A.     Yes.

             24           Q.     And these would be letters going to

             25   places either that post or that link?


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              2           A.     I misstated it.  Let me take that

              3   back.  We may or may not have sent a letter to

              4   every site that was identified.  So, I don't know

              5   that there is one letter per site.

              6           Q.     Were you involved in any

              7   decision-making process about whether or not to

              8   send a letter to a particular site that had a

              9   posting or a linking?

             10                  MR. COOPER:  That's a "yes" or

             11           "no" question.

             12           A.     No.

             13           Q.     Who was?

             14           A.     Would have been our in-house

             15   counsel.

             16           Q.     Who is your in-house counsel?

             17           A.     Mark Litvack and/or Lori Donahue.

             18           Q.     To your knowledge, was there any

             19   discussion about sending or not sending the letter

             20   to any site that you might determine its posting

             21   would not be violative of the anti-piracy statute?

             22                  MR. COOPER:  I think the witness,

             23           if I understood his testimony, just

             24           testified that the only conversations on

             25           decisions to send or not send letters


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              1                         Jacobsen

              2           were conducted by counsel.

              3                  I think your question was just

              4           trying to elicit the specific substance

              5           of those conversations with respect to

              6           what was or was not considered and it's

              7           difficult for me to understand how it

              8           wouldn't intrude into the

              9           attorney-client privilege.

             10           Q.     Were there any internal discussions

             11   at the MPAA, you or any people of your staff,

             12   outside the presence of counsel, discussing whether

             13   any of the postings would not be violative of

             14   piracy concepts?

             15           A.     Not that I can recall.

             16                  MR. COOPER:  Off the record.

             17                  (Discussion off the record.)

             18                  MR. GARBUS:  It is now 12:15.

             19           Let's come back at 1:15.

             20           (Luncheon recess taken at 12:15 p.m.)

             21                        --o0o--

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

             23                 (Time noted:  1:20 p.m.)

             24   K E N N E T H   A.   J A C O B S E N, resumed and

             25           testified as follows:


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              1                         Jacobsen

              2   CONTINUED EXAMINATION

              3   BY MR. GARBUS:

              4           Q.     You used the term or the number 600

              5   to 1,000 as the number of postings or linkings that

              6   were relevant to deCSS.  Do you recall that?

              7           A.     I recall using the number 600 to

              8   1,000, indicating those were the sites we had

              9   located.

             10           Q.     Do you recall how many sites you had

             11   located, let's say, as of November 1st?

             12           A.     I don't.

             13           Q.     Is there any such documentation in

             14   the MPAA as to when you learned of which sites?

             15   When I say the MPAA, I mean the MPAA, you, the

             16   movie studios.

             17           A.     Outside of the actual letters that

             18   were sent --

             19           Q.     The cease and desist letters you

             20   mean?

             21           A.     Right.

             22                  -- the actual cease and desist

             23   letters, going back to November, I'm not sure we

             24   have any list or any file that would indicate any

             25   additional information.


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              1                         Jacobsen

              2           Q.     Did the cease and desist letters go

              3   out all at one time or over a period of time?

              4           A.     They go out over a period of time.

              5           Q.     When did they start to go out?

              6           A.     Regarding deCSS?

              7           Q.     Yes.

              8           A.     I don't remember the exact date.

              9           Q.     When did they stop going out?  When

             10   was the last date?

             11                  MR. COOPER:  Assumes facts not in

             12           evidence.

             13           A.     We are still sending them.  They

             14   haven't stopped.

             15           Q.     Now, tell me something about the DVD

             16   CCA.  Who are they?

             17           A.     My understanding is the DVD CCA is a

             18   nonprofit organization which was created for the

             19   purpose of licensing the CSS, the content

             20   scrambling system for DVDs.

             21           Q.     When was that created?

             22           A.     I don't know the date.

             23           Q.     Was it in 1999 or prior to that?

             24           A.     I honestly don't know.

             25           Q.     Do you know who created it?  Which


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              2   company?

              3                  MR. COOPER:  I note for the record

              4           the lack of foundation.  In fact, this is

              5           not within the purview of the witness'

              6           designated testimony.

              7           A.     I actually don't know.

              8           Q.     Do you know if any of the plaintiff

              9   movie companies in this case created it, the DVD

             10   CCA?

             11                  MR. COOPER:  Same objection.

             12           A.     Do you mean, by "created," if they

             13   actually brought it into existence as a legal

             14   entity?

             15           Q.     Yes.

             16           A.     I don't know the answer.

             17           Q.     Do you know if any of them were

             18   participants in DVD CCA?

             19                  MR. COOPER:  Ambiguous.  Also

             20           lacks foundation.

             21           A.     I don't know what you mean by

             22   "participants."

             23           Q.     Do you know if any of them funded?

             24           A.     I don't know.

             25           Q.     Do you know if any of them have


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              1                         Jacobsen

              2   employees who work for the DVD CCA?

              3           A.     I don't know for sure.  I don't

              4   believe so.

              5           Q.     Do you know how many people the DVD

              6   CCA employs?

              7           A.     I don't.

              8           Q.     Do you know who Mr. Hoy is?

              9           A.     I have never met him, but I know the

             10   name John Hoy.

             11           Q.     Have you spoken to him on the phone?

             12           A.     No.

             13           Q.     Have you spoken to anyone at the DVD

             14   CCA concerning deCSS?

             15           A.     No.

             16           Q.     Do you know if any of the movie

             17   plaintiffs have spoken to anyone at the DVD CCA?

             18                  MR. COOPER:  Exclude any

             19           information you have only through

             20           counsel.

             21           A.     In relationship to deCSS?

             22           Q.     Yes.

             23           A.     I don't know.

             24           Q.     Who is the General Counsel for the

             25   MPAA?


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              1                         Jacobsen

              2           A.     The General Counsel for the MPAA in

              3   Encino is Simon Barsky.

              4           Q.     Is there a different General Counsel

              5   in New York or is he the General Counsel?

              6           A.     We do not have a General Counsel in

              7   New York.  Fritz Attaway, I believe, is also

              8   designated as the senior vice president and General

              9   Counsel in Washington, I think.

             10           Q.     Is there a Deputy General Counsel?

             11           A.     In Encino there is.

             12           Q.     Who is that?

             13           A.     That would be Greg Geckner.

             14           Q.     Are there any other Deputy General

             15   Counsel?

             16           A.     I don't know.  I don't think so.

             17           Q.     What is Mr. Litvack's title?

             18           A.     His title is vice president and

             19   counsel for -- legal counsel for worldwide

             20   anti-piracy.

             21           Q.     You described your responsibilities

             22   this morning for overseeing how the program runs,

             23   the anti-piracy program runs, the development of

             24   strategies, the budget, and correspondence about

             25   the program to member companies and their


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              1                         Jacobsen

              2   representatives.  Is that right?

              3           A.     That's generally correct, yes.

              4           Q.     When you say responsibility for

              5   overseeing how that program runs, can you tell me

              6   something more about what that means?

              7           A.     I'm ultimately responsible for the

              8   design and implementation of whatever strategies we

              9   use to address --

             10           Q.     -- piracy?

             11                  MR. COOPER:  Are you going to let

             12           him finish the answers?

             13           A.     To address basically the piracy of

             14   our member companies' audio-visual product.

             15           Q.     Who determines, then, what is or is

             16   not piracy?  Is that your determination?

             17           A.     In a broad sense, I would make the

             18   determination about the categories of theft of our

             19   product, which I consider to be piracy.

             20           Q.     Tell me what those categories are.

             21           A.     Generally, the illegal manufacture,

             22   distribution, sale of copies of our audio-visual

             23   product which have been unauthorized.

             24                  MR. COOPER:  There is more.

             25           A.     Illegal public performance of our


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              1                         Jacobsen

              2   member company products.

              3           Q.     What do you mean by illegal public

              4   performance?

              5           A.     Somebody shows the movie without the

              6   appropriate authority, exhibits the movie without

              7   appropriate authority, broadcasts a movie without

              8   appropriate authority.  There would be the

              9   manufacture, distribution of circumvention devices,

             10   situations where there is an unauthorized

             11   retransmission of our member company product, and

             12   that would generally cover the scope of what we do.

             13           Q.     Have you ever received a copy of a

             14   DVD movie when the movie is on a DVD disk in a

             15   decrypted form?

             16           A.     Not that I know of.

             17           Q.     When I say "you," I am talking about

             18   you, the movie studies.

             19                  Other than the claims letters that

             20   you sent out relating to deCSS, I presume that you

             21   have sent out other claim letters referring to

             22   other potential infringements of the DVDs; is that

             23   right?

             24                  MR. COOPER:  By "claim letters,"

             25           you mean what he previously referred to


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              1                         Jacobsen

              2           as cease and desist letters?

              3                  MR. GARBUS:  Cease and desist

              4           letters.

              5           A.     Yes.  I think that's accurate.

              6           Q.     To which groups?

              7           A.     Anyone who might be offering for

              8   sale a DVD on the internet, which we believe is

              9   unauthorized.

             10           Q.     Any other?

             11           A.     If we identified a site which

             12   offered what was claimed to be a DVD which was

             13   being offered in downloadable media or file

             14   transfer type circumstance on the internet, we

             15   might send them a cease and desist letter.

             16           Q.     Approximately how many cease and

             17   desist letters relating to deCSS were present?

             18           A.     Somewhere between 600 and 1,000, I

             19   believe.

             20           Q.     How many other cease and desist

             21   letters were sent since you have been in your

             22   position of April 1st, relating to alleged pirated

             23   companies of DVDs?

             24           A.     I don't know.

             25           Q.     Thousands?


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              2           A.     No.

              3           Q.     More or less than fifty?

              4           A.     I don't know, because I do not have

              5   an accurate recollection of which sites might have

              6   been offering DVDs as opposed to other types of

              7   copies.

              8           Q.     Going back to, let's say, October 1,

              9   1999, if you know this, how many cease and desist

             10   letters have been sent referring to DVDs by you or

             11   your predecessor?

             12           A.     I don't know.

             13           Q.     Again, would you think it would be

             14   more or less than 1,000?

             15           A.     My guess would be it would be less

             16   than 1,000.

             17   RQ             MR. GARBUS:  I would ask you to

             18           produce them.

             19                  MR. COOPER:  Can I just have the

             20           question read back so I can make a note

             21           of precisely what the description of

             22           documents was?

             23                  (Record read.)

             24                  MR. COOPER:  Your request is for

             25           the production of any C & D letters that


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              2           refer to hard goods in the DVD medium; is

              3           that correct?

              4                  MR. GARBUS:  Yes.

              5                  MR. COOPER:  I will take it under

              6           advisement.

              7                  MR. GARBUS:  It wouldn't be just

              8           hard goods.  It would be internet sales?

              9           Does that come within your definition?

             10                  MR. COOPER:  The reason I asked

             11           for the clarification is so that I can

             12           understand how to distinguish one item

             13           from another.

             14                  My belief is that if somebody is

             15           offering a product on the internet

             16           which consists of a physical disk which

             17           would then have to be transported

             18           through the mail or some other method

             19           of shipment, that that is treated in

             20           the same way as other hard good sales

             21           and then that's distinct from some kind

             22           of downloadable medium.

             23                  Are you making the same

             24           distinction?

             25                  MR. GARBUS:  Off the record.


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              2                  (Discussion off the record.)

              3                  MR. COOPER:  Off the record the

              4           request has been clarified to include in

              5           addition to DVD hard goods, the defendant

              6           is also requesting C & D letters that

              7           refer to DVD motion picture in a

              8           downloadable medium.  Is that correct?

              9                  MR. GARBUS:  Thank you.

             10   BY MR. GARBUS:

             11           Q.     You said also that one of your jobs

             12   are the strategies that are developed with respect

             13   to those places where you find copying of DVDs that

             14   you perceive to be violations of 1201.

             15                  Have you ever sent out a letter to

             16   anyone who has made a copy of a DVD for home use?

             17                  MR. COOPER:  Read back the

             18           question.

             19                  (Record read.)

             20                  MR. COOPER:  It is compound,

             21           mischaracterizes the witness' testimony.

             22           Q.     Can you answer it?

             23           A.     What is your reference to 1201?  Is

             24   that to the Digital Millennium Copyright Act?

             25                  MR. GARBUS:  Yes.


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              2           A.     The strategies that I developed are

              3   much broader than what evolves around that.

              4           Q.     Tell me the strategy that you

              5   developed with respect to the deCSS?

              6           A.     In part, it would deal with

              7   circumvention devices.

              8           Q.     Have you sent out any cease and

              9   desist letters to individuals or institutions who

             10   have created circumvention devices?

             11                  MR. COOPER:  You mean to exclude

             12           the ones that you have already put into

             13           evidence and asked him about?

             14                  MR. GARBUS:  Yes.

             15           A.     In addition to deCSS?

             16           Q.     Yes.

             17           A.     I can't recall whether we have or we

             18   haven't, but we would, in appropriate cases, and I

             19   can't remember whether we actually have or we

             20   actually haven't in those cases.

             21                  For instance, cable boxes that are

             22   used to steal cable signal or perhaps Smart Cards

             23   for satellite signal theft.

             24           Q.     Have you ever sent a cease and

             25   desist letter to someone who has copied a DVD for


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              1                         Jacobsen

              2   home use?

              3           A.     I think I already testified I know

              4   of nobody that I can say has copied a DVD for home

              5   use.  So, the answer would have to be I don't know

              6   if we have or we haven't.

              7           Q.     When you say that you deal with the

              8   strategies, is it part of your strategy, once you

              9   learn whether or not people have been copying it

             10   for home use, to try and stop that?

             11                  MR. COOPER:  Calls for

             12           speculation, assumes facts not in

             13           evidence.  The witness has testified

             14           repeatedly that he is not aware of one

             15           such instance and now you are asking for

             16           their policy about what they do when they

             17           find such an instance.  It is a

             18           tautology.

             19           A.     I'm sorry.  I lost the question in

             20   the discussion.

             21                  (Record read.)

             22           A.     To try and stop the copying.

             23           Q.     For home use.

             24           A.     I'm sorry.  Of what?

             25           Q.     The DVD?


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              2           A.     Well, we have not faced that issue

              3   yet, because I am not aware of any solid case where

              4   that has happened.

              5           Q.     Do you have any policies or

              6   procedures that you are discussing concerning

              7   home-use copying of DVDs?

              8                  MR. COOPER:  I will be surprised

              9           if he can answer this without intruding

             10           on the privilege.

             11           A.     The answer is "no."

             12           Q.     Tell me the manner in which you

             13   discuss strategies to deal with issues like deCSS.

             14   Is there a committee within your department that

             15   discusses that?  Is it you and several people?  Do

             16   you discuss it with counsel?  Or all of the above?

             17           A.     In the particular issue of deCSS, my

             18   initial discussions commence with counsel.

             19           Q.     Did you and your staff make

             20   determinations about what is and what is not piracy

             21   and what is and what should not be gone after

             22   through cease and desist letters?

             23           A.     My staff, including the legal people

             24   that work for me, yes.

             25           Q.     Have you had any conversations about


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              2   whether a home copy of a DVD through deCSS

              3   constitutes piracy?

              4                  MR. COOPER:  Given the foundation

              5           you have laid, I don't know how he can

              6           answer that without specifically

              7           providing the substance of

              8           attorney-client communications.

              9           Q.     You had no conversations other than

             10   with attorneys about whether or not making a home

             11   copy constitutes piracy?

             12           A.     In the deCSS context?

             13           Q.     Right.

             14           A.     That is correct.

             15           Q.     You have had no conversations with

             16   anybody at the MPAA, excluding counsel, about

             17   whether or not making a home copy through deCSS is

             18   piracy?

             19                  MR. COOPER:  When you say

             20           "excluding," you mean outside of the

             21           presence of counsel?

             22                  MR. GARBUS:  Yes.

             23           A.     I believe that's correct.

             24           Q.     Have you had any conversations where

             25   there have been MPAA members, counsel, and third


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              1                         Jacobsen

              2   parties or have these all been just meetings with

              3   MPAA and counsel concerning whether or not a home

              4   copy constitutes piracy?

              5           A.     By third parties, are you including

              6   outside counsel that has been hired --

              7           Q.     Other than lawyers.

              8           A.     The answer would be "no."

              9           Q.     Has Mr. Schumann been present at any

             10   of these discussions?

             11           A.     Not while I was present, no.

             12           Q.     Have memorandum been made of these

             13   conversations about whether or not making a home

             14   copy constitutes piracy?

             15           A.     No.  Not that I am aware of.

             16           Q.     Do you know how many universities

             17   were sent a letter similar to the one that was sent

             18   to Carnegie Mellon?

             19           A.     I don't have a number.

             20           Q.     Do you know how many academics

             21   received cease and desist letters?

             22           A.     I do not.

             23           Q.     Does the name "Jon Johansen" mean

             24   anything to you?

             25           A.     Yes.


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              2           Q.     Does the term "MORE" mean anything

              3   to you?

              4           A.     It is a term that I have heard.

              5           Q.     Do you understand that Johansen was

              6   a member of MORE?

              7           A.     I don't know if he was or he wasn't.

              8           Q.     Do you understand that according to

              9   Mr. Johansen, deCSS was created for the Linux

             10   people by the Livid Group?

             11                  MR. COOPER:  Assumes facts not in

             12           evidence.

             13           Q.     Do you know anything about that one

             14   way or the other?

             15           A.     I do not.

             16           Q.     Do you know whether or not deCSS was

             17   given to the Linux groups or Livid groups prior to

             18   the time it was made public in October?

             19           A.     I do not.

             20           Q.     Do you know whether Linux is

             21   attempting to develop a DVD player?

             22                  MR. COOPER:  I will note that this

             23           is not within the ambit of this witness'

             24           designated area of testimony and this

             25           witness has not been established as


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              1                         Jacobsen

              2           having technical expertise necessary to

              3           testify to any of these questions.

              4           A.     When you refer to Linux developer,

              5   I'm not sure who that would be.  I thought that was

              6   just a name for an operating system.

              7           Q.     Do you know whether or not there

              8   were any discussions at the MPAA as to whether or

              9   not it is the MPAA's policy that it is piracy to

             10   reverse engineer CSS?

             11                  MR. COOPER:  With all fairness to

             12           your absolute entitlement to lay a

             13           record, I don't see how he can answer

             14           that question without intruding on the

             15           substance of attorney-client

             16           communications, based on what he has

             17           testified so far.

             18                  I ask the witness whether he can

             19           answer that without revealing the

             20           substance of conversations with

             21           attorneys.

             22                  THE WITNESS:  I could not.

             23           Q.     Let me ask you two more questions.

             24                  MR. GARBUS:  Off the record.

             25                  (Discussion off the record.)


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              2           Q.     Is it MPAA's policy that it is

              3   piracy to reverse engineer CSS?

              4                  MR. COOPER:  He is asking you a

              5           "yes" or "no" question, whether you know

              6           if there is such a policy.

              7           A.     There is no policy on that issue.

              8           Q.     Have there been discussions, not the

              9   subject of the discussions, but have there been

             10   discussions about whether or not the MPAA should

             11   have a policy that it is or is not piracy to

             12   reverse engineer CSS?

             13                  MR. COOPER:  That's a good example

             14           of what I thought was intruding into the

             15           subject matter.

             16                  MR. GARBUS:  Merely having the

             17           conversation.

             18                  MR. COOPER:  You are asking

             19           whether they have discussed it and I

             20           think that is within the privilege.

             21           Q.     It is MPAA's policy that it is

             22   piracy to make fair use of copyrighted material on

             23   a DVD?

             24                  MR. COOPER:  Read it back.

             25                  (Record read.)


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              2                  MR. COOPER:  The question is:

              3           "yes" or "no."  Do you know of such a

              4           policy?

              5           A.     Let me get this straight.  Is it the

              6   policy that it is piracy to make fair use?  There

              7   is no such policy.

              8           Q.     Do you understand that it is the

              9   MPAA's position that it is piracy to make fair use

             10   of copyrighted material on a DVD, excluding from

             11   that any conversations with attorneys?

             12                  MR. COOPER:  Now you are saying

             13           "position."  Are you meaning to include

             14           positions asserted in this litigation?

             15           Because you have now distinguished

             16           "positions" from "policies."

             17                  MR. GARBUS:  Off the record.

             18                  (Discussion off the record.)

             19                  MR. GARBUS:  Read back the

             20           question.

             21                  (Record read.)

             22                  MR. COOPER:  Answer whether or not

             23           you know whether there is such a position

             24           and then we will take it from there.

             25           A.     If I understand the question


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              1                         Jacobsen

              2   correctly, you are asking me, does the MPAA have a

              3   position that it is piracy to make fair use of

              4   copyrighted information that's contained on a DVD.

              5   We do not have such a policy, that I am aware of.

              6           Q.     Do you have a personal view of

              7   whether or not it is piracy to make fair use of

              8   copyrighted material on a DVD?

              9                  MR. COOPER:  He is not here to

             10           give his personal views.  He is here

             11           designated as a witness on behalf of

             12           other parties and his personal view on

             13           this subject is irrelevant.

             14           Q.     Go ahead.

             15                  THE WITNESS:  Should I answer?

             16   DI             MR. COOPER:  As long as your

             17           personal view does not stem from an

             18           attorney-client source, it is fine with me.

             19           Although I maintain my objection that it's

             20           not admissible in this lawsuit.

             21           A.     I hate to restate the question, but

             22   in the discourse I get lost.

             23                  (Record read.)

             24           A.     Assuming that fair use has been

             25   established by a court that says it's fair use, I


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              1                         Jacobsen

              2   would then have to conclude that it would probably

              3   not be piracy.

              4           Q.     Is it the MPAA's policy that it is

              5   piracy to play DVD on a non-CSS equipped player?

              6                  MR. COOPER:  It's complex and I

              7           think it is an incomplete hypothetical.

              8           A.     I don't understand the question,

              9   because I don't understand how -- I am assuming you

             10   are talking about an encrypted DVD.  I don't

             11   understand how it would be played on a non-CSS

             12   enabled player without some intervening causes.

             13           Q.     Let's assume that the intervening

             14   cause was deCSS.

             15                  MR. COOPER:  So now the question

             16           is whether it is MPAA policy that using

             17           deCSS to play an encrypted DVD is piracy?

             18                  MR. GARBUS:  On a non-CSS equipped

             19           player.

             20           Q.     In other words, if you buy a --

             21   excuse me.  Answer the question.

             22                  MR. COOPER:  This is a "yes" or

             23           "no" question as to whether you know

             24           that.

             25           A.     Read it back.


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              1                         Jacobsen

              2                  (Record read.)

              3                  MR. COOPER:  Answer the question

              4           "yes" or "no," whether you are aware of

              5           such policy.

              6           A.     No.

              7           Q.     "No" meaning you are not aware of

              8   such a policy?

              9           A.     That's correct.

             10           Q.     What is your position on it, the

             11   MPAA's position on it as distinguished from policy?

             12                  MR. COOPER:  Calls for a legal

             13           conclusion.  I think our position with

             14           respect to such an issue to the extent

             15           that it is relevant to this lawsuit will

             16           come through the documents filed in

             17           connection with the lawsuit.  This

             18           witness is not an appropriate source for

             19           that information.  I will instruct you

             20           not to answer.

             21   RL      Q.     What is your personal view holding

             22   the position that you hold at the MPAA, whether or

             23   not it is piracy to play DVD on a non-CSS equipped

             24   player, either through the intervention of deCSS or

             25   some other utility?


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              2   DI             MR. COOPER:  Whether I would let him

              3           answer a question if he were here in his

              4           individual capacity I don't know, but at

              5           least in his representative capacity and

              6           given the fact that it calls for a legal

              7           conclusion, I am going to direct him not to

              8           answer that question.

              9           Q.     Is there such a position -- don't

             10   tell me what it is -- with respect to the first

             11   thing I asked?  Namely, reverse engineering CSS,

             12   whether it's piracy to do that.  Without telling me

             13   what the position is, is there a position?

             14                  MR. COOPER:  In fairness, you are

             15           really asking the witness to litigate --

             16                  MR. GARBUS:  I am trying to follow

             17           you.

             18                  MR. COOPER:  I know and I

             19           appreciate it.  But what you are really

             20           asking is, I think, asking about

             21           litigation positions in this case.

             22                  MR. GARBUS:  No, no.  Not

             23           necessarily.  No, no, no.  Not at all.

             24                  MR. COOPER:  In the defenses that

             25           you guys have raised.


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              2                  MR. GARBUS:  Not at all.  I am

              3           asking him -- I am not asking him to say

              4           whether my legal defenses are right or

              5           wrong.  No.  I am asking him what their

              6           policy or positions or his views are on

              7           each of these three things.

              8                  He doesn't say whether I am

              9           right or wrong.  I am not asking that.

             10           I am just asking him what is his, the

             11           MPAA's policy and positions on three

             12           things.  Namely, whether you can play

             13           DVDs on a non-CSS equipped player,

             14           whether you can make fair use of

             15           copyrighted materials on a DVD, whether

             16           you can reverse engineer CSS.

             17                  MR. COOPER:  And my point was

             18           those issues have been developed, so far

             19           as I know, in connection with this

             20           litigation.  So what you are really

             21           asking him to provide is information that

             22           he has discussed with counsel and that's

             23           the reason for my objection.

             24           Q.     So there were no positions developed

             25   on this prior to litigation?


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              1                         Jacobsen

              2                  MR. COOPER:  You can ask him if he

              3           was aware of any discussions, outside of

              4           discussions with legal counsel, and I

              5           think he will tell you "no."

              6                  If that is the question, do you

              7           have any such information outside of

              8           discussions with legal counsel?

              9                  THE WITNESS:  No.

             10   BY MR. GARBUS:

             11                    Confidential

             12 

             13 

             14         

             15 

             16 

             17 

             18 

             19           Q.     Did you ever have a discussion with

             20   any of them?  Did you ever tell them whether it is

             21   MPAA's policy or position that it is piracy to

             22   reverse engineer CSS?

             23           A.     No.

             24                  MR. COOPER:  Go ahead.  I expected

             25           that to be your answer.


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              2           A.     No.

              3           Q.     With respect to those forty to

              4   forty-five people, did you ever have a conversation

              5   with them whether or not it was ever MPAA's policy

              6   or position, prior to the institution of this

              7   lawsuit, that to make fair use of copyrighted

              8   materials on a DVD was considered to be piracy?

              9           A.     No.

             10           Q.     Did the question ever arise whether

             11   playing a DVD on a non-CSS equipped player would be

             12   considered by the MPAA, either its policy or

             13   position, to be piracy?

             14                  MR. COOPER:  Outside of

             15           discussions involving counsel.

             16           A.     Not that I am aware of.

             17           Q.     Did you know, at any time, that

             18   Linux had succeeded in making a DVD player?

             19           A.     I'm not sure who you refer to by

             20   "Linux."  I honestly thought it was just an

             21   operating system.  Is Linux an entity?  I don't

             22   know.

             23           Q.     Do you know whether or not there is

             24   any open source program that allows DVD to be

             25   played after it has been unscrambled by deCSS?


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              2           A.     Are you asking me are there any

              3   authorized license players that have been made for

              4   DVD playback in an open source mode, such as Linux?

              5   I believe that there have.

              6           Q.     Where?

              7           A.     I think recently there have been two

              8   licenses issued to Linux-based players.

              9           Q.     When was that?

             10           A.     I don't know.

             11   RQ             MR. GARBUS:  May I have copies of

             12           those licenses?

             13                  MR. COOPER:  Are you asking me?

             14                  MR. GARBUS:  Yes.

             15                  MR. COOPER:  I can't answer your

             16           question.  I don't know who has them,

             17           whether they are in any of the parties'

             18           possession, but I will take your request

             19           under advisement.

             20           Q.     You said, "two Linux entities"?  Is

             21   that the description you used?

             22           A.     No.  I believe two entities who

             23   obtained licenses for DVD players, which would, in

             24   fact, play DVDs on a Linux operating system.

             25           Q.     Do you know how they would do that?


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              2   Would they do it through the use of deCSS?

              3           A.     I haven't the slightest idea how

              4   they would do it.

              5           Q.     So as you sit here today, you don't

              6   know whether or not you have licensed systems that

              7   of necessity depend on deCSS to play DVD movies?

              8                  MR. COOPER:  Mischaracterizes the

              9           witness' testimony and I think, more

             10           importantly, neither the witness nor any

             11           of the plaintiffs in this action are the

             12           license source of the CSS.

             13           Q.     Do you know if DVD CCA entered into

             14   any contracts with those two entities?

             15           A.     That was my understanding, that DVD

             16   CCA had issued two licenses.

             17           Q.     Where did you get that understanding

             18   from?

             19           A.     I don't remember.

             20           Q.     When did you get that information?

             21           A.     Recently.

             22           Q.     Within the last week?

             23           A.     I don't recall whether it was in the

             24   last week, but it's recent.

             25           Q.     Was that within the last month?


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              2           A.     I would say so, yes.

              3           Q.     Was that communication made to you

              4   in a letter or orally?

              5           A.     I don't recall if I read it in a

              6   digest or if it was communicated to me by someone

              7   at MPAA.  I don't remember.

              8           Q.     When you say a digest, what kind of

              9   digest are you talking about?

             10           A.     A DVD report which comes out weekly

             11   and I usually scan, and I may have read it there.

             12           Q.     Have you ever seen -- when I say

             13   "you," you or any of the plaintiffs -- these

             14   license agreements?

             15           A.     Have I?

             16                  MR. COOPER:  Does your comment

             17           right now, does that mean that you are

             18           going to testify about your personal

             19           knowledge as opposed to the knowledge of

             20           the various plaintiffs, other than Time

             21           Warner?

             22           A.     I'm not exactly sure what license

             23   agreements you are referring to.

             24           Q.     Those two that you referred to

             25   before.


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              2           A.     I don't know whether any of the

              3   member companies have seen those licensing

              4   agreements.  I have not.

              5           Q.     Do you know where those two entities

              6   that entered into those license agreements were

              7   from?  Were they California entities?

              8           A.     I do not know.

              9           Q.     Were they American entities?

             10           A.     I don't remember.

             11           Q.     When you use the term "DVD report,"

             12   what report is that?

             13           A.     It's an independently published

             14   weekly digest that comes out on DVD in its

             15   development report.

             16           Q.     Who publishes it?

             17           A.     I don't know.

             18   RQ             MR. GARBUS:  May I have a copy of

             19           that DVD report that referred to those two

             20           licenses?

             21                  MR. COOPER:  We will take it under

             22           advisement, although I note that the

             23           witness wasn't certain that the

             24           information came from such a report.

             25           Q.     Do you know the address of such


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              1                         Jacobsen

              2   report?

              3           A.     I don't.

              4                  MR. COOPER:  The publisher of the

              5           report?

              6                  MR. GARBUS:  Yes.

              7           Q.     Is this on the internet or --

              8           A.     It's hard copy.

              9           Q.     Does the MPAA have a policy that

             10   says it is piracy to make a home copy of a movie on

             11   a video cassette?

             12                  MR. COOPER:  Are you saying to

             13           make the copy onto a video cassette

             14           medium?

             15                  MR. HERNSTADT:  From to.

             16                  MR. COOPER:  From a video cassette

             17           onto some other medium, regardless --

             18                  MR. HERNSTADT:  Onto a video

             19           cassette.

             20                  MR. COOPER:  To duplicate an

             21           existing VHS?

             22                  MR. HERNSTADT:  Yes.

             23           A.     Just to make sure I understand, you

             24   are talking about --

             25                  MR. GARBUS:  Why don't I rephrase


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              2           it.

              3           A.     If one of my member companies'

              4   authorized video cassettes, to put that in a VCR,

              5   you defeat the macrovision or any other device that

              6   is contained therein and you make another copy?

              7   The answer is yes, I would consider that to be

              8   piracy.

              9                  MR. COOPER:  Read back the last

             10           question and answer.

             11                  (Record read.)

             12   BY MR. GARBUS:

             13           Q.     Let me see if I understand.  If I

             14   buy a product, a DVD, and I want to make up a

             15   backup copy in one form or another in case I lose

             16   the DVD that I bought, which I paid for, is it the

             17   MPAA's policy that for me to do so would constitute

             18   piracy?

             19                  MR. COOPER:  Based on our prior

             20           colloquy and the witness' prior

             21           testimony, I can already tell you that he

             22           would only know the answer to that based

             23           on conversations with counsel.

             24           Q.     Is that true?  You have no

             25   independent view of that?


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              2                  MR. COOPER:  This is with respect

              3           to DVDs.

              4           A.     That's correct.

              5                  MR. HERNSTADT:  Off the record.

              6                  (Discussion off the record.)

              7   BY MR. GARBUS:

              8           Q.     Do you know if there is a policy at

              9   the MPAA as to whether or not if you buy a DVD and

             10   make a backup copy of that DVD to protect you in

             11   the event you lose the DVD, that it is the policy

             12   of the MPAA that that is piracy?

             13           A.     By "piracy," I am assuming you are

             14   asking me whether or not I would consider that to

             15   be an unauthorized copy?

             16           Q.     Yes.

             17                  MR. COOPER:  He is asking whether

             18           there is such a policy that you are aware

             19           of.

             20           A.     Every fact situation may or may not

             21   be different.  I don't think I can answer that

             22   there is an overriding policy in the abstract as

             23   opposed to present it in a particular fact

             24   situation.

             25           Q.     In other words, the facts determine


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              1                         Jacobsen

              2   whether or not the MPAA would consider it piracy to

              3   make a backup copy of a DVD so that I can have a

              4   copy in the event I lost the DVD or in the event I

              5   wanted to play the DVD, the movie, on another

              6   medium within my house.

              7                  MR. COOPER:  That is a

              8           mischaracterization of what the witness

              9           said.  I think what he said was there is

             10           no policy specific to those facts.

             11                  MR. GARBUS:  Let's go back to the

             12           beginning.

             13   BY MR. GARBUS:

             14           Q.     I think we had a different

             15   understanding.  As I understand your testimony, and

             16   you tell me if I am wrong, that it is the

             17   particular facts of a particular case -- and by

             18   "case" I don't mean legal case.  I mean instance.

             19                  -- which determines whether or not

             20   making a backup copy of a DVD that you purchase is

             21   piracy.  Is that right?

             22                  MR. COOPER:  Mr. Garbus, I have

             23           been trying to make sure that we

             24           distinguish between legal advice that the

             25           witness is aware of and policies, as I


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              2           believe you have attempted to establish a

              3           distinction between the two.

              4                  I think the witness has said

              5           that there is no fact-specific policy.

              6           What I don't want to do is have him

              7           start to go down the road of talking

              8           about legal opinions that he

              9           understands from his discussions with

             10           counsel.

             11           Q.     When you had discussions within the

             12   MPAA group, putting counsel aside, prior to the

             13   time this litigation was instituted, did anyone

             14   raise the question about whether or not it's piracy

             15   to make a backup copy of a DVD in the event you

             16   lose one?

             17                  MR. COOPER:  Other than

             18           discussions with counsel.

             19           Q.     Other than discussions with counsel.

             20           A.     I don't believe I have ever had that

             21   conversation in the DVD context, no.

             22           Q.     Did you have that conversation in

             23   the VCR context?

             24                  MR. COOPER:  Other than with

             25           counsel.


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              2           A.     Yes.

              3           Q.     What is the policy in the VCR

              4   context?

              5                  MR. COOPER:  Assuming there is

              6           one.

              7           A.     Can I talk to my counsel for a

              8   minute off the record?

              9                  MR. HERNSTADT:  Is this about

             10           privilege?

             11                  THE WITNESS:  Yes.  It might be.

             12                  MR. COOPER:  It is to determine

             13           whether there is a privilege.

             14                  (Witness consulted with Counsel.)

             15                  MR. GARBUS:  Read back the last

             16           question.

             17                  (Record read.)

             18           A.     I don't want to quibble about words,

             19   but I have trouble with the term "policy."

             20                  Can I say that as a general rule it

             21   is MPAA's position that the taping of an authorized

             22   video cassette, put it into a VCR, chaining that

             23   VCR into another VCR, putting a blank video

             24   cassette and creating a copy is an unauthorized act

             25   that we would include within the overall rubric of


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              1                         Jacobsen

              2   piracy.

              3           Q.     And your answer, then, if I took out

              4   the words "video cassette" and included the words

              5   "DVD," your answer would be the same?

              6           A.     Generally.  Obviously you couldn't

              7   put it into a VCR, but if there were a way to make

              8   the copy, the general rule would be, yes, we would

              9   view that as falling under the rubric of piracy.

             10           Q.     So that if I had a video cassette

             11   and let's assume in my house I had five video

             12   cassette players and I wanted to make five copies

             13   of the one that I bought for each of those video

             14   players, the MPAA policy or position would be that

             15   that constitutes piracy; is that right?

             16                  MR. COOPER:  Assumes facts not in

             17           evidence.

             18           A.     I mean the general rule, as I

             19   stated, would be that the making of a copy would be

             20   an unauthorized act.

             21           Q.     And if I were, let's say, a movie

             22   critic who wanted to make a copy of the video

             23   cassette so that I could watch it in my bedroom or

             24   some place else, it is the MPAA's view that that

             25   would be piracy?


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              2                  MR. COOPER:  Here is where I think

              3           you cross the line from general rules to

              4           specific application of general rules to

              5           specific facts, in which I believe on

              6           proper foundation the witness will tell

              7           you his only knowledge comes from

              8           discussions with counsel.

              9           Q.     If a university wants to make a copy

             10   of a video cassette or a DVD for teaching purposes,

             11   is it the MPAA's view that making that copy would

             12   constitute piracy?

             13                  MR. COOPER:  Calls for

             14           attorney-client privilege information.

             15           Q.     Do you know if the MPAA has a

             16   position or policy on whether or not a university

             17   or a library making a second copy as a backup copy

             18   would constitute piracy?

             19                  MR. COOPER:  That's a "yes" or

             20           "no" question, whether you know that the

             21           MPAA has such a position or policy.

             22           A.     I can't answer it "yes" or "no,"

             23   because everything would be fact specific and it

             24   would be something that is discussed with lawyers

             25   when the facts are accumulated.


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              2           Q.     So that if university A wanted to

              3   make a copy and if university B wanted to make a

              4   copy, the determination of what is or is not piracy

              5   could be different in those two cases?

              6                  MR. COOPER:  You are asking him

              7           now to draw a legal conclusion based on a

              8           limited set of facts and I submit an

              9           insufficient set of facts to draw such a

             10           conclusion indicates that this witness is

             11           not here to do that.

             12           Q.     When we talk about policies or

             13   positions, is there any place where MPAA or movie

             14   studios had anything that looked like policies or

             15   positions on any of these matters, other than in

             16   the files of lawyers at Proskauer or Weil Gotshal,

             17   making a distinction between lawyers that worked

             18   for you or with you at the MPAA and lawyers who

             19   work in these movie houses?

             20                  MR. COOPER:  Do you understand the

             21           question?

             22           A.     I don't understand the question.  I

             23   got lost.

             24           Q.     You got lost in the sophistication

             25   of the question?


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              2           A.     Yes.  Actually, I did.  Could we

              3   read it back, please?

              4                  MR. GARBUS:  Read it back.

              5                  (Record read.)

              6                  MR. GARBUS:  Off the record.

              7                  (Discussion off the record.)

              8                  MR. COOPER:  Why don't you answer

              9           the question as to whether there are any

             10           written policies you are aware of on the

             11           subject.

             12           A.     And the subject would be the general

             13   rule of copying from one to another?

             14           Q.     Yes.

             15           A.     Not that I am aware of.

             16           Q.     Does the MPAA -- I used the words

             17   positions or policies and you may think I am

             18   talking about a book that has policies and

             19   positions, but I am going beyond that.

             20                  Are there letters or testimonies

             21   before public entities like Congress or the

             22   Copyright Office where the MPAA has stated a

             23   position or a view we respect to any of the issues

             24   we have been talking about?  Namely, the making of

             25   second copies either for the home, for library, or


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              2   for university.  That you are aware of.

              3           A.     I am not aware of any specific

              4   testimony.  I would be surprised if it hadn't

              5   occurred at some time.

              6           Q.     Have you ever read Mr. Valenti's

              7   testimony before the Congress on the question of

              8   the passage or creation of the DMCA?

              9           A.     I have not.

             10           Q.     Mr. Valenti is the head of the

             11   organization?

             12           A.     Yes, he is.

             13           Q.     Do you accept that, when he says

             14   that the MPAA has taken a position or has a policy

             15   that it is true?

             16                  MR. COOPER:  Are you asking him in

             17           the legal sense or that he believes that

             18           to be the case?

             19           Q.     Does Valenti speak for the MPAA?

             20                  MR. COOPER:  It's the same

             21           question.

             22                  MR. GARBUS:  Right.

             23                  MR. COOPER:  Mine to you.  You are

             24           asking him in the legal sense or that he

             25           believes on his position that when he


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              1                         Jacobsen

              2           speaks, he speaks for the --

              3                  MR. GARBUS:  Whatever he thinks.

              4           A.     My belief is that when Mr. Valenti

              5   speaks, he speaks on behalf of the MPAA.

              6           Q.     How does the MPAA arrive at policies

              7   or positions?  In other words, what is the process?

              8                  MR. COOPER:  Overbroad.

              9           A.     I'm sorry.  I'm not exactly certain

             10   what you mean.

             11           Q.     If the MPAA takes a policy or

             12   position and Mr. Valenti articulates an opinion

             13   before Congress, what is the internal process, if

             14   there is one?  Maybe it is ad hoc.

             15           A.     I don't know.  I have not been

             16   included in that process in the short time I have

             17   had this position.

             18           Q.     So you have never been included,

             19   since April 1st, in the process of making policies

             20   or positions or cooperating in the making of

             21   policies or positions at the MPAA; is that right?

             22           A.     No.  You asked that were articulated

             23   by Mr. Valenti.  I have not been involved in any

             24   situation where he has articulated a policy.

             25           Q.     Have you ever been involved in any


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              2   situation, since you have been employed by the

              3   MPAA, where anybody has articulated a policy or

              4   position with respect to deCSS?

              5           A.     We are talking specifically deCSS

              6   now?

              7           Q.     Yes.

              8           A.     I think the development of any

              9   policy discussions I have been in have been with

             10   counsel.

             11           Q.     Prior to the time that the cease and

             12   desist letters were sent out, did the MPAA

             13   articulate a position that it was their view that

             14   the use of deCSS constitutes piracy?

             15           A.     I'm sorry.  Prior to the sending out

             16   of the C & D?

             17           Q.     Yes.

             18           A.     Articulate to whom?

             19           Q.     To anyone.

             20           A.     Not that I am aware of.

             21           Q.     Prior to the time that the cease and

             22   desist letters were sent out, did the MPAA ever

             23   articulate any position or policy, to your

             24   knowledge, on whether making copies of DVDs for

             25   home, university, or library use constituted


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              2   piracy?

              3                  MR. COOPER:  Assumes facts not in

              4           evidence.  When you say "articulate," you

              5           mean express to some third party outside

              6           of the member companies, the MPAA, and

              7           their counsel?

              8                  MR. GARBUS:  Yes.

              9           A.     I don't know the answer.

             10           Q.     Does the MPAA issue press releases?

             11           A.     Yes.

             12           Q.     Does the MPAA have a file of those

             13   press releases?

             14           A.     I assume that we do.

             15                  MR. GARBUS:  I would ask for the

             16           production of that in so far as they are

             17           relevant to deCSS and in so far as any of

             18           them are after October 1st.

             19                  MR. COOPER:  Whether or not

             20           relevant?

             21                  MR. GARBUS:  Whether or not

             22           relevant.

             23           Q.     Does the MPAA issue policy

             24   statements from outside the United States or does

             25   everything come from inside the United States?


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              2                  MR. COOPER:  Read back the

              3           question, please.

              4                  (Record read.)

              5           A.     I'm sorry.  Again, definitionaly I

              6   am having difficulty with what you mean by "policy

              7   statement."

              8              

              9                   Confidential

             10 

             11 

             12 

             13           A.     It would depend upon the

             14   circumstances of the statement.

             15           Q.     To your knowledge, has anyone

             16   outside of the United States issued any statements

             17   relevant to deCSS?

             18                  MR. COOPER:  That is, any one

             19           representing the MPAA?

             20                  MR. GARBUS:  Yes.

             21           A.     Are you including in that, you mean

             22   interviews and newspaper articles?

             23           Q.     Yes.

             24           A.     I don't know for a fact.  I think it

             25   is likely, but I don't know for a fact.


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              2           Q.     Do you have files on that?

              3           A.     If in fact -- if it was during a

              4   news article or during an interview for a news

              5   article and if in fact we did obtain a copy of

              6   that, it probably has been kept.

              7           Q.     That would be in Encino?

              8           A.     I believe so.

              9   RQ             MR. GARBUS:  I would ask for a copy

             10           of that.

             11           Q.     With respect to congressional

             12   testimony, Mr. Valenti and others who have

             13   testified before Congress or the Copyright Office

             14   concerning the MCA, would you have copies of that

             15   testimony?

             16           A.     Would I, in the context of being the

             17   Motion Picture Association?  I believe there would

             18   be copies.

             19   RQ             MR. GARBUS:  Would you produce that.

             20           Would you also produce statements made or

             21           exhibits given to the Copyright Office

             22           relating to deCSS?  Under advisement?

             23                  MR. COOPER:  Yes.  That's true for

             24           all of your requests.

             25   RQ             MR. GARBUS:  Would you also give us


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              1                         Jacobsen

              2           any statements made by Mr. Valenti or

              3           anybody at the MPAA before the Congress or

              4           the Copyright Office concerning the MPAA,

              5           as well as statements, if there are any,

              6           directed to the issues I raised before?

              7           Namely, whether or not you can make a home

              8           copy of a DVD, whether a university can

              9           make a home copy of a DVD, whether a

             10           library can make a home copy of a DVD.

             11                  Will you, Mr. Cooper, in the

             12           spirit of generosity, look at your

             13           files and see if you can produce that?

             14                  MR. COOPER:  I will certainly take

             15           it under advisement, spiritedly and

             16           generously.

             17   RQ             MR. GARBUS:  With respect to the

             18           questions before, with respect to whether

             19           it is the MPAA's policy that it is policy

             20           or position, that it is piracy to reverse

             21           engineer CSS to make fair use of

             22           copyrighted materials on a DVD; 3, play DVD

             23           on a non-CSS equipped player, would you

             24           give me, any public statements,

             25           congressional testimony, or any other


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              1                         Jacobsen

              2           public records relating to whether or not

              3           the MPAA considers policy or position, that

              4           to be piracy?

              5                  MR. COOPER:  I will take it under

              6           advisement.

              7   BY MR. GARBUS:

              8           Q.     What was the name of your

              9   predecessor at the job you took over on April 1st?

             10                    Confidential

             11           Q.     Where is he now?

             12           A.     He is currently employed by the

             13   IDSA.

             14           Q.     Which is?

             15           A.     It is a trade association

             16   representing the -- basically, the games industry.

             17           Q.     How long had he held your position?

             18           A.     Roughly two years.

             19           Q.     Is the position that you now have

             20   similar to the position you had before except you

             21   went from America to worldwide?

             22           A.     My previous position I ran the

             23   United States program.

             24           Q.     Who now runs the American program?

             25                     Confidential


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              2           Q.     Acting director.  That may or may

              3   not be a permanent position?

              4           A.     That's correct.

              5           Q.     Did you know the DVD CCA was going

              6   to file a trade secret suit -- when I say "you," I

              7   am now referring to the MPAA -- before the suit was

              8   filed in California?

              9                  MR. COOPER:  Other than through

             10           discussions with counsel.

             11           A.     Any information I had originated

             12   from discussions with counsel.

             13           Q.     Did you ever see the legal papers in

             14   that proceeding?

             15           A.     I don't think so.

             16           Q.     Were you ever consulted by anybody

             17   at the MPAA, other than counsel?  To your

             18   knowledge, was anybody at the MPAA ever consulted

             19   by anybody at DVD CCA before the lawsuit was filed?

             20           A.     I may be mistaken.  I thought there

             21   were two parts to that question.  Could you please

             22   read it back to make sure I answer right.

             23                  (Record read.)

             24           A.     Any information I would have about

             25   that would have come through counsel.


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              2           Q.     In other words, it would not have

              3   come from any of the people on your staff in

              4   California, the place where the lawsuit was filed?

              5           A.     That's correct.

              6                  MR. COOPER:  Other than the

              7           lawyers in California.

              8                  THE WITNESS:  That's right.

              9           Q.     Do you know why the decision was

             10   made to file the lawsuit first in California by the

             11   DVD CCA relating to DVD CSS and then a later

             12   lawsuit to be filed in New York by the MPAA?

             13                  MR. COOPER:  Assumes facts not in

             14           evidence.  Answer the question "yes" or

             15           "no," please.

             16           A.     Any information I would have about

             17   the filing of the lawsuit in New York I obtained

             18   through conversations with counsel.  Any

             19   information that I have about the filing of the

             20   lawsuit in California I obtained through

             21   conversations with counsel.

             22           Q.     Is it fair to say that, to your

             23   knowledge, after the filing of the DVD CCA lawsuit,

             24   that there were many more website postings of deCSS

             25   than there had been before?


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              2           A.     I don't know the answer.

              3           Q.     Do you know whether or not the total

              4   number of postings of deCSS before the filing of

              5   the California lawsuit was more or less than

              6   twenty-five?

              7           A.     I don't know for sure.

              8           Q.     Is there any information at the MPAA

              9   which shows you, either because of downloaded

             10   material or because of investigations, that you or

             11   the studios made the number of sites at any

             12   particular time or month or week from October 1st

             13   to the present?

             14           A.     Were you asking if there is a list

             15   that we maintained that indicates the sites?

             16           Q.     Either a list or any other kind of

             17   documentation.  Namely, that you had downloaded

             18   such-and-such on October 1st or that you had

             19   downloaded such-and-such on December 1st.  Is there

             20   any way that I can trace or you can trace the

             21   pattern of postings and linkings from October, then

             22   looking at December, then looking at January, and

             23   then looking at now?

             24                  MR. COOPER:  You are focusing on

             25           the dates of posting?


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              1                         Jacobsen

              2                  MR. GARBUS:  The dates that you

              3           learned of them or the dates of postings

              4           or whenever you learned them.

              5           A.     There is a list that we maintain.

              6   It has not been maintained since -- I don't believe

              7   it has been obtained since October 1st, however, so

              8   it would be incomplete.

              9           Q.     So tell me about this list.

             10                  MR. COOPER:  Let's take it a step

             11           at a time.  I want to make sure that we

             12           don't get into the substance of the list

             13           until there is a determination as to

             14           whether it is subject to work product or

             15           attorney-client privilege.

             16                  THE WITNESS:  Okay.

             17                  MR. GARBUS:  Off the record.

             18                  (Discussion off the record.)

             19                  MR. COOPER:  Read back the pending

             20           question.

             21                  (Record read.)

             22   BY MR. GARBUS:

             23           Q.     What is it?  Where is it?  Exactly

             24   what does the list contain and how was it compiled?

             25                  MR. COOPER:  You can answer what


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              1                         Jacobsen

              2           it is and where it is and if it's --

              3           let's start with those two.

              4           A.     It is a list of sites on the

              5   internet which have been identified that were

              6   either posting or linking the deCSS utility.

              7           Q.     Tell me, when was the list first put

              8   together?

              9           A.     As I recall, it was commenced

             10   sometime in January of this year.

             11           Q.     So in other words, if I understand

             12   it, in January you said, let's find out -- when I

             13   say "you," the MPAA.

             14                  -- let's find out how many sites

             15   from October to now, January, have linked or posted

             16   deCSS.  So you look back two or three months?

             17           A.     I don't remember for sure, but I

             18   think that may be incorrect.  I think we may have

             19   started with sites we located in January and worked

             20   forward.  I'm not certain.

             21           Q.     If you started in January and worked

             22   forward, how do you know when that site went up,

             23   whether it was October, November, December?  You

             24   just assumed that any site that you saw in January

             25   went up in October, November, December?  Is that


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              2   it?

              3           A.     No.

              4           Q.     Tell me.

              5           A.     I don't think any such assumption is

              6   made about when the site went up.  It is when we

              7   discovered the site.  The site could have been

              8   up --

              9           Q.     In January?

             10           A.     It could have been up -- it could

             11   have been up any period of time.  The question is

             12   when did we, as MPAA, discover the fact that the

             13   site existed.

             14           Q.     And you only discovered that in

             15   January?

             16                  MR. GARBUS:  Off the record.

             17                  (Discussion off the record.)

             18   BY MR. GARBUS:

             19           Q.     So before you made a list in

             20   January, you had already been aware that there were

             21   sites that either linked or posted deCSS?

             22           A.     That's correct.

             23           Q.     And then you started to put the list

             24   together in January?

             25           A.     That's my recollection, yes.


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              2   RQ             MR. GARBUS:  I would like all

              3           documentation you have concerning the first

              4           time you learned about these postings or

              5           linkings in November and December.  I would

              6           like a copy of that list.

              7           Q.     Who told you to make that list?  Was

              8   that your own decision?

              9           A.     I'm sorry.  What list?  I did not

             10   describe --

             11                  MR. COOPER:  Let's separate out

             12           the demand for the document, which was

             13           directed to me, and we will take it under

             14           advisement and we will determine whether

             15           it is subject to attorney-client

             16           privilege and work product doctrine.

             17                  Now he is asking you a follow-up

             18           question with respect to the creation

             19           of the document and asking whether you

             20           know who requested it be created in the

             21           first instance.

             22                  THE WITNESS:  But that's not what

             23           I understood his question to be.  The

             24           question, as I understood it, dealt with

             25           a list of sites that were found in


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              2           November and December.  I don't know that

              3           they are on a list.

              4   BY MR. GARBUS:

              5           Q.     But you have some documentation in

              6   November and December of having known of certain

              7   sites?  They may be on a list?  They may be on a

              8   piece of paper; right?

              9           A.     That's correct.

             10           Q.     And then they are made into a list,

             11   more or less, in January?

             12           A.     I'm sorry, but that's not what I

             13   testified to.  At least I didn't intend to testify

             14   that way, if I did.  In January a list was

             15   commenced.  I don't know whether or not sites that

             16   were located in November and December --

             17           Q.     Are included?

             18           A.     -- were put on that list or whether

             19   they started with the first site they discovered in

             20   January or the day the list was created and worked

             21   forward.

             22           Q.     Now, that January list, has it been

             23   continually brought up-to-date?

             24           A.     Yes.

             25           Q.     On a daily basis?


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              2           A.     On a weekly basis.

              3           Q.     Have you downloaded in hard copy the

              4   results of those lists?

              5                  MR. COOPER:  I don't understand

              6           the question.

              7   RQ             MR. GARBUS:  Will you give me a copy

              8           of the disk, if there is one, that

              9           indicates what you did with this list after

             10           January and/or give me a copy of any papers

             11           that reflect the continuation of that list

             12           from the date it was first created until

             13           the present day?

             14                  MR. COOPER:  I will take it under

             15           advisement.

             16   BY MR. GARBUS:

             17                    

             18                    Confidential

             19 

             20 

             21 

             22 

             23           Q.     Did you ever check the sites to see

             24   whether or not those sites that said they posted

             25   deCSS or linked to deCSS actually did?


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              2           A.     Did I?

              3           Q.     Did you or did anyone at the MPAA?

              4           A.     Yes.  People at the MPAA have.

              5           Q.     So the list, then, is, if you will,

              6   a screened list in that if somebody says I'm

              7   linking to a deCSS site or imposing a deCSS site

              8   and you determine they weren't, then that

              9   particular site is not on the list?

             10           A.     That would be correct.

             11           Q.     Once you found a particular site

             12   that either linked or posted, did you download hard

             13   copy, papers about what was on the site?

             14           A.     I don't know the answer.

             15   RQ             MR. GARBUS:  Mr. Cooper, in the

             16           spirit of geniality, will you find out the

             17           answer immediately and give us any paper

             18           copies that there are immediately?

             19                  MR. COOPER:  I will take that, as

             20           well, under advisement.

             21 

             22 

             23                     Confidential  

             24 

             25 


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                              INTERIM COURT REPORTING

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              2

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              4                     Confidential

              5

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              8

              9

             10           Q.     You do know that some of the

             11   plaintiffs in the case, for example, Disney, have

             12   their own search engines?  Do you know that?

             13           A.     I do know that they do some of their

             14   own searching.  I don't know if they have their own

             15   search engine.

             16           Q.     Have you ever heard of something

             17   called Infoseek?

             18           A.     No.

             19           Q.     Have you ever heard of something

             20   called Go?

             21           A.     Yes.

             22           Q.     What is Go?

             23           A.     I believe that it is some internet

             24   provider that is, I believe, is now owned by the

             25   Disney Company.  I don't know exactly what Go does.


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              1                         Jacobsen

              2           Q.     Have you ever gone to any of the

              3   Disney search engines and seen whether or not they

              4   link to deCSS?

              5                  MR. COOPER:  Assumes facts not in

              6           evidence.  Calls for speculation.

              7           A.     I have not.

              8           Q.     Do you know whether any

              9   Disney-linked sites post deCSS?

             10           A.     I don't.

             11           Q.     Do you know how many people, if any,

             12   learned about deCSS through Disney-linked sites?

             13           A.     I don't.

             14           Q.     Would your answer be the same with

             15   respect to the other movie companies, assuming

             16   those that have search engines?

             17                  MR. COOPER:  It assumes facts not

             18           in evidence.  I don't know if any of them

             19           do.  Do you?

             20           A.     You are talking about only the ones

             21   that I am here to represent?

             22           Q.     Yes.

             23           A.     So Time Warner would be excluded?

             24           Q.     Yes.

             25           A.     My answer would be the same.  I


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              1                         Jacobsen

              2   don't know.

              3           Q.     At the time that cease and desist

              4   letters were sent, whenever they started to send

              5   the cease and desist letters, were any cease and

              6   desist letters sent by Disney to Disney?

              7           A.     I don't know that answer.

              8           Q.     Do you know if any cease and desist

              9   letters were sent to any plaintiffs in this case?

             10           A.     I don't know the answer to that.

             11           Q.     Do you know if there are any

             12   responses to any of the plaintiffs in this case to

             13   any cease and desist letters that may have been

             14   sent by any plaintiffs?

             15           A.     I think I lost it.  You are talking

             16   about do I know of any responses that one of the

             17   plaintiffs may have made to another plaintiff who

             18   sent --

             19                  MR. COOPER:  His question was just

             20           taken off of the last one.  He just asked

             21           you whether you knew of any cease and

             22           desist letters sent on behalf of the

             23           plaintiffs to any of the plaintiffs in

             24           connection with deCSS and now he is

             25           asking you whether there had been any


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              1                         Jacobsen

              2           responses to any such letters that you

              3           were aware of.

              4                  THE WITNESS:  I don't know.

              5           Q.     Do you understand that Mr. Geckner

              6   has previously stated that it was the policy of the

              7   MPAA that there were different rules and

              8   regulations with respect to VCRs and DVDs in so far

              9   as fair use was involved?  Do you know that one way

             10   or the other?

             11                  MR. COOPER:  Assumes facts not in

             12           evidence.

             13           A.     I do not know.

             14           Q.     Do you know whether or not the MPAA

             15   has ever said that the fair use rules that apply to

             16   VCRs also apply to DVDs?

             17           A.     I do not.

             18           Q.     Do you know what the MPAA has said

             19   publicly about the fair use rules for libraries,

             20   universities, and academics?

             21           A.     I have seen a brochure that is put

             22   out.  Actually, that is not on fair use.  No, I

             23   don't.

             24           Q.     What is this brochure?

             25           A.     It was on public performance.  I was


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              1                         Jacobsen

              2   thinking of the wrong question.  Sorry.

              3           Q.     Do you know who the counsel for DVD

              4   CCA is?  Weil Gotshal & Manges?

              5           A.     I know that that law firm represents

              6   them, yes.

              7           Q.     Have they ever been involved in any

              8   meetings that you have ever participated in with

              9   the MPAA people?

             10           A.     Yes.

             11           Q.     Where were these meetings?

             12           A.     There was one in Encino, California.

             13           Q.     Who was at the meeting?

             14           A.     Should I answer that?

             15                  MR. COOPER:  You can tell him who

             16           was present.

             17

             18

             19                     Confidential

             20

             21

             22

             23

             24

             25



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              2                     Confidential                      

              3           Q.     The good looking gentleman at the

              4   end of the table.

              5           A.     I can't remember the attorneys'

              6   name, but one of the attorneys from the Weil

              7   Gotshal law firm and some representatives from MEI.

              8                  MR. LITVACK:  I will stipulate to

              9           that.

             10           Q.     MEI?  What is that?

             11           A.     It's -- I always mispronounce

             12   this -- Matsushita and I don't know what the "EI"

             13   stands for, but it is basically the Matsushita

             14   company.

             15           Q.     Do you know which gentlemen from

             16   Matsushita were there?

             17           A.     I don't recall their names.

             18           Q.     Do you know what role they played

             19   with respect to CSS?

             20           A.     What role these gentlemen played

             21   with respect to CSS?

             22           Q.     What role Matsushita played with

             23   respect to CSS.

             24                  MR. COOPER:  I will let you get it

             25           from the witness.  I note that he is not


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              1                         Jacobsen

              2           here to testify on that subject.  Another

              3           witness is.

              4           A.     Not specifically.

              5           Q.     Do you know that they were one of

              6   the companies that helped develop CSS?

              7           A.     I believe that is true.

              8           Q.     Do you know who the other companies

              9   were?

             10           A.     I don't.

             11           Q.     Do you know that the DVD CCA is

             12   composed of the companies that developed CSS?

             13           A.     I did not know that.

             14           Q.     How many Matsushita representatives

             15   were there?

             16           A.     I think there may have been five.

             17           Q.     What were their names?

             18           A.     I don't remember their names.

             19           Q.     Were any of them officers of the DVD

             20   CCA?

             21           A.     I don't know the answer to that

             22   question.

             23  
 
             24                     Confidential

             25  


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              2  

              3  

              4                     Confidential  

              5  

              6  

              7  

              8  

              9  

             10           A.     Yes.

             11           Q.     And the gentleman who you called

             12   senior vice president of technology --

             13           A.     Is not a lawyer.

             14           Q.     What is his area?

             15           A.     Technology.

             16           Q.     What is his background?

             17           A.     I don't know.  I am not familiar

             18   with his background.

             19           Q.     When did this meeting take place?

             20           A.     I don't remember the dates.

             21           Q.     Was this before or after you have

             22   your new job?

             23           A.     Before.

             24           Q.     Was it before the beginning of the

             25   year?


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              1                         Jacobsen

              2           A.     I think it was, but I really don't

              3   remember for sure.

              4           Q.     Was it after deCSS was published?

              5           A.     Yes.  I believe it was.

              6           Q.     Was this a meeting specifically

              7   addressed to the question of deCSS or were there

              8   other issues discussed, as well?

              9           A.     I don't remember.

             10           Q.     "I don't remember" to what?

             11           A.     What the topics were that were

             12   discussed and if there were any topics in addition

             13   to deCSS.

             14           Q.     So it is your memory that it may

             15   have been solely deCSS?

             16                  MR. COOPER:  I will let you answer

             17           just that much of the question and

             18           without any argument, Counsel, as long as

             19           you agree that that is not a waiver to

             20           the extent that there is any

             21           attorney-client privilege --

             22                  MR. GARBUS:  Nothing in that

             23           question is waived.

             24           A.     I don't recall if there were any

             25   other topics.


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              2           Q.     To your knowledge, were any of the

              3   Matsushita people involved with DVD CCA?

              4                  MR. COOPER:  Asked and answered.

              5           A.     I don't know.

              6           Q.     Was there anybody there designated

              7   as a DVD CCA employee?

              8                  MR. COOPER:  Asked and answered.

              9           A.     I don't know.

             10           Q.     What time did the meeting start?

             11           A.     I don't recall.

             12           Q.     Was a memo made by you of that

             13   meeting?

             14           A.     No.

             15           Q.     To your knowledge, was a memo made

             16   by anyone at MPAA of that meeting?

             17           A.     Not to my knowledge.

             18           Q.     Is this before the California

             19   lawsuit was started by the DVD CCA?

             20           A.     I don't remember.

             21           Q.     Was it after a judge's decision in

             22   the DVD CCA lawsuit?

             23           A.     I don't remember.

             24           Q.     Was the meeting more or less than

             25   two hours?


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              2           A.     I don't remember for sure.  It was

              3   fairly lengthy, but I don't remember.

              4           Q.     Four hours?

              5           A.     I don't think it was four hours.

              6           Q.     Three hours?

              7           A.     Possibly.

              8                  MR. GARBUS:  Off the record.

              9                  (Discussion off the record.)

             10   BY MR. GARBUS:

             11           Q.     Can you tell me what was discussed

             12   at that meeting?

             13                  MR. COOPER:  At this point, I want

             14           to confer with the witness to determine

             15           whether we have a privilege to assert.

             16                  MR. GARBUS:  Let me ask the

             17           questions.

             18           Q.     Who called you to the meeting?

             19                     Confidential

             20           Q.     Did he tell you at whose request the

             21   meeting was happening?

             22           A.     I don't remember.

             23           Q.     Did you know walking into the room

             24   that you were going to discuss deCSS?

             25           A.     I don't remember.  Possibly, but I


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              1                         Jacobsen

              2   don't remember.

              3           Q.     Do you generally walk into meetings

              4   when you don't know what is going to happen in the

              5   room?

              6           A.     Occasionally.

              7           Q.     In this particular case, your best

              8   memory is that you didn't know what was going to

              9   happen?

             10           A.     My best memory is I don't remember

             11   whether I knew or not.

             12           Q.     Did you ask Mr. Hirsch before you

             13   went into the meeting?

             14           A.     I don't remember.

             15           Q.     Where physically did the meeting

             16   take place in your building?

             17           A.     On the first floor, in a conference

             18   room.

             19           Q.     How big was the conference room?

             20           A.     Roughly the same size as this

             21   conference room.

             22           Q.     The table is about 35 feet, with

             23   about seats for 15 people?

             24           A.     Roughly.

             25           Q.     Were all the sites occupied?


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              2           A.     I don't think so.

              3           Q.     How did your senior vice president

              4   in charge of technical areas get to the meeting?

              5                  MR. COOPER:  Calls for

              6           speculation, lacks foundation.

              7           Q.     If you know.  Did you invite him to

              8   the meeting?

              9           A.     I did not invite him.

             10           Q.     You didn't invite anybody to the

             11   meeting?

             12           A.     That's correct.

             13           Q.     Did you at any time ask Mr. Litvack

             14   to come to the meeting?

             15           A.     No.

             16           Q.     Did you call any Proskauer people to

             17   come to the meeting?

             18           A.     No.

             19           Q.     Is it your understanding that Weil

             20   Gotshal called the meeting?

             21           A.     I don't have an understanding of how

             22   the meeting was called.

             23                     Confidential

             24

             25                  MR. COOPER:  Asked and answered.


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              2           A.     I do not know.

              3           Q.     How about the gentleman who is the

              4   senior vice president?

              5                  MR. COOPER:  If you are asking

              6           about MPAA people, you already asked him

              7           whether anybody at the MPAA, to his

              8           knowledge, made a memorandum and he

              9           answered no.  That would include those

             10           people, as well.

             11           Q.     Did you ever see any memorandum of

             12   that meeting?

             13           A.     I did not.

             14           Q.     Do you know if any of the Matsushita

             15   people made a memorandum of that meeting?

             16           A.     I do not know.

             17           Q.     Did you see anybody making notes at

             18   the meeting while you were there?

             19           A.     I don't remember.

             20           Q.     Other than that meeting, have you

             21   ever had any other meetings with anyone at Weil

             22   Gotshal concerning deCSS or DVDs?

             23           A.     Are you talking about face-to-face

             24   meetings?

             25           Q.     Well, let's start with first


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              1                         Jacobsen

              2   face-to-face and then we will get to telephone

              3   calls.

              4           A.     I don't remember having any other

              5   face-to-face meetings with Weil Gotshal people.

              6           Q.     Any other face-to-face meetings with

              7   any of these people at Matsushita?

              8           A.     No.

              9           Q.     Any face-to-face meetings with

             10   anybody else at DVD CCA?

             11           A.     No.

             12                  MR. COOPER:  It assumes facts not

             13           in evidence since he hasn't been able to

             14           tell you whether these people were

             15           representatives of DVD CCA.

             16           Q.     Did you have telephone conversations

             17   with anyone at Weil Gotshal?

             18           A.     I have not, but I have been present

             19   with counsel when telephone --

             20           Q.     Which counsel?

             21           A.     Mark Litvack.

             22                  -- when telephone conversations were

             23   had.

             24           Q.     How many such conversations?

             25           A.     I remember one.  I don't recall if


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              1                         Jacobsen

              2   there were more than that or not.

              3           Q.     You never had any conversations,

              4   yourself, directly with Weil Gotshal?

              5           A.     That's correct.

              6           Q.     So the only conversations you know

              7   are the conversations that Litvack had with Weil

              8   Gotshal?

              9           A.     That's correct.

             10           Q.     Do you know how many such

             11   conversations he had with Weil Gotshal?

             12           A.     No, I don't.

             13           Q.     Do you know whether he ever saw any

             14   of the DVD CCA papers before they were filed?

             15                  MR. COOPER:  You are talking about

             16           the court papers now?

             17                  MR. GARBUS:  Yes.

             18           A.     I don't know.

             19           Q.     Do you know whether he had any

             20   discussions with Weil Gotshal concerning any aspect

             21   of the DVD CCA case?

             22                  MR. COOPER:  Other than what he

             23           just testified to.

             24           A.     I don't know.

             25           Q.     Do you know if he was in court when


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              1                         Jacobsen

              2   Mr. Barsky was in court at any of the DVD CCA

              3   proceedings?

              4           A.     I don't think Mr. Litvack was in

              5   court.  I don't know if Mr. Barsky was.

              6           Q.     Do you know if any MPAA lawyer was

              7   in court?

              8           A.     Yes.

              9           Q.     Who?

             10           A.     Lori Donahue.

             11           Q.     When was she in court?

             12           A.     If I remember correctly, she was in

             13   court the day arguments were presented for -- I

             14   believe they asked for a temporary restraining

             15   order.  I'm not sure, but there were arguments

             16   about a motion that had been made and she was there

             17   to listen to the arguments.

             18           Q.     Did you see the transcript of that

             19   argument?

             20           A.     I did not.

             21           Q.     Do you know whether she identified

             22   herself as being present in the courtroom?

             23           A.     I don't know.

             24           Q.     Do you know whether she was

             25   designated in the transcript as a lawyer who was


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              1                         Jacobsen

              2   present in the courtroom?

              3           A.     I don't know.

              4           Q.     Was there any discussion that you

              5   had with her at any time about whether or not she

              6   should be in the courtroom?

              7           A.     With me?

              8           Q.     Yes.

              9           A.     No.

             10           Q.     Do you know how she got into the

             11   courtroom?  Who told her to go there?

             12           A.     I don't know.

             13           Q.     Do you know if she was told

             14   specifically not to identify herself to the court?

             15           A.     I'm sorry?

             16                  MR. COOPER:  One thing at a time.

             17           If you believe we have already intruded

             18           into the privilege, why don't we take a

             19           break.

             20                  MR. LITVACK:  Let's take a break.

             21                  (Counsel consulted with witness.)

             22   DI             MR. COOPER:  Just so we are clear,

             23           to the extent that the witness is aware of

             24           any specific communications, and I think he

             25           is about to tell you he is not aware of any


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              1                         Jacobsen

              2           specific communications --

              3                  MR. GARBUS:  Between who?

              4                  MR. COOPER:  Between him and

              5           Ms. Donahue who is one of the attorneys

              6           for the MPAA.

              7                  To the extent that he is aware

              8           of the substance of those

              9           communications, I admonish him not to

             10           reveal the substance of those

             11           communications.

             12   BY MR. GARBUS:

             13           Q.     Do you know of any lawyers from Weil

             14   Gotshal, if they were present at the court

             15   appearance here when an injunction was sought by

             16   the MPAA?

             17           A.     I don't know if they were or were

             18   not.

             19           Q.     Do you know if any lawyers from the

             20   DVD CCA were present?

             21           A.     I have no knowledge.

             22           Q.     To your knowledge, have the lawyers

             23   from the MPA, the DVD CCA, including in-house

             24   lawyers and their outside counsel, been exchanging

             25   documents concerning these two cases?


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              1                         Jacobsen

              2   DI             MR. COOPER:  If you know the answer

              3           to that question from an unprivileged

              4           source, then you can answer.  Otherwise, I

              5           want you to state that the only information

              6           that you have on that is from a privileged

              7           source.

              8           A.     I have no knowledge.

              9           Q.     Were you ever told of the result of

             10   what the DVD CCA obtained in the California court?

             11   Namely, the granting of an injunction?

             12           A.     I'm sorry.  Did I ever --

             13                  MR. COOPER:  He hasn't finished, I

             14           don't think.

             15                  MR. GARBUS:  I did.

             16           A.     Were you asking me if I ever found

             17   out what the result was?

             18           Q.     Yes.

             19           A.     Yes.

             20           Q.     From who?

             21           A.     I think from either Lori or Mark

             22   Litvack.  Lori Donahue or Mark Litvack.

             23           Q.     Do you know if they told you within

             24   the hour of the result?

             25   DI             MR. COOPER:  Having gone farther


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              1                         Jacobsen

              2           than I think is appropriate already with

              3           respect to communications with counsel, I

              4           don't want to give details of those

              5           communications.

              6           Q.     Do you know if it was an hour after

              7   the court decision?

              8                  MR. COOPER:  You are asking

              9           specifically about a substantive

             10           communication with counsel?

             11                  MR. GARBUS:  Just the timing of

             12           it, yes.

             13           Q.     In other words, did you learn within

             14   an hour after the California's court rendering of

             15   the injunction that that injunction had been

             16   granted?

             17                  MR. COOPER:  This is well beyond

             18           the purview of the witness' designation

             19           as a witness for the parties in this

             20           action or the MPAA.  I'm not sure what

             21           purpose can be served by it.

             22           Q.     Do you know if the MPAA originally

             23   got its information about the websites from the DVD

             24   CCA?

             25                  MR. COOPER:  You are talking about


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              1                         Jacobsen

              2           the posters and linkers that had been

              3           referred to earlier this afternoon in

              4           your colloquy with the witness?

              5                  MR. GARBUS:  Yes.

              6           A.     About posters and linkers who are

              7   posting and linking DVD CSS?

              8           Q.     Yes.

              9           A.     I don't know.

             10 

             11 

             12                     Confidential 

             13 

             14 

             15                  MR. COOPER:  We are talking

             16           specifically November-December?

             17                  MR. GARBUS:  Yes.

             18                  MR. COOPER:  If you don't know,

             19           that's the easy answer.

             20           A.     I don't know.

             21                  MR. GARBUS:  That's a little

             22           leading.

             23                  MR. COOPER:  I didn't mean it that

             24           way.  Please, let's not let -- the

             25           witness was waiting for me to state an


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           objection on privilege.  That's

              3           meaningless if he doesn't know the

              4           answer, in any case.

              5

              6                     Confidential

              7

              8

              9           A.     You are asking me if I know of

             10   anybody --

             11           Q.     At your place to anybody at their

             12   place.

             13           A.     To DVD CCA?

             14           Q.     Yes.

             15           A.     I don't know of any specific

             16   communications.

             17   RQ             MR. GARBUS:  Would you give me any

             18           documents, Mr. Cooper, that refer to any

             19           communications between DVD CCA and MPAA

             20           from October 1st to the present that are

             21           not privileged and if you claim the

             22           privilege, just let me know and log the

             23           existence of those documents.

             24                  I am referring to conversations

             25           concerning DVDs, DMCA, deCSS and CSS.


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2                  MR. COOPER:  I will take it under

              3           advisement.

              4           Q.     Sir, do you know what CSS-auth is?

              5           A.     I do not.

              6           Q.     Have you ever heard or seen that?

              7           A.     I believe I have heard of CSS-auth,

              8   but I don't recall in what context.

              9           Q.     Do you know what it is?

             10           A.     No.

             11           Q.     How about CSS-cat?

             12           A.     I don't think I ever heard of that.

             13           Q.     Do you know what an ATI Capture Card

             14   is?

             15           A.     I don't.

             16           Q.     Do you know what a DOD's Ripper is?

             17           A.     No.

             18           Q.     After the cease and desist letters

             19   went out, I think you have indicated that there

             20   were responses to some of them and that some of the

             21   sites took down the posting of the linking.  Do you

             22   have records with respect to which sites took down

             23   either linking or posting?

             24   DI             MR. COOPER:  Without going into any

             25           more of the substance with respect to any


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           such documents at least until we determine

              3           whether they are entitled to some

              4           privilege, you can answer that question

              5           "yes" or "no."

              6           A.     Yes.

              7                  MR. GARBUS:  What was the

              8           question?

              9                  (Record read.)

             10   RQ             MR. GARBUS:  Will you give them to

             11           me, Mr. Cooper?

             12                  MR. COOPER:  I will take it under

             13           advisement.

             14   BY MR. GARBUS:

             15           Q.     After the first meeting or maybe the

             16   only meeting with the Matsushita people, did you

             17   ever speak to anyone again from Matsushita

             18   concerning deCSS or DVDs?  By "you," I mean you,

             19   Motion Picture Association or any of the

             20   plaintiffs.

             21                  MR. COOPER:  Whether anybody at

             22           the member companies or the MPAA had any

             23           communications of which the witness is

             24           aware of with any representative of

             25           Matsushita after the meeting he referred


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              1                         Jacobsen

              2           to?

              3                  MR. GARBUS:  Yes.

              4                  MR. COOPER:  On any topic?

              5                  MR. GARBUS:  Relating to deCSS,

              6           DVDs or the DMCA or the DVD CCA.

              7                  MR. COOPER:  That is a "yes" or

              8           "no" question.

              9           A.     I'm sorry.  DeCSS, DVDs?  DVDs

             10   generally?

             11           Q.     Yes.

             12           A.     I would say yes.

             13           Q.     Tell me about that.

             14           A.     I don't have any specific knowledge,

             15   but there is a Copyright Protection Technology

             16   Working Group and it's my understanding that

             17   Matsushita would be a member of that group.  I know

             18   that MPAA attends and I know that representatives

             19   and member companies attend.

             20                  I believe they meet on a very set

             21   schedule of at least once a month.  So, I am

             22   assuming that there have been meetings with those

             23   people that were present and they probably would

             24   have discussed in a huge general forum DVD and DVD

             25   protection.


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           Q.     As a matter of fact, there was a

              3   meeting on 4/2000 by this group, which included

              4   members of Weil Gotshal, Proskauer Rose, DVD CCA,

              5   and the MPAA; isn't that right?

              6           A.     I am not familiar with the meeting.

              7           Q.     Do you know that there is an

              8   attendance record kept of those meetings?

              9           A.     I don't.

             10           Q.     Have you ever been to one of those

             11   meetings?

             12           A.     No.

             13           Q.     Tell me something about what that

             14   working group is.

             15           A.     My understanding of the working

             16   group, recognizing the fact that I am not involved

             17   in it, my understanding is that it is a working

             18   group to try to develop technologies which can be

             19   agreed upon by the content providers and the

             20   manufacturers of hardware equipment to protect

             21   intellectual property.

             22           Q.     Do you know how long the meetings

             23   take place each month?

             24           A.     I don't.

             25           Q.     Do you know where they take place?


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              1                         Jacobsen

              2           A.     I know some of them have taken

              3   place -- I think they take place in Southern

              4   California.

              5           Q.     When you say Southern California,

              6   are we talking about Los Angeles?

              7           A.     The Los Angeles area, that's

              8   correct.

              9           Q.     Do you know who sits on the board of

             10   this group or pulls this group together?

             11                  MR. COOPER:  This is plainly

             12           outside of this witness' knowledge and it

             13           is outside of the area for which he was

             14           designated as a witness for the parties

             15           in the MPAA, excluding Warner Brothers.

             16                  I am happy to have you establish

             17           a foundation for his lack of knowledge

             18           if that is really where we are going,

             19           but you are getting into a level of

             20           detail he plainly can't answer.

             21           Q.     Do you know which members of the

             22   MPAA representatives attended these meetings?

             23           A.     I believe Brad Hunt attends and I

             24   know Fritz Attaway has attended.  I don't know if

             25   he still attends or not.


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           Q.     Who is Brad Hunt?

              3           A.     Brad Hunt is based in Encino.  He is

              4   senior vice president and chief technology of MPAA.

              5           Q.     Is this meeting an all-day meeting?

              6                  MR. COOPER:  Talking about the

              7           regular meeting or the February 4th

              8           meeting?

              9                  MR. GARBUS:  February 4th meeting.

             10                  MR. COOPER:  He doesn't have any

             11           knowledge about that.

             12                  MR. GARBUS:  The regular meetings.

             13           A.     If you were referring to the

             14   February 4th meeting before, I don't know who

             15   attended.

             16           Q.     How long do these meetings take

             17   place?  Is it a day-long meeting?  A lunch?

             18           A.     I don't know.

             19           Q.     Do you know if records are kept of

             20   those meetings or minutes?

             21           A.     I do not know.

             22           Q.     Have you ever seen any minutes?

             23           A.     No.

             24           Q.     Do you know who is the head of this

             25   particular group?


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              1                         Jacobsen

              2           A.     I don't.

              3           Q.     Are Brad and Fritz permanent members

              4   of the group or does the MPAA rotate the people

              5   that they send to these groups?

              6                  MR. COOPER:  He is not the right

              7           person to answer these questions.

              8           A.     I don't know.

              9           Q.     Who would know the answer?

             10 

             11                     Confidential

             12 

             13 

             14 

             15 

             16   RQ             MR. GARBUS:  I ask for all

             17           correspondence between the MPAA and the DVD

             18           CCA, with each other and with Matsushita,

             19           concerning deCSS, CSS, DMCA, particularly

             20           after October 1st to date.

             21                  I would also request copies of

             22           minutes, if any, or any other documents

             23           relating to the copyright working groups'

             24           discussion of deCSS, DVDs, DMCA, or any

             25           other matter relevant to this lawsuit.


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2                  It is my belief that privileges that

              3           have been asserted here were all

              4           substantially waived by the conversations

              5           that took place at these meetings.  So, I

              6           would like to see any documentation you

              7           have concerning what was said at these

              8           meetings, to the extent that the MPAA is a

              9           member of those meetings.

             10                  I would like to know each and every

             11           person who attended from October 1st on.  I

             12           would like to see any records that the MPAA

             13           has of any of those meetings, if there were

             14           any memoranda made by anyone, since I do

             15           believe the privilege was waived.  I will

             16           get back to that further, at another time.

             17                  MR. GARBUS:

             18   RL      Q.     Now, at this meeting at your offices

             19   with the Matsushita people, Weil Gotshal and

             20   yourselves, tell me what was said.

             21   DI             MR. COOPER:  I am going to take

             22           under advisement whether the witness is

             23           entitled to testify about the substance of

             24           that meeting.  My understanding is that the

             25           sole subject of the meeting may have been


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           matters as to which the parties are

              3           entitled to a joint privilege and for that

              4           reason, at least at this point in time, I

              5           need to take under advisement whether that

              6           privilege is going to be asserted.

              7   BY MR. GARBUS:

              8           Q.     Did Matsushita have any of their own

              9   lawyers there?  Do you know?

             10           A.     My recollection is several of the

             11   attendees were lawyers, yes.

             12           Q.     So Matsushita had its lawyers?

             13           A.     Yes.

             14           Q.     Do you know whether or not a joint

             15   document was signed --

             16                  MR. GARBUS:  Off the record.

             17                  (Recess taken.)

             18   BY MR. GARBUS:

             19           Q.     Do you know whether a joint document

             20   was signed by the lawyers concerning the

             21   confidentiality of that meeting or a joint defense

             22   agreement, or any other document which was intended

             23   to insulate the meeting and keep it within the

             24   attorney-client privilege?

             25                  MR. COOPER:  And that meeting is


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              1                         Jacobsen

              2           the meeting between representatives of

              3           the MPAA, Matsushita, Weil Gotshal, and

              4           others that he has described in his

              5           testimony?

              6                  MR. GARBUS:  Yes.

              7                  MR. COOPER:  A joint document.

              8           Are you aware of such a document?

              9           A.     I am not aware of any such document.

             10                  MR. GARBUS:  Please mark Exhibit

             11           14.  This is the attendance list at the

             12           February 2000 Copy Protection Technical

             13           Working Group meeting, as I understand

             14           it.

             15                  (Defendants' Exhibit 14, attendance

             16           list at the February 2000 Copy Protection

             17           Technical Working Group meeting, marked for

             18           identification, as of this date.)

             19   BY MR. GARBUS:

             20           Q.     I show it to you and I ask you

             21   whether or not it refreshes your recollection as to

             22   the names of any of the Matsushita people who were

             23   present at the meeting that you had in December at

             24   your offices.

             25                  MR. COOPER:  First of all, let the


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           witness have an opportunity to look at

              3           this two-and-a-half-page document that

              4           has been marked Exhibit 14 and secondly,

              5           I don't recall the witness testifying to

              6           the meeting being in December.  I thought

              7           I remembered him not -- the meeting you

              8           were referring to, the oral face-to-face

              9           meeting to which the witness has

             10           testified.

             11                  I believe he was unable to fix

             12           it in time and I believe your question

             13           fixed it in time in December.  I may be

             14           in error, but that's my best

             15           recollection.

             16   BY MR. GARBUS:

             17           Q.     My understanding is that you said it

             18   was in December.

             19           A.     I said I didn't remember.

             20           Q.     But it was sometime prior to

             21   January 1st and sometime after deCSS was first

             22   released.  So, it would be November or December or

             23   maybe the end of October?

             24           A.     That would probably be correct.

             25                  MR. COOPER:  He has drawn your


                              INTERIM COURT REPORTING

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              1                         Jacobsen

              2           attention to, on this Exhibit 14, the

              3           names of a number of people who are

              4           listed as representatives of Matsushita

              5           Electric and he is asking whether seeing

              6           that name on this list refreshes your

              7           recollection as to whether they were

              8           among the people who attended the meeting

              9           that you testified to.

             10                  THE WITNESS:  It does not.  None

             11           of the names refresh my recollection.

             12           Q.     Now let me address your attention to

             13   the alleged lawyer from Weil Gotshal & Manges -- he

             14   is not an alleged lawyer.  He was a lawyer who was

             15   allegedly at the meeting.

             16                   -- and see if that refreshes your

             17   recollection as to whether he was the lawyer at

             18   your meeting.  I am having trouble finding it.

             19   Withdraw the question.  I am not finding it.

             20                  Do you know John Baumgarten from

             21   Proskauer Rose?

             22           A.     I know -- I have never met

             23   Mr. Baumgarten, but I do know generally that he

             24   works for Proskauer Rose as a lawyer.

             25           Q.     And you know he made a court


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              1                         Jacobsen

              2   appearance in this case?

              3           A.     I don't know.  He made a court

              4   appearance.  I know that he has been part of the

              5   defense team in this case.

              6                  MR. COOPER:  Prosecution.

              7                  THE WITNESS:  I'm sorry.

              8           Prosecution.

              9                  MR. GARBUS:  Off the record.

             10                  (Discussion off the record.)

             11   BY MR. GARBUS:

             12           Q.     Do you know whether or not at the

             13   meeting where you identify the people as coming

             14   from Matsushita, any of them came from Toshiba, as

             15   well?

             16                  MR. COOPER:  You are asking

             17           whether any of the people that the

             18           witness understood were from Matsushita

             19           also represented Toshiba at the same

             20           meeting?

             21                  MR. GARBUS:  Yes.

             22           A.     To my knowledge, they were all from

             23   Matsushita.

             24           Q.     You do know that Toshiba is also one

             25   of the companies that was involved in the creation


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              1                         Jacobsen

              2   of CSS; is that right?

              3           A.     I did not know that.

              4           Q.     Do you know that they are one of the

              5   companies that helped form DVD CCA?

              6           A.     Do not know that.

              7                  MR. COOPER:  You have already

              8           asked those precise questions.  I think

              9           he already testified that he doesn't know

             10           and he is not designated to testify to

             11           those issues.

             12           Q.     Do you, at any time -- when I say

             13   "you," I mean Motion Picture Association -- speak

             14   to any representatives of Toshiba, Matsushita, or

             15   any of the companies that helped form DVD CCA after

             16   January 1st?

             17                  MR. COOPER:  That is also outside

             18           of the purview of his testimony.

             19           A.     Can I answer?

             20                  MR. COOPER:  To your knowledge.

             21           A.     Not as far as I know.

             22           Q.     Do you have any records which would

             23                     Confidential

             24   speak to any Toshiba, Matsushita people?

             25                  MR. COOPER:  To the extent that it


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              1                         Jacobsen

              2           relates to --

              3                  MR. GARBUS:  -- deCSS, DVD, DMCA.

              4                  MR. COOPER:  The only meaningful

              5           response you are going to get from this

              6           witness on that topic would be within the

              7           areas for which he is designated, which

              8           would include piracy and efforts to stop

              9           the proliferation of deCSS.

             10                  My guess is you will find from

             11           other witnesses being provided on other

             12           topics that you may get a different

             13           answer.

             14                  MR. GARBUS:  Thank you.

             15           Q.     Do you know what a Windows Ripper

             16   is?

             17           A.     No.

             18           Q.     Do you know what a Power Ripper is?

             19           A.     I don't.

             20           Q.     Do you know what DAT tapes are?

             21           A.     Generally.

             22           Q.     What are they?

             23           A.     It's a digital audio tape, I

             24   believe.

             25           Q.     Do you know what the term "anonymous


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              1                         Jacobsen

              2   source" means?

              3                  MR. COOPER:  In the abstract?

              4                  MR. GARBUS:  No.  With reference

              5           to the deCSS program.

              6           A.     I have never heard the term.

              7                  MR. GARBUS:  Let's take a break

              8           and we will start tomorrow promptly at

              9           9:30 a.m.

             10                  (Time noted:  4:10 p.m.)

             11

             12

             13                  ______________________________________

             14                          KENNETH A. JACOBSEN

             15

             16

             17           Subscribed and sworn to before me

             18           this____ day of___________, 2000.

             19

             20           __________________________________

             21           NOTARY PUBLIC

             22

             23

             24

             25


                              INTERIM COURT REPORTING

                                                                 204

              1                             

              2                  C E R T I F I C A T E

              3   STATE OF NEW YORK )

              4                       ) ss.:

              5   COUNTY OF RICHMOND)

              6                 I, ELIZABETH SANTAMARIA, a Shorthand

              7           Reporter and Notary Public within and for

              8           the State of New York, do hereby certify:

              9                 That KENNETH A. JACOBSEN, the witness

             10           whose deposition is hereinbefore set forth,

             11           was duly sworn by me, and that such

             12           deposition is a true record of the

             13           testimony given by such witness.

             14                 I further certify that I am not

             15           related to any of the parties to this

             16           action by blood or marriage; and that I am

             17           in no way interested in the outcome of this

             18           matter.

             19                 IN WITNESS WHEREOF, I have hereunto

             20           set my hand this 18th day of May, 2000.

             21

             22                            _____________________________

             23                                 ELIZABETH SANTAMARIA

             24

             25


                              INTERIM COURT REPORTING

                                                                 205

              1                             

              2   ------------------ I N D E X ------------------

              3   WITNESS              EXAMINATION BY       PAGE

              4   KENNETH A. JACOBSEN     MR. GARBUS         4

              5

              6   ----------- INFORMATION REQUESTS --------------

              7   DIRECTIONS:  24, 71, 75, 79, 119, 122, 182, 184,

              8               188, 195

              9   RULINGS: 71, 75, 78, 79, 121, 195

             10   REQUESTS:  11, 13, 35, 57, 62, 68, 107, 126, 129,

             11             145, 146, 154, 156, 157, 160, 163, 187,

             12             189, 194

             13   ------------------- EXHIBITS -----------------------

             14   DEFENDANTS'                                 FOR I.D.

             15   Defendants' Exhibit 10, Declaration

             16   of Robin Gross.................................  5

             17   Defendants' Exhibit 11, three-page letter,

             18   dated May 15, 2000............................. 35

             19   Defendants' Exhibit 12, four-page document titled

             20   "1st Story of Level 1 printed in Full Format,

             21   Copyright 2000 Toronto Star Newspapers, Ltd.

             22   The Toronto Star".............................. 49

             23   Defendants' Exhibit 13, three-page document

             24   dated 2/8/00................................... 72

             25


                              INTERIM COURT REPORTING

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              1                             

              2   --------------- I N D E X  (C O N T'D) --------------

              3   ------------------- EXHIBITS -----------------------

              4   DEFENDANT'S                                  FOR I.D.

              5   Defendants' Exhibit 14, attendance list at the

              6   February 2000 copy protection technical working

              7   group meeting................................... 197

              8

              9                         --o0o--

             10

             11

             12

             13

             14

             15

             16

             17

             18

             19

             20

             21

             22

             23

             24

             25


                              INTERIM COURT REPORTING