page 3

(bonobo - terrapin)
Oh, fill all the holes in me,
all the places where I am not myself
and all the thoughts that I could never think.

Rain on my cracked lips,
and grass under my fingertips.

Stars and sun, push the sky around,
and take me away to where my heart lives.

There,
Let me meet my love,
and grant me a little dream.

A small, shining light,
Small enough to hold,
and big enough to share.

Let me calm you,
and tell you stories.

Let me speak quietly,
on a warm, sunny day.

--

There's a song that once sounded old and dead to me, that I liked the sound of but not the lyrics.
But now I realize that it was just me, that at the time I didn't have a love strong enough to hold it in my head.

--

C_____: i just bought a civic :P
me: tell you what, man, I am stoked to head out.
wtf
that doesn't tow shit
3:14 PM C_____: nope
but it has AC and it was a good price
oh and it doesnt break down
me: wtf you need ac for
C_____: for a_______
me: wtf you need a car that doesn't break down for
C_____: because i dont want to spend money fixing a broken truck
3:15 PM me: so why not get a truck that doesn't break down
C_____: there arent any for sale
3:16 PM me: weak
not even like, could ride a long ass way to buy one, put your bike in it, and ride back?
did you check socal?
C_____: no
and hell no
i dont wana do that
me: pansy. You know I'd come along.
C_____: doesnt make me wana do it though
3:17 PM me: my winning charm and constant entertainment value doesn't tip the scale?
C_____: naw sorry
me: so what exactly are you going to do with this car except not ride your bike
3:18 PM C_____ : pick shit up
go for rides with people to pussy to go on the bike
but for the most part
its going to sit there :D
and do nothing
me: I'm so confused


Democrats join chorus against missile shield
By Thom Shanker
Wednesday, May 9, 2007

WASHINGTON: The Bush administration's proposal to construct two missile-defense bases in Europe has roiled relations with Russia and provoked sharp questioning in NATO capitals, where critics ask: With the system still unproved and, under the best of circumstances, years from completion, why rush construction now?

Now the Democratic majority in Congress is moving toward budget cuts aimed at slowing the administration's plans to break ground this year on a missile interceptor base in Poland.

Representative Ellen Tauscher, Democrat of California and a key member of the House Armed Services committee, said the panel would approve "only prudent investments" in what she labeled "high-risk, immature programs" to shoot down long-range missiles, such as the new system advocated for Europe.

The administration wants to begin digging silos for 10 interceptors in Poland and laying the foundation for a tracking radar in the Czech Republic this year to defend Europe against what the Pentagon calls a looming long-range ballistic missile threat from Iran. But in a vote scheduled for Wednesday in Washington, the House committee was expected to approve only a study of the "political, technical, operational, force structure and budgetary aspects" of those missile sites.

The committee bill would cut $160 million from funds proposed for construction in Poland, as part of $764 million in cuts from the $8.9 billion the administration has sought for the Pentagon's Missile Defense Agency.

A cut of $160 million would prevent breaking ground on the interceptor silos in Poland, while leaving funds in the proposed 2008 budget to move forward with buying the interceptor missiles and the radar for the Czech Republic, congressional officials said.

The measure faces a vote by the full House, while similar discussions are under way in the Senate, where the new Democratic majority is also skeptical of the program.

Administration officials said the proposals for two antimissile bases in former Soviet satellites of Central Europe are a prudent, modest but important step toward establishing a system of high-technology global sentries capable of shooting down warheads fired by an adversary with a limited arsenal of ballistic missiles.

But in a critical assessment of the program issued in March, the Government Accountability Office noted that the ground-based interceptor system had successfully completed only one full test, in September 2006.

While the test "provided some assurance that the element will work as intended," the report said, it also said that the program "cannot yet be fully assessed because there have been too few flight tests conducted to anchor the models and simulations that predict overall system performance."

In an interview, Lieutenant General Henry Obering, director of the Missile Defense Agency, took issue with the report, saying, "I do believe we are on the right path."

The U.S. military is moving at full speed to prove the system is capable of destroying a long-range enemy warhead in an environment that officers in charge of the program said mirrors a real-world threat. They said the next test was scheduled for the end of this month along the West coast.

Even so, the administration says the United States must begin pouring concrete soon to have the European system operating by 2012 - in time to counter an Iranian long-range missile capability that U.S. intelligence warns will be reached between 2010 and 2015.

Pentagon officials have said that the European system could incorporate improvements in technology between now and the completion date.

Administration officials concede that they have not been nimble in their public-relations efforts to sell the program in the face of Russian opposition and European skepticism.

Last month, the administration opened an intensive campaign in which the secretaries of state and defense, with a team of other senior officials and U.S. generals, canvassed European capitals, including Moscow, to explain the limited nature of the system under consideration.

Russia has little to fear from the bases being proposed for the former Soviet satellites, American officials contend, because the limited missile-defense architecture under consideration - 10 interceptors - is not even a tiny shadow of the Reagan era "Star Wars" program that envisioned an impenetrable missile shield. More than $50 billion was spent researching space-based missile defenses from 1983 to the early 1990s before that goal was abandoned.

Kremlin leaders publicly rejected a peace offering of U.S.-Russia cooperation on missile defense carried to Moscow by Defense Secretary Robert Gates, but Moscow has agreed to set up a U.S.-Russian commission of experts to examine the fine print of the plan.

The Russians have also demanded a high-level meeting to debate details of proposed American missile defenses in Europe, one that will probably lead to a meeting in September between Gates, Secretary of State Condoleezza Rice and their Russian counterparts, a senior State Department official said.

Daniel Fried, assistant secretary of state for European and Eurasian affairs, said the system in Europe was intended to help protect American forces serving in NATO nations, and to help guarantee the security of those European allies at a time when the United States is moving ahead with its own system of missiles and radars to guard American territory.

"The fact is alliance security should be indivisible," Fried said. "And if Europe is vulnerable to Iranian missiles, that means we're insecure as well."

As discussions with the Russians accelerate, administration and military officials are expected to stress that the location, size and design of the missile sites in Central Europe clearly illustrate that the system poses no threat to Moscow's arsenal of hundreds of missiles and thousands of warheads.

Obering said the sites in Central Europe were not optimally positioned to intercept Russia's strategic nuclear missiles, as they would fly over the pole if fired at the United States, not over Europe.

But that does not satisfy skeptics.

Wade Boese, research director for the Arms Control Association, a research and advocacy group here, said: "It doesn't matter that the deployment poses no plausible physical threat to Russia's deterrent because Moscow fears it might serve as a toehold that could be
expanded and upgraded in the future."
--
seafoam: so she said "oh recursive destiny, banality of fate and will, you tuant with visions of deja vu and premonitions, oh by the gods fates release me."

seafoam: so I was like "the continuoum of time is perpetuated by the momentum of will unattached unseeking awake to the still eternal present concious moment"

maladroit: Seafoam is getting worse and worse.

Don't look at -me-. I don't say things like that. I think.

--

start: gaelle - falling
hajime yoshizawa - endless bow (jimpster remix)

basti & vincenz - love yourself
fusion groove - the dream (deep dreamer dub)
louis benedetti - show your love (dub)
jay denes - it's love (king kooba's conscious mix)


derrick white - soul 2 let go (curious deep groove)

miguel migs - you bring me up (dub)
miguel migs - spiritual (distant)
kerri chandler - atmospheric beats (original extended version)
satin souls - aziza (silky club vocal)


lisa shaw - ultimate high
mindflight - release

end: blue six - pure

This is a body that wants to dance,
but this is a brain that wants to feel particular about dancing.


1 THE COURT: Okay. Let's proceed.


2 DAVID TOURETZKY,
3 called as a witness by the Defendant,
4 having been duly sworn, testified as follows:
5 THE COURT: Proceed, Mr. Atlas.

6 DIRECT EXAMINATION


7 BY MR. ATLAS:
8 Q. Good morning, Doctor. Can you tell us by whom you are
9 presently employed?
10 A. Carnegie Mellon University in Pittsburgh, Pennsylvania.

11 Q. And what do you do at Carnegie Mellon?


12 A. I do research and teaching computer science.
13 Q. Do you teach in any specialized area within the field of
14 computer science?
15 A. Artificial intelligence and computational neuroscience.



16 Q. Can you just describe briefly those areas in a little bit
17 greater detail?
18 A. Artificial intelligence is concerned with getting
19 computers to do things that normally require human-like



20 intelligence or animal-like sense. Computational neuroscience
21 is the use of computers to understand how brains work.
22 Q. And how long have you taught computer science at Carnegie

23 Mellon?


24 A. I've been on the faculty since 1984.
25 Q. Can you tell us what degrees you have and from which
1062
1 schools you obtained them?



2 A. I have a bachelors degree in computer science from Rutgers
3 University, and I have a masters and Ph.D. degree in computer
4 science from Carnegie Mellon.
5 Q. Do you serve on any boards?



6 A. I serve on several editorial boards: The Editorial Board
7 of Cognitive Science. It's a journal. The Editorial Board of
8 Neuro-Computation. I'm also on the board of directors of



9 NIPS. NIPS stands for neural information processing systems.
10 It's a foundation that manages an annual conference for
11 researchers in the field of neuro-networks.
12 Q. Have you published any books?



13 A. Yes. I've published three books.
14 Q. Have you published any articles?
15 A. Approximately two dozen journal articles and about 60
16 conference papers.
17 MR. ATLAS: May I approach, your Honor?



18 THE COURT: Yes.
19 Q. I'd like to show the witness what we've marked as
20 Defendants' Exhibit CCM, and if you could tell us what that
21 is.
22 A. This is a copy of my curriculum vitae as of,



23 approximately, April of this year.
24 Q. Are there any changes to your CV that are not reflected on
25 the April version?
1063



1 A. There are a few changes, a few articles that were listed
2 and perhaps now have page numbers. And I've added two items
3 to the CV that are relevant to this case. I now cite my
4 Gallery of CSS Descramblers as a publication and also a page



5 on the CSS descrambling algorithms. That's now included in my
6 vitae as a publication.
7 MR. ATLAS: If I may approach again. I'd like to
8 move Dr. Touretzky's CV into evidence.



9 THE COURT: Any objection, Mr. Mervis?
10 MR. MERVIS: Plaintiffs have no objection, your
11 Honor.
12 MR. ATLAS: If I may approach again, your Honor.

13 THE COURT: Go ahead.


14 BY MR. ATLAS:
15 Q. Dr. Touretzky, did you prepare a declaration in this case?
16 A. Yes, I did.
17 Q. I'd like to show the witness what we've marked as

18 Defendants' Exhibit BBC and ask the witness if that's the


19 declaration that you prepared and signed in this case?
20 A. Yes, it is.
21 MR. ATLAS: I'd like to move Dr. Touretzky's

22 declaration into evidence as well, your Honor.


23 MR. MERVIS: Your Honor, I suppose to the extent that
24 this won't help illustrate his testimony, I have an objection,
25 which is -- and it may be premature -- which is that the
1064



1 testimony is going to be cumulative from what you heard from
2 Dr. Felton.
3 Notwithstanding that, your Honor, I do have an
4 objection in specific to paragraph 7 of this declaration. The



5 grounds for that objection are as follows: Relevance,
6 hearsay, best evidence, and that, in fact, it does not involve
7 any expertise whatsoever.
8 THE COURT: What do you say, Mr. Atlas?



9 MR. ATLAS: I think Dr. Touretzky will be testifying
10 as an expert. I think he can opine on the matters he has in
11 paragraph 7, but I have no objection if the Court takes it for


12 everything other than paragraph 7. I think it will help for

13 the Court.
14 THE COURT: Dr. Touretzky, I take it that you're
15 telling us that the statements made in this document are true.


16 THE WITNESS: Yes.
17 THE COURT: Correct?

18 THE WITNESS: Correct.
19 THE COURT: All right. I will receive paragraphs 1
20 through 6 simply as a way of shortcutting his direct testimony


21 in open court. I do note that to the extent he expresses

22 opinions on legal subjects, I'm not going to consider those
23 opinions as evidence. Obviously some of these things are

24 matters for me to decide.

25 The one that caught my eye particularly is the

1065
1 assertion at the beginning of paragraph 3 that "source code is


2 expressive speech meriting the full protection of the First

3 Amendment." That is ultimately for me to decide.
4 This witness is not here as a law professor, but,
5 obviously, he may have things that are relevant to my
6 determination of that question to say.



7 MR. ATLAS: That's what I would like to focus this
8 witness' testimony on today, especially his gallery of CSS
9 descramblers which he's testified about.
10 BY MR. ATLAS:



11 Q. Dr. Touretzky, do you have a website?
12 A. Yes, I do.
13 Q. Is the Gallery of CSS Descramblers that you testified a
14 moment ago posted on this website?
15 A. Yes. I have an extensive website about DeCSS, and one



16 portion of that website is the Gallery of CSS Descramblers.
17 THE COURT: I should note, Mr. Atlas, that
18 Defendants' Exhibit BBC does include internal references to
19 attached exhibits, which are not attached, one of which is a



20 printout of the gallery.
21 MR. ATLAS: I've broken them down separately, and I'm
22 going to take them as individual exhibits.
23 THE COURT: All right.

24 MR. ATLAS: If I could approach the witness.


25 THE COURT: All right.
1066
1 MR. ATLAS: It's Exhibit CCN.

2 THE COURT: CC.
3 MR. ATLAS: N.


4 THE COURT: N.
5 MR. ATLAS: Just so we're clear, I'd like to show the
6 witness -- the witness provided me this morning with a copy

7 that has various colors on it. He said it would be easier as


8 he goes through and describes what the gallery is if he can
9 refer to this one. The copies I have are black and white. Is

10 there an objection to my showing him the colored version?
11 MR. MERVIS: No.


12 BY MR. ATLAS:
13 Q. Dr. Touretzky, can you tell us what Defendants' Exhibit
14 CCN is?

15 A. This is a printout of the main page of my Gallery of CSS
16 Descramblers.
17 Q. Now, what is the Gallery of CSS Descramblers?


18 A. The gallery is a presentation of the CSS decryption of

19 algorithms in various forms in an attempt to show that these
20 forms are equivalent and that it's not possible to
21 discriminate between them.


22 Q. Why did you create the gallery?

23 A. Well, in reading reports of this case, it seemed to me
24 that the public discussion of some of these issues having to
25 do with legal status of computer code as speech could benefit



1067
1 from pointing out some of the things I try to point out in the
2 gallery. And since no one else seemed to be discussing it, I



3 thought I would create this website.
4 Q. If we could referring to Defendants' Exhibit CCN, which is
5 your gallery. If you could take us through, I guess,
6 beginning with the reference here to the anonymous C source



7 code, and just explain what it is you were trying to do.
8 A. Sure. So, the two points that the gallery tries to make
9 are, first of all, that source code has expressive content,
10 and, secondly, that you can't distinguish between different



11 forms of description of an algorithm, whether they're in
12 computer language like C or English or some other notation.
13 So the first two items in the gallery -- the first

14 item is the anonymous C source code, which is the source code


15 that was posted to the LiViD mailing list in October of 1999.
16 This is one of the items that is covered, I believe, by the

17 injunction issued by this Court.
18 The second item is another version of the same


19 algorithm. This.item is called CSS descramble.c, and this
20 comes from the CSS-auth software package that was authored by

21 Derek Fawcus. And the point of providing these two versions
22 is to show that it is possible to have different


23 implementation of an algorithm, and by looking at these
24 different implementations, one can gain knowledge that one

25 couldn't get from looking at other decryptions of the
1068


1 algorithms.
2 So, for example, if you compare CSS
descramble.com
3 against the anonymous C source code, one of the things you see

4 is that Mr. Fawcus used fewer tables in his implementation,


5 and he unrolls one of the loops.
6 So, what he's telling us is, hey, there's more than
7 one way to implement this algorithm. You don't need to use so

8 many tables. You can use fewer tables. You don't have to do


9 this operation in a loop. Maybe it's more efficient to unroll
10 the loop and have the individual operations stated as separate

11 lines of code, and that's a message that Mr. Fawcus is


12 expressing in his chosen implementation of the algorithm.
13 You can't get that message, except by looking at the
14 source code and reading the source code. So that's the only
15 thing that can be expressed in the source code.



16 Q. By the way, if you could turn the page to page 2 of the
17 gallery. And can you explain to us what the first item on
18 page 2 is?
19 A. Yes. I should say that the next section of the gallery,



20 the items on page 2, they all have to do with the issue of
21 different forms the code can take and the fact that this Court
22 has enjoined some forms and not others, and I was puzzled by


23 that. It struck me as unusual that the Court would decide

24 that it was okay to ban, say, the C source code, but the Court
25 declined to ban discussion of the algorithm.
1069


1 Q. Why?

2 A. Because in my mind, these things are all equivalent, and
3 so I was wondering what your Honor was thinking when he
4 decided that this would be an effective remedy and why the
5 MPA's lawyers thought they won something when they got this



6 injunction because to my mind this didn't -- I couldn't make
7 sense of it.
8 So in an attempt to explore what the reasoning of the
9 Court and the plaintiffs' lawyers might have been, I decided



10 to investigate different forms that the code could take and
11 look at the implications of that.
12 So I began with the first two exhibits, which we've
13 already discussed, which are the actual C source code, but the



14 LiViD version and the CSS-auth version, which I believe have
15 been enjoined.
16 Now, it seemed to me that it could be that The
17 Court's reasoning was that these are files that could be fed



18 to a C compiler, whereas an English description, which the
19 Court declined to enjoin, could not be fed to a C compiler.
20 So if that was the Court's reasoning, what I've shown in this



21 exhibit on the top of page 2 is a screen dump of the CSS
22 descrambling code. So this is the CSS code written as a
23 binary image file. So in this form, the code cannot be feed
24 to a C compiler, and, perhaps, therefore, it would fall into



25 the category of protective speech.
1070
1 But if that was the case, the problem here is that
2 any human could look at this image and just type the



3 characters that they see into a text editor, and then they
4 would have the C source code again. Furthermore, there are
5 today, there are OCR programs. OCR stands for optical
6 character recognition, which can take a binary image file like



7 this and turn it automatically into text form.
8 So it's not clear to me then if these binary images,
9 if these pictures of the source code -- that's what they are,

10 pictures -- if the pictures themselves are really illegal


11 circumvention devices under the DMCA, but since they can't be
12 feed to a C compiler directly, maybe they're protected speech.

13 Q. Did you reach any conclusion in terms of your examination


14 of this particular description of the code?
15 A. Well, my conclusion is that if these images are protected
16 speech, then really the Court has provided the plaintiffs no

17 protection at all because it was trivial to turn these back


18 into text files. So, since the plaintiffs seem to think that
19 they won something with this injunction, it must be that these

20 images are not protected speech. They must be circumvention

21 devices.

22 Q. Why is that?
23 A. Well, because they're trivially convertible into
24 circumvention devices by looking at the picture and typing the
25 words.
1071



1 Q. Moving down to the second item.
2 THE COURT: So, is the net of your view that if the
3 preliminary injunction decision was in substance correct, as a
4 matter of law, the problem is that the injunction is far too



5 narrow? Is that one way of putting your conclusion?
6 THE WITNESS: Yes; I think that's correct.
7 THE COURT: Okay. I thought that's where you were
8 going.



9 BY MR. ATLAS:
10 Q. The second item on page 2.
11 A. The second item is a file called new-language.txt, and I
12 believe that you have a printout of that that you can
13 introduce as a separate exhibit.



14 Q. Actually before I get to that, I'd like to explore
15 something the judge had just asked you if you don't mind.
16 Why, in your view, would it be too narrow, the injunction, as


17 it currently stands?

18 A. Well, I think what the Court was trying to do in the
19 injunction is prevent people from obtaining technology that
20 could be used to decrypt DVDs without the authority and


21 permission of the motion picture industry, and simply

22 restricting a particular form of the C source code will not be
23 an effective way of preventing that.
24 And so if you're going to be effective about it, if


25 you're really going to stop people from doing it, you've got

1072
1 to stop them from hearing the message that the defendants were


2 trying to convey. You've got to stop them from any
3 description of the algorithm, which could be used to construct

4 one of these devices.
5 Q. Would that say that could include an oral conversation


6 that one would have in sufficient detail in discussing the
7 DeCSS program?
8 A. Yes, it would. I could certainly sit down with someone

9 who had the appropriate degree of knowledge of C programming


10 and of encryption technology, and with an oral conversation --
11 assuming that person had a good memory -- they could acquire
12 the knowledge necessary to reconstruct this program, yes.


13 Q. Let's draw your attention to back to page 2, which you

14 said I might have a copy of that. One moment.
15 MR. ATLAS: If I may approach, your Honor. This is
16 Exhibit CCQ, Defendants' Exhibit CCQ.


17 BY MR. ATLAS:
18 Q. What is that document, Dr. Touretzky?

19 A. This is a printout of the second exhibit on page 2 of the
20 gallery, which is called new-language.txt. And what I did


21 with this exhibit, I tried to further explore this issue of
22 the legal status of computer code. So if these pictures of
23 the code in the previous gallery exhibit, if the Court had a
24 problem with distributing those pictures of the C code, maybe



25 that wasn't -- maybe that wasn't protected speech.
1073
1 If they have a problem with that, maybe the problem

2 is that these are pictures of code expressed in a language for


3 which there is a compiler. There are C compilers available
4 for free, and so if you had a picture of the code, you could

5 type the code in, just literally typing what you see on the
6 screen, and then you can run it through the C compiler.


7 So if that was the problem, then maybe it would be
8 okay to describe the algorithm in another computer language

9 that had all the precision of C, but for which there did not
10 exist a compiler. So what I did is I created a computer


11 language, which has the same semantics as a C programming
12 language, but perhaps has a different syntax, and I

13 recompressed the DeCSS algorithm in this new language.
14 Now, there is no compiler for this language, and so


15 it could be that the Court would find that since you can't

16 feed this to a compiler, because there isn't a compiler, then
17 this form of the algorithm might be protected speech, might be


18 okay. But I have to say I'm pretty worried about this because

19 with this version of the code out on the web, I have no way of
20 preventing another person from writing a compiler for my


21 language.
22 And having done that, they will then make me in the
23 position of having provided code that's now compilable even
24 though I didn't create the compiler, and, in fact, there was



25 no compiler when the code was originally written. So I think
1074
1 this raises problems, too, that expressing the code in a

2 language that is as precise as C, but for which there is no


3 compiler, really you can't give that the same protected status
4 as other kinds of speech. You have to view it as a device

5 because it could become compilable at any time.
6 Q. Moving down to the next item on your gallery. I think I


7 have a copy of that.
8 MR. ATLAS: It's Exhibit CCO.

9 Q. Is this the next step in your analysis, Dr. Touretzky?
10 A. Yes. This is a copy of the file plain-english.html
.

11 Q. What was the purpose of doing that?
12 THE COURT: I'm delighted, Doctor, that this is plain
13 English to someone.
14 THE WITNESS: I did my best.
15 THE COURT: I wasn't finding fault.



16 A. This is the third gallery item on page 2 of the gallery
17 printout. So what I tried to do here was, again, to further
18 explore this issue of the status of source code, and if it's


19 the case that the previous file, my
new-language.txt -- if
20 that was, perhaps, not deserving of First Amendment protection
21 because somebody could write a compiler for it -- and the
22 Court had already refused to enjoin mere discussion of the



23 algorithm -- I know that from reading the transcript of the
24 preliminary injunction hearing and from reading the memorandum
25 that the judge subsequently wrote -- it seemed to me that the


1075

1 next thing one could consider was translation of the algorithm
2 in English.
3 Now, there's two ways to do that. The most


4 mechanical way is to simply translate the C code directly into

5 English and make no other changes, and I decided not to bother
6 with that. I'll leave that as an exercise for an

7 undergraduate, but I thought a more interesting way to do it

8 would be to translate the C code into English, but, in

9 addition, include some explanatory text and some editorial
10 comments. And that's what I've done in this version.

11 So if you look at this version, the first couple of

12 paragraphs are introductory text, and then that's followed by

13 an image, which I borrowed from a website in Norway that

14 explains the big picture of how DVDs -- how movies on DVDs are

15 descrambled. And after that image, there's another paragraph
16 of text where I explain what the image conveys.

17 And following that, the remainder of this document is
18 my translation of the C code into plain English, and that


19 translation is done pretty much line by line, but it contains
20 certain informalities of language and minor editorial

21 comments, which are the kinds of things that a human could do,

22 but a computer program typically could not do.

23 Q. And did you reach any conclusions in preparing this
24 plain-english.html
version?
25 A. My conclusion is that this version is substantially

1076

1 equivalent to the original C source code that was the first

2 very exhibit in the gallery. That any person with a
3 rudimentary knowledge of C would be able to go from this
4 English description back to the C source code and reproduce
5 the C source code flawlessly.



6 So it seems to me that this document ought to be
7 enjoined for the same reason that all the others are, is that
8 it's providing exactly the same information. It's providing a



9 description of the algorithm with enough precision that
10 another person could reproduce the software.
11 Q. Moving down to the fourth item on page 2 of your gallery.
12 It's the

english-and-c.html
version.
13 MR. ATLAS: I have a copy of that as well. It's
14 Defendants' Exhibit CCP.
15 Q. I'm showing you what's been marked as Defendants' Exhibit


16 CCP. Could you tell us what that is?

17 A. Yes. This is a printout of the fourth exhibit on page 2
18 of the gallery. This is another version of that essay that we
19 just discussed.


20 Q. Why dis you create this version of the essay?

21 A. Well, I wanted to further explore the issue of plain
22 english descriptions being protected. Given that the Court
23 declined to enjoin discussion of the algorithm in plain


24 english, it could be that the previous exhibit,

25 plain-english.html, perhaps that was protected speech, and if
1077
1 it was protected speech, then what would happen if one simply


2 made a little more explicit the mapping between the English

3 description of the algorithm and the C code.
4 So for people who haven't yet acquired a rudimentary
5 knowledge of the C programming language, I thought I could


6 give them a little help in converting the English back to C.

7 And so what I've done is, beginning on page 2 of this
8 nine-page document, for each English paragraph that
9 corresponds to a line of C code, I have presented an inset


10 that gives the translation of that English into C.

11 And in the original document, that inset is done in a
12 light blue background to make it visually distinct, and it's

13 also indented. The indentation surveyed the copying process


14 here, but the blue background did not.
15 So in going through this, you see for each line of
16 the algorithm described in English, there is the corresponding
17 expression of that algorithm in C code. All I'm doing is



18 translating my English into statements in the C language. So
19 an interesting thing about this document is that it contains
20 within it the source code for the CSS descrambling program,


21 which the Court has enjoined.

22 But you cannot feed this file to a C compiler because
23 that C source code is interspersed with both English and with
24 HTML formatting commands, which provides the blue background


25 and information and so on. So you can't compile this thing,

1078
1 but you can read it, even if you're not a very good C


2 programmer. But what you learn from reading this document
3 would allow you to recreate with perfect accuracy the original

4 descrambling algorithm.
5 Q. When did you put up the gallery? When did you post the


6 gallery?
7 A. In March of this year.
8 Q. Did anyone involved in this case suggest or encourage you

9 to create this gallery that you've been testifying about?
10 A. The creation of the gallery was my own idea. I did


11 discuss it with my graduate students, who thought it was a
12 pretty good idea and that I should go ahead with it.

13 Q. Why did you create and post it?
14 A. I wanted to spare public discussion of these issues. This


15 case raises what for me are very serious concerns about the
16 future of computer science and my ability to function as a

17 computer scientist.
18 Q. Why?
19 A. Because what the plaintiffs are trying to do is carve a


20 hole in the First Amendment and say, this kind of speech you
21 can engage in and that kind of speech you can't. And as a

22 computer scientist, this is my livelihood. I've been

23 programming computers since I was 12 years old, and I'm very

24 concerned when events take place that threaten my ability to
25 express myself.

1079

1 THE COURT: Mr. Mervis.
2 MR. MERVIS: I move to strike that portion of the

3 answer which Dr. Touretzky purports to describe what the

4 plaintiffs are trying to do in this case and to the extent he

5 is, also, offering opinion about legal matters.
6 MR. ATLAS: I think it's the witness' perception of

7 how the plaintiffs' position in this case impacts what it is


8 that he does and how he communicates with his peers and his
9 students, and I think it's acceptable testimony.
10 THE COURT: To the very limited extent of the motion,

11 it's granted. I'm not taking Dr. Touretzky's view of the


12 First Amendment as evidence. His testimony presupposes a view
13 of the scope of the First Amendment on which he is not an

14 expert, which is not a proper subject for testimony and which

15 is ultimately for me and appellate courts to decide.

16 There is no doubt that yelling "fire" in crowded

17 theatre is something that is problematic and probably impedes
18 expression by certain twisted individuals. I'm not drawing a

19 one-to-one analogy. You know how dangerous one-to-one
20 relationships are this morning, but you see the point.


21 MR. ATLAS: I think it explains why the witness is
22 here, but I may be --

23 THE COURT: I understand that. I understand why he's
24 here.
25 BY MR. ATLAS:


1080
1 Q. By the way, the different ways that you have approached

2 communicating the DeCSS source code or the DeCSS code, would


3 those be the types of communication you may -- strike that.
4 These different ways of approaching the DeCSS code,
5 are those ways that you communicate with the people in -- your

6 peers, the other professors, the other faculty members?


7 A. Yes. We mix these techniques freely, and even on the same
8 page of a paper, you might have descriptions in English. You
9 might have mathematical equations, bits of code in a

10 acceptable programming language, bits of code in a language I


11 just made up because it's particularly convenient for trying
12 to express what I'm trying to express. We use all of these

13 forms of expression all the time.
14 Q. Turning to the last page of your gallery, page 3 --


15 MR. ATLAS: Actually before we get to that, what I'd
16 like to do, your Honor, at this time is move into evidence the

17 gallery, which is Exhibit CCN and then the three different


18 types of entries on the gallery, which I think we've marked as
19 CCO, CCP and CCQ.
20 MR. MERVIS: No objection.

21 THE COURT: They're received.
22 (Defendants' Exhibits CCN, CCO, CCP, and CCQ
23 received in evidence)
24 BY MR. ATLAS:
25 Q. Turning on the top of page 3, the Cryptanalysis of CSS.



1081
1 Can you explain what the entry of this refers to?
2 A. Yes. This entry is actually a collection of writings by
3 Frank Stevenson, rather than a single document. And in those



4 writings, which I believe have been entered in this case
5 already -- in those writings, Mr. Stevenson talks about
6 various cryptographic attacks on pieces of the CSS encryption
7 scheme, and some of these documents are English text and some



8 of them are little bits of C code, which illustrate the point
9 he's trying to make.
10 The interesting thing about this exhibit in the
11 gallery is that this is not -- the software provided here



12 would not allow you to immediately decrypt the DVD. What's
13 here is software that illustrates the effectiveness of the
14 attacks that Mr. Stevenson developed. And, yet, again, to

15 provide the plaintiffs' effective protection, one would have


16 to somehow prevent the discussion of this material because in
17 the hands of a knowledgeable person, it could be used to

18 access the material on the DVD.
19 Q. The next item, the DeCSS T-shirt, why did you post this on


20 the website on the gallery?
21 A. Well, this is a photograph of a T-shirt that's offered for

22 sale by an outfit called CopyLeft, and I purchased one of
23 those shirts myself. And the point of including it here is it


24 seems to me that there is some confusion among all the parties

25 in this case about whether something is speech or not.
1082
1 And my reaction is if you can put it on a T-shirt,


2 it's speech. And so the point of showing the T-shirt was to

3 illustrate that and, also, to raise the question if this
4 T-shirt, itself, would have to be prohibited, then I wonder
5 what would happen to me if I wore the shirt in public.


6 Wearing the shirt in public could, perhaps, be interpreted as

7 engaging in trafficking a circumvention device.
8 So if one really wants to afford the plaintiffs the
9 protection that they seek, I think I would only be able to


10 wear my shirt in the privacy of my own home and must not go

11 outdoors with it.
12 Q. The final item on here, can you tell us what this refers
13 to?
14 A. Yes. This is an image file. It was constructed by Andrea


15 Gnesutta, who was the winner of a contest for the best way to

16 distribute the DVD source code. And what she did was she
17 created an image file that looks like a bumper sticker. It
18 says, DVD Source Code Distribution Contest. But inside this



19 image file is the source code. And although you can't see the
20 source code, when you display the image on your web browser,
21 the mere fact that this image appears on this screen -- if



22 you're looking at a website and this image comes up means that
23 the source code has been downloaded onto your computer.
24 And Ms. Gnesutta gives the technique necessary to
25 extract the source code from the binary image file. It's a



1083
1 couple of simple operations can pull out those bytes, and then
2 one can easily obtain the text file from that.
3 (Continued on next page)



4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1084



1 Q. So, summing up, looking at all the different items you
2 have on your gallery of CSS -- do you have a difference --
3 strike that.
4 Do you have an opinion on the differences, if any,



5 between them?
6 A. My opinion is that there's no effective difference between
7 any of these forms in that if you want to accomplish what the
8 Court set out to do in its preliminary injunction, you have to



9 enjoin all of these forms because if any one of them is
10 allowed, then it's a trivial matter to transform it into any
11 of the others. They're all interconvertible.
12 Q. Do you have any opinion on the effect within your field,



13 the computer science field, if the Court were to issue an
14 injunction first over the DeCSS executable resource code?
15 MR. COOPER: Objection, your Honor; relevance.
16 THE COURT: Overruled.



17 A. Well, yeah, I see this as having a chilling effect on my
18 ability as a computer scientist to express myself. In
19 comparison, I know I could publish the formula for LSD using
20 chemical notation and even though I'm not allowed to possess



21 LSD, no one would try to stop me from publishing the formula.
22 And I could publish the schematic for the timing
23 device for a bomb, and even though I'm not allowed to possess


24 a bomb, no one would try to stop me from publishing those

25 schematics.
1085
1 The language that -- in which I try to express myself


2 is the computer language and if the Court upholds this

3 injunction, what would happen is that certain uses of computer
4 language, my preferred means of expression would illegal.
5 They'd be enjoined. And that means that anything I do from


6 now on has the potential to be ruled illegal.

7 And furthermore, what I've tried to show with the
8 gallery, even if I just decided never to try another line of
9 computer code again, I wouldn't be any better off because


10 simply writing English, if I wrote it with the same precision

11 as I used in my plain English on an HTML file would accomplish
12 the same thing.
13 So, I could merely by using the kind of precision


14 that I've been trained to use as a computer scientist simply

15 by expressing myself that way, I could be opening myself up to
16 legal liability.
17 THE COURT: Dr. Touretzky, do people in your field of


18 endeavor sometimes make bits of hardware, computer hardware?

19 THE WITNESS: Yes, they do.
20 THE COURT: Are there circumstances in which it might
21 be helpful to a computer scientist to make a bit of hardware


22 as to which somebody else holds the patent?

23 THE WITNESS: Yes, I think so.
24 THE COURT: O.K. Mr. Atlas?
25 Q. Dr. Touretzky, would a declaration by the Court that the


1086

1 CSS descriptions are illegal have a similar chilling effect
2 compared to an injunction?
3 MR. COOPER: I have the same relevance objection,


4 your Honor.
5 THE COURT: Overruled.

6 A. Well, it would certainly. It would certainly make me
7 afraid to publish things like that; yes. Any indication by
8 the Court that this was illegal would concern me; yes.


9 Q. By the way, are you being compensated for your role as an

10 expert in this case?
11 A. No, I'm not.
12 Q. Why are you rendering services if you're not being
13 compensated here?


14 A. I think the issues being decided here have tremendous

15 importance for the field of computer science and it's actually
16 I consider it a privilege to be allowed to come here and

17 express my views and hope to influence the outcome.

18 Q. One other thing, Doctor. I believe in your deposition an

19 article that you had prepared was marked -- or actually I
20 believe it's Exhibit 2 at your deposition, we've marked it as


21 Exhibit BBE, it's an article entitled "Source Versus Object

22 Code."
23 MR. ATLAS: May I approach, your Honor?
24 THE COURT: Yes.
25 Q. Dr. Touretzky, if I may, why did you write this article?


1087

1 A. I wrote this article because after reading various
2 depositions in this case, it occurred to me that the both
3 sides were grappling with the issue of source versus object


4 code. And I could see that several of the other defense

5 witnesses had tried in depositions to explain that source and
6 object code are really the same thing, that there isn't any


7 rational way to distinguish one from the other, but I'm not

8 sure that the lawyers were getting it.
9 And I think it's kind of hard to do that in
10 deposition. So, by constructing this essay, including the
11 illustrative appendices at the end, I hoped to assist both



12 sides in understanding this.
13 Q. That's actually what I'd like to refer your attention to
14 appendices beginning on page 4 of 6 of your article. Appendix
15 A, Appendix C, and D. I was wondering if you could explain



16 the relationship between these appendices?
17 A. Yes, these appendices are four different forms of the same
18 program. I'd like to go through them in order and then back
19 up.


20 So, starting with Appendix A, Appendix A is a source

21 file written in the C language for a simple program that
22 multiplies the numbers 1 through 5 together and then prints
23 out the result. In mathematical results, we'd say the program


24 computes the quantity 5 factorial.

25 I should say that Appendix A is the same form as the
1088
1 version of the DeCSS code that the Court has enjoined. The


2 source code written in the C program language just like the

3 anonymous C source code that the Court has enjoined.
4 What I next did was I compiled this source code.
5 Now, a compilation is actually a complicated process with a


6 number of different steps which are typically invisible to the

7 lay person, but computer scientists know about them.
8 So, when you feed the C source code to a C compiler,
9 let's say GCC, the new C compiler, it's a very commonly-used C


10 compiler. What the C compiler does it translates that source

11 code into a language called RTL, which is an abstract machine
12 language. Then it translates the RTL into assembly language


13 for whatever processor you're compiling for. In this case, I

14 was compiling for a spark processor for the sun work station
15 in my office.
16 Then an assembler takes the assembly language code
17 and translates that into machine executable code. So, what we



18 have in Appendix B is an intermediate stage in that process.
19 What I asked the C compiler to do was when it
20 translated the C to RTL, and then the RTL into assembly
21 language, I asked it to tell me and give me back the assembly



22 language, the intermediate product. So, from the C compiler's
23 point of view, Appendix B is the object code is a result of
24 what the C compiler does to the source code, but from the


25 assembler's point of view, assembler being the next guy in

1089
1 line that's going to process this, the assembler used this as


2 a source code, but as the assembler is going to turn it into

3 by their machine instructions.
4 So, if we proceed to Appendix C, what I next did was
5 I told the C compiler, go ahead and compile this program, and
6 instead of stopping at the assembly language level, stop at



7 the level of the binary machine code. What's called the .0
8 file or the object file and then I took that .0 file and I
9 displayed it using a utility program that displays binary

10 files.


11 And so, what you see are in Appendix C, the column of
12 numbers on the left, the leftmost column are the equivalent of
13 line numbers in a deposition. They're basically keeping track



14 of the position in the file and the remaining columns of
15 numbers are hexadecimal encryption codings of the binary bits
16 that make up the object file.
17 Finally, in Appendix D, I took that object file and



18 fed it to a program called a disassembler. And the object --
19 the disassembler translated the object file back into symbolic
20 assembly language form, and that's what we see in Appendix D.



21 Now, so the point I want to make here is that the
22 same ideas that were expressed in my statement to you that
23 five factorial is the product of the numbers 1 through 5 are

24 also expressed in all four of these appendices and they're


25 expressed in ways that are transparent to a computer
1090
1 scientist. And I'd like to show you that starting at Appendix

2 D, if you look at the line labeled 20 in Appendix D, it's 20


3 and a colon.
4 That line in the middle of that line, you see the
5 letters CMP, which stands for compare. So, this line is a

6 line that's telling the computer to compare two numbers.


7 And if you look to the right of the CMP, what it's
8 saying is compare the contents of register 00 with the number

9 5. So, this is a piece of symbolic assembly language code

10 which computer scientists can read just fine.

11 And if you look to the left of the CMP, you'll see
12 four groups of numbers. These are hexadecimal numbers. The
13 numbers are 80822005. This is the encoding of that compare


14 instruction in the binary machine language of the spark

15 processor.
16 So now, if you go back to Appendix C, and if you look
17 at in Appendix C, the line labeled 220, so it's about 10 lines


18 at the -- down from the top, the line labeled -- it's actually

19 0000220.
20 And if you look about halfway in that line, you'll
21 see the sequence 80822005. So, this is -- again, this is the


22 binary machine instruction that's that compare instruction

23 that we saw in Appendix D.
24 Now, we can go back once more to Appendix B. And if
25 you look at Appendix B, this is again symbolic assembly


1091

1 language. And so, on the left side of Appendix B, you'll see
2 some labels. There's a label main and a little bit further


3 down there's a label that says .LL3 on the left-hand side.

4 And if you look two lines below that .LL3, we see
5 again the compare instruction. CMP percent 00, 5. It's


6 comparing the contents of register 00 with the No. 5. We can
7 go back one more step and look at Appendix A, my C source

8 code.
9 And in Appendix A, about 5 lines down, there's a four


10 alone. It begins with the word "four" and then it says: Left
11 (I equals 1; I less than 6). That "I less than 6" that is

12 exactly what that compare instruction was turned into by the C


13 compiler.
14 So, the compare instruction is the expression of this
15 concept, "I less than 6" in the machine's assembly language.

16 Q. So, do I understand that these four appendices are


17 different ways of expressing the same idea?
18 A. Yes, it's exactly the same idea and you might ask, well,
19 why does "I less than 6" and yet in the assembly language

20 code, we are comparing the register against the No. 5. And


21 the reason is that it reflects a certain strategy used by the
22 C compiler to encryption code this 4 loop and that the only
23 way you could know about that strategy is to read the assembly



24 language.
25 And I hope what I've shown is that it's not that hard
1092
1 to do that.
2 Q. In terms of taking one of the items?



3 THE COURT: We are all going to get into
4 post-assembly language this afternoon.
5 THE WITNESS: Excuse me?
6 THE COURT: We are all going to get to post-assembly



7 language this afternoon.
8 Q. Doctor, can you tell me the skill level it would take to
9 take any one of the identities that appear on your gallery of
10 CSS descramblers and turn that into any one of the other



11 identities that appear on your gallery of descramblers, what
12 skill level would be involved?
13 MR. MERVIS: I object to the form of the question.
14 THE COURT: Overruled.



15 I think we can understand it.
16 A. Yes, since I've been involved in teaching computer science
17 for quite a few years, I'd say that anyone who had taken an
18 undergraduate level C programming course should be able to



19 convert between any of these forms.
20 MR. ATLAS: The final thing I'd like to move into
21 evidence, Exhibit BBE, which is the article and the appendices
22 that the doctor was just talking about.



23 MR. MERVIS: No objection, your Honor.
24 THE COURT: Received.
25 (Defendant's Exhibit BBE received in evidence)
1093



1 MR. ATLAS: I have no further questions for Dr.
2 Touretzky.
3 THE COURT: Thank you.
4 Any cross-examination, Mr. Mervis?
5 MR. MERVIS: Unless the professor is going to give us



6 all a quiz, the plaintiffs have no questions.
7 THE COURT: Well, Dr. Touretzky, let me just tell you
8 that this was illuminating and important. I was hoping we
9 were going to hear something like this through the whole



10 trial. I appreciate your having come.
11 THE WITNESS: Thank you, your Honor.
12 THE COURT: Thank you.
13 (Witness excused)
14 THE COURT: The witness is excused.



15 What's next?
16 ANDREW APPEL,
17 called as a witness by the Defendants,
18 having been duly sworn, testified as follows:
19 THE CLERK: State your name, spelling it slowly.



20 THE WITNESS: My name is Andrew Appel; A-P-P-E-L.
21 THE COURT: All right. Mr. Garbus, please proceed.
22 MR. GARBUS: Professor Appel is our clean-up hitter.

23 I think a lot of this has been cleaned up, so I'll just try to


24 cut short, if I can.
25 DIRECT EXAMINATION
1094
1 BY MR. GARBUS:

2 Q. Professor Appel, can you tell me something about your


3 educational background?
4 A. Yes, I have a bachelor of arts with highest honors from
5 Princeton University in 1981 in physics. I have a
Ph.D. in
6 computer science from Carnegie-Mellon University in 1985.


7 Q. And can you tell me something of your professional
8 appointments?
9 A. Yes. In 1986, I became an assistant professor of computer

10 science at Princeton University. Then in approximately 1992,


11 I was promoted to associate professor and then later to full
12 professor.
13 Q. And have you been at other universities as well?

14 A. No, my career since receiving the Ph.D. has been at


15 Princeton University.
16 Q. And what awards and honors have you won?
17 A. I received in 1981, the Cusaka Memorial Prize for my

18 undergraduate research in physics and the National Science


19 Foundation graduate fellowship and two or three years ago, I
20 was elected a fellow of the Association for Computing
21 Machinery.

22 Q. And what is the Association for Computing Machinery?


23 A. It's the primary scholarly and professional society in the
24 field of computer science and computing.
25 Q. Have you written any books or chapters in books and in

1095


1 what areas?
2 A. I've written two books in the area of compilers, one
3 graduate textbook in 1991 and one an undergraduate and

4 graduate textbook in 1998 and I've written approximately 50


5 published papers.
6 Q. Now, one of the questions is: What do you bring to this
7 case that let's say some of the other witnesses who have

8 testified, what is the difference between your area of work


9 and Professor Felton?
10 A. We both do research in the broad area of computer
11 security. My research systems from my previous work in the

12 area of programming languages and compilers and is more in the


13 area of theoretical approaches to protecting computers from
14 the programs that run on them and protecting the programs from

15 the computers that run them.
16 Professor Felton's area is more in the broad area of


17 systems security, what are the practical vulnerabilities of
18 real systems as implemented.

19 Q. And during the course of your work, do you publish codes?
20 A. In my work on compilers, I routinely would publish


21 computer programs in both source code and object code form so

22 that other scientists could take my work and do comparisons or
23 improve it by replacing one component or another.
24 Q. Are compilers an area of your expertise?


25 A. Yeah, I've done about 10 or 12 years of research in the

1096
1 area of compilers and published two books and many articles in


2 that area.
3 Q. What is the relationship between compilers and this whole
4 question of source and object code?
5 A. The compiler is what translates the source code to the
6 object code. So, that's the relationship.



7 Q. How does it work?
8 A. The compiler reads the source code, parses its structure,
9 understands the semantics, and then translates -- translates
10 each of those structures into the appropriate manifestation in



11 object code.
12 Q. Are you being paid for your work here today?
13 A. No, I believe not.
14 Q. Why are you testifying?
15 A. I'm concerned about censorship of computer programs. I'm



16 concerned about the prospects or the end of fair use of
17 material distributed digitally. Those are the main reasons.
18 Q. Have you ever written any article -- did you co-author an

19 article with Professor Felton?


20 A. I've co-authored two or three articles with Professor
21 Felton.
22 Q. And did you co-author an article with him entitled,
23 "Technological access control interferes with noninfringing



24 scholarship"?
25 A. Yes.
1097
1 Q. And what was the source of the information in that
2 article?
3 A. In that article, we wanted to demonstrate that many kinds



4 of scholarship, especially scholarly searches of different
5 kinds of material would require access to the unencrypted
6 content.
7 Some of the sources were our own expertise in the



8 representation of text and computer programs and for the
9 sections on audio and video, we also read the research
10 literature and consulted with other experts.
11 Q. And do you recall the examples you used in your article?



12 A. I used examples of searching text materials such as books
13 for not only individual words, but also correlations between
14 one part of the document and another. I used examples of

15 analyzing musical scores to extract themes. I used examples


16 of searching digital audio such as CDs for themes and
17 transitions.
18 Q. And how is that affected by the issues that we face here?

19 MR. MERVIS: Objection, your Honor, relevance.


20 THE COURT: Overruled.
21 A. If scholars are unable to access the unencrypted content
22 of movies, then they will not be able to do research that

23 requires automated search of those materials. And there are


24 many benefits to those areas of research.
25 Q. What are the benefits?
1098

1 A. Well, the first benefit is in developing the methods


2 themselves for doing automated search. Scientists need input
3 on which to test their methods.
4 The second is that the searches themselves will be

5 useful, not just to computer scientists or experts in video,


6 but scientists may wish to do searches for purposes in society
7 and the example we gave in the paper is that one might in the

8 future wish to search a library of Hollywood movies for scenes


9 that contain cigarettes, perhaps as part of public health
10 research.
11 The technology is not there yet for doing a search of
12 that kind, but that's just the kind of thing that computer



13 scientists and video engineers are working on.
14 Q. This, also, applied to books that run DVDs or music that
15 was on DVDs?
16 A. Yeah, if other kinds of content such as books and audio



17 are distributed with technological access controls, then many
18 kinds of searches on those materials will also become
19 impossible.
20 Q. Did you follow the development of the DMCA, the Digital



21 Millennium Copyright Act?
22 MR. MERVIS: Objection, your Honor, relevance.
23 THE COURT: Sustained.
24 Q. Did you submit a paper to Congress?
25 A. The article that you mentioned on technological access



1099
1 controls was submitted to the copyright office as part of its
2 rule-making procedures.
3 I believe I also signed a letter initiated by Gene



4 Spafford which had to do with the exemption in the law for
5 research by cryptography research for reverse engineering of
6 access controls.
7 Q. In what form are text files stored in a computer?



8 A. The text files are stored using 1's and 0's usually in a
9 correspondence given by the ASCII codes that matched the 1's
10 and 0's to letters and numbers.
11 Q. Is that source code or object code or both?



12 A. Source code would be stored, you know, according to the
13 correspondence given by the ASCII code. Object code would be
14 stored as 1's and 0's, according to the correspondence given



15 in the reference manual for the particular computer.
16 Q. Do you know what DeCSS is?
17 A. DeCSS is a program that decrypts content that was
18 encrypted CSS with algorithm.
19 Q. When did you first learn about it?



20 A. I think I learned of the existence of DeCSS sometime I
21 would guess around January. I became more familiar with it in
22 approximately March or April.
23 Q. And where did you go to find it?



24 A. I just typed DeCSS into a web search engine. I believe I
25 used Google, and that gave me a few hundred hits, I believe,
1100


1 and I examined each of the web pages just by viewing it until

2 I found some that had source code claiming to be DeCSS.
3 Q. Did you go to Bruce Schneier's website?
4 A. I believe I did, yes.


5 Q. And who is he?
6 A. Bruce Schneier is a cryptographer. He's an author of a

7 widely-used text and reference book on applied cryptography.
8 Q. Did you go to David Wagner's site?


9 A. Yes, I did.
10 Q. And who is he?
11 A. David Wagner is a graduate student or maybe he's just

12 received the Ph.D. from the University of California at
13 Berkeley. He does research in practical aspects of computer


14 security, including cryptographic protocols.
15 Q. And did you also go to Professor Touretzky's site?

16 A. Yes, I did.
17 Q. Did you go to Greg Nuby's site?
18 A. Yes.


19 Q. And who is he?
20 A. Greg Nuby is a professor of library science and he had a
21 website that discussed DeCSS as it would be useful to

22 librarians in archiving digital material.


23 Q. Do you have a web page?
24 A. Yes, I do.
25 Q. Did you post DeCSS?
1101

1 A. No, I do not.
2 Q. Why not?


3 A. I wasn't sure what the legal aspects of doing so would be
4 and I didn't have an immediate need to do it.
5 Q. Now, is it your testimony -- text and source code and

6 object code each stored its 1's and 0's in the computer?


7 A. They're all stored as 1's and 0's.
8 Q. Now, now does the -- does the word "blowfish" mean
9 anything to you?

10 A. "Blowfish" is an encryption algorithm designed I believe


11 by Bruce Schneier two or three years ago.
12 Q. And the following initial C2TXT2C, can you tell me what
13 that is?

14 A. Yes. At the time that blowfish was invented, there was

15 still some question in the United States law whether it was

16 permissible to post cryptographic algorithms on the Internet.
17 So, a computer scientist in Finland, I believe,

18 designed a program called C2 Text 2C that would translate

19 Schneier's computer program from source code to English

20 language text. And English language text would be, in effect,
21 a description of the computer program, but it would not be the


22 computer program itself.
23 And there's also as part of this utility a program

24 that would translate the English language text back to a C
25 program. So, I was interested in this because it shows the


1102
1 difficulty of drawing a line in prohibiting the distribution

2 of source code, but not prohibiting descriptions of the

3 algorithm in English.

4 Q. Now, have you ever met Eric Corley or Emmanuel Goldstein
5 in this case?
6 A. No, I have not.

7 Q. You testified that you do work in the area of security

8 with Professor Felton, can you tell us about your experience

9 with the web browser?
10 A. Yes. About three or four years ago, when web browsers

11 were just coming out, that supported the java programming

12 language, that is to say, a website could provide a computer

13 program that would run in the browser of the user.
14 There was some concern about whether this would be a

15 way for viruses to propagate from the website being browsed

16 into the user's computer. And the claim made with the initial

17 java enabled browsers was that they provided security against

18 attacks by the website to the user's computer.

19 Some students at Princeton found ways to defeat the
20 security. Half a dozen different methods initially and they

21 came to me and I believe also they came separately to

22 Professor Felton asking whether they should publish a

23 description of these security holes and whether that would be
24 research in computer science that would be valuable to pursue.

25 And I advised them that it would be an excellent subject for


1103
1 research and they did, in fact, publish that paper.
2 Q. Have you been involved in any other situations concerning

3 vulnerabilities of codes --


4 A. Well, the research I do has to do with -- I'm not sure.
5 Q. You don't have a sun tan, but were you in Hawaii last
6 week?
7 A. I was at a meeting of the defense advanced research



8 project agency meeting of principal investigators in the area
9 of computer security.
10 Q. And were you at a conference that dealt specifically with
11 the whole question of vulnerability in systems?



12 A. Right. The -- one of the program managers who works for
13 the defense department convened a workshop of all of these
14 researchers working in the area of security. These
15 researchers are trying to build more secure systems that can



16 defend against attacks by hackers. And one of the workshops
17 that he convened was to have the researchers explain exactly
18 what kinds of attacks they're defending against.
19 And one thing we concluded in this discussion was



20 that the researchers building the defenses don't have a very
21 good exploit the vulnerabilities in systems the better so that
22 we can design more security systems to make that defense.


23 MR. MERVIS: Your Honor, move to strike the answer.

24 It was entirely based on hearsay.
25 A. Right. The -- one of the program managers who works for
1104


1 the defense department convened a workshop of all of these

2 researchers working in the area of security. These
3 researchers are trying to build more secure systems that can
4 defend against attacks by hackers.


5 And one of the workshops that he convened was to have

6 the researchers explain exactly what kinds of attacks they're
7 defending against. And 1 thing we concluded in this

8 discussion was that the researchers builds the defenses don't

9 have a very good exploit the vulnerabilities in systems the

10 better so that we can design more security systems to make

11 that defense.
12 MR. MERVIS: Your Honor, move to strike the answer.

13 It was entirely based on hearsay.
14 THE COURT: What do you say, Mr. Garbus?

15 BY MR. GARBUS:

16 Q. Did you participate in these conversations?
17 A. I participate in the conversations and I gave a short

18 presentation of about 15 minutes.
19 THE COURT: Look it seems to me this is an is self


20 evident proposition, I will overrule the objection.
21 Q. With respect to Frank Stevenson, have you ever read his

22 paper dealing with DeCSS?
23 A. Yes, that was one of the first things I found on the web


24 when I was looking for DeCSS and I found his analysis of the
25 DeCSS algorithm to be very helpful.

1105
1 Q. Why?
2 A. Because it explained what the source code was doing, what


3 the CSS system itself was accomplishing that the source code

4 was undoing and what were the weaknesses in the system.
5 MR. GARBUS: Thank you, Professor.
6 I would like to move in as Defendant's BL, the


7 affidavit of Professor Appel, which goes into more deeply,

8 which I don't think I have to go into here and annexed to it
9 is his vitae and annexed to that is the paper that he's

10 referred to.

11 THE COURT: Mr. Mervis?
12 MR. MERVIS: Your Honor, with respect to the

13 affidavit, I just have to find a copy of it. We do object to
14 paragraphs 14 -- we don't object to the CV. So, that's no


15 objection to that.
16 THE COURT: May I have a copy of this exhibit?

17 MR. GARBUS: Your Honor, you have already made
18 rulings on the previous affidavit. I would think those would


19 be appropriate here in not accepting Professor Appel's --
20 THE COURT: Tell me what the paragraph is you are

21 objecting to, Mr. Mervis.
22 MR. MERVIS: Paragraphs 1 through 13, I think are of


23 dubious relevance, but we don't have any particular objection.
24 14 through 19, we do object to on the grounds of

25 relevance. We also in particular object to that part of

1106

1 paragraph 14 that discusses what appears on various websites
2 on two grounds; No. 1, that it's not the best evidence, and


3 No. 2, it's hearsay.
4 THE COURT: Let me just look at it.

5 MR. GARBUS: Your Honor, to save time, you might want
6 to just take it subject to those rulings.


7 THE COURT: Just give me a moment.
8 What about Attachment B, Mr. Mervis?

9 MR. MERVIS: Your Honor, I believe that this exhibit
10 is already in evidence.

11 THE COURT: So, then you don't have a problem with

12 it?
13 MR. MERVIS: Well, no, your Honor. I have no

14 problem, assuming that your Honor's comments with respect to

15 the exhibit and its weight, I assume, would apply with respect

16 to this witness as well.
17 THE COURT: I'm not sure I made any.

18 MR. MERVIS: Your Honor, let me see if I can find

19 the --
20 THE COURT: All right, look --

21 MR. MERVIS: The answer is no. I don't have an
22 objection. It's reflected at page 755 of the trial

23 transcript.

24 THE COURT: O.K., fine. So, I'm going to take BL out

25 to the extent that the witness in BL offers opinions on the
1107


1 law. I'm obviously not going to consider it.
2 To the extent that paragraph 14 relates to what he

3 saw on other people's websites, what about that, Mr. Garbus?
4 MR. GARBUS: Let me ask him the question.


5 BY MR. GARBUS:
6 Q. Did you see this material on other people's websites?

7 A. Yes.
8 MR. MERVIS: I did. The material discussed in
9 paragraph 14 I found by searching the web for references to


10 DeCSS and taking particular note of those that were describing

11 it in a scholarly context.
12 THE COURT: That's adequate, as far as I could see.
13 So, BL is received with its attachments except to the


14 extent it contains legal opinions.

15 And I think that takes care of that.
16 MR. GARBUS: Thank you. I have no further questions.
17 THE COURT: Thank you. Any cross-examination?


18 MR GOLD: Your Honor, I thought I'd get through the

19 trial without making any requests for a sidebar, but by 15
20 minutes I lost. May we approach?
21 THE COURT: All right.


22 (At the sidebar)
23 MR GOLD: Your Honor, as a result of the testimony of

24 the last witness, which we didn't expect based on his
25 deposition or anything, as I said before, I need about 15


1108
1 minutes or 20 to decide whether we have any cross for him at

2 all and whether we were going to go forward with our efforts

3 to put in a witness on rebuttal.

4 So, what I'd like to do, with your Honor's
5 indulgence, is take the lunch break 15 minutes early, come

6 back 15 minutes earlier than usual, and then announce whether

7 we'll cross him and whether we have any rebuttal case and who

8 it would be and how long.
9 THE COURT: Any problem?

10 MR. GARBUS: That would be fine.
11 MR. ATLAS: I said something which probably should be

12 clarified. Before we close, we would have to deal with all

13 the documents.

14 THE COURT: They have their documents, too.
15 MR. GARBUS: That would be part of the case before

16 anybody closes.
17 MR. ATLAS: You'd be glad to know we took our seven


18 boxes and narrowed it is down to three-quarters of a box.
19 THE COURT: Good.
20 MR. MERVIS: I did note it was a small case about

21 what was in here, I was right about that.


22 MR. ATLAS: We provided plaintiff's counsel with the
23 list of exhibits. I'm sure they'll have some objections, too.

24 THE COURT: We will deal with that later.


25 (In open court)
1109
1 THE COURT: We are going to take the lunch recess
2 now. I will see everybody back at a quarter to 2 and we will



3 go from there.
4 (Luncheon recess)
5 (Continued on next page)
6
7
8
9
10
11
12
13
14
15
16
17
18

19


20
21
22
23
24
25
1110
1 A F T E R N O O N S E S S I O N
2 (In open court)
3 THE COURT: Please be seated. Good afternoon folks.



4 Any cross-examination for this witness?
5 MR. MERVIS: Yes, your Honor, a little bit.
6 THE COURT: Okay.
7 ANDREW APPEL, resumed.
8 CROSS-EXAMINATION

9 BY MR. MERVIS:


10 Q. Good afternoon, Professor Appel. Am I correct in
11 understanding that you have never personally used the DeCSS?
12 A. That's correct.
13 Q. And that would include the encrypted DVD?



14 A. That's correct.
15 Q. And am I also correct that in connection with your
16 teaching at Princeton, you've never used the DeCSS code, is
17 that correct?
18 A. That is also true.



19 Q. And apart from the presence of your declaration in this
20 case on your website, your website doesn't discuss DeCSS in
21 any way, is that right?
22 A. That's right.

23 Q. And is it, also, correct that you have never analyzed the


24 DeCSS in object code form?
25 A. That's right. I've analyzed other programs in connection
1111

1 with reverse engineering of encryption software in object


2 code, but not DeCSS in particular.
3 Q. Thank you. Now, do you recall testifying this morning on
4 direct that you used the Google search engine to find DeCSS

5 code on the Internet?


6 A. That's right.
7 Q. And am I correct in understanding that your search was you
8 typed in the character stream DeCSS?
9 A. That's right.
10 Q. And you got, what, about a hundred hits or so?



11 A. At least a hundred.
12 Q. At least a hundred. Now, am I correct in understanding
13 that when you conducted that search, you were looking for
14 DeCSS source code, is that right?


15 A. My primary interest at that time was to look for the

16 source code.
17 Q. Now, approximately how many sites did you visit, that were
18 reported under search result, before you actually found the


19 source code?
20 A. I don't recall. My guess is somewhere between five and

21 ten.
22 Q. And with respect to those five or ten sites that you
23 visited before you found the source code, is it correct that


24 you don't know whether object code was present on any of those

25 sites?
1112
1 A. I don't recall.
2 Q. Now, once you found the source code after visiting five to


3 ten sites, did you make any further searches of any other

4 sites that were reported on your search result?
5 A. Yes, I did. I was interested in seeing how many of the
6 sites were posting DeCSS in a scholarly context.


7 Q. I see. And how many such sites did you visit?

8 A. Out of the sites I visited, at that time I identified four
9 in particular.
10 Q. Four of those you visited. Okay, four had -- you claim


11 had some sort of scholarly commentary on them?

12 A. Right, a discussion of DeCSS in a scholarly context.
13 Q. I see. Now, how many sites total did you visit to find
14 those four?


15 A. My estimate is on the order of a hundred.
16 Q. On the order of a hundred. Now, of those hundred, how

17 many of them contain or had posed to them either DeCSS source
18 code or object code?


19 A. My guess is it would have been on the order of 20 or 30.
20 Q. So roughly a quarter, less than a quarter?

21 A. I just don't recall.
22 THE COURT: You don't need a

Ph.D. in engineering
23 from Princeton to do that one.
24 MR. MERVIS: Your Honor, agreed, and I will not do

25 that one. My math is not that good.
1113


1 Q. Now, is it correct, Dr. Appel, that the search result from
2 a search engine is driven by the character stream you type in,

3 is that right?
4 A. That's right.
5 Q. And in this case the character stream was DeCSS, is that


6 right?
7 A. That's right.
8 Q. Am I correct in understanding that the Google search that

9 you did not tell you how many of the site hits you got
10 actually had on them either DeCSS source code or object or


11 binary code, right?
12 A. That's right.
13 Q. Were any of the sites that were reported in your search

14 results offered on the same ISP?
15 A. I don't recall. The same ISP as each other?


16 Q. Correct.
17 A. I don't recall.
18 Q. And do you know whether any of the sites that were

19 reported on your search result were foreign sites?
20 A. Yes. Some of them were foreign sites.


21 Q. About how many?
22 A. I don't -- I didn't keep track of the proportion.
23 Q. And were there instances in which the same site was

24 reported more than once in your search result?


25 A. I don't remember.
1114
1 Q. That's something that's -- excuse me. I'm sorry. I just

2 ate lunch. That's something that's common with search


3 engines, isn't it?
4 A. It's common to have different pages on the same site pop
5 up in the same search.
6 Q. Do you know whether any of the sites that were reported in



7 your search result merely linked to other sites where either
8 it did not have DeCSS code posted or were simply inactive?
9 A. Some of the sites I found didn't have DeCSS and didn't

10 link to it. They just mentioned it. Some of them linked to
11 it. Some of them had it directly. I didn't keep count of
12 which was which.
13 MR. MERVIS: Can I take a moment to consult, your



14 Honor?
15 THE COURT: Yes.
16 MR. MERVIS: Nothing further, Judge.
17 THE COURT: Thank you, Mr. Mervis. Any redirect?
18 MR. GARBUS: We have no redirect.



19 THE COURT: Thank you. You're excused.
20 (Witness excused)
21 THE COURT: Any witnesses for the defendants?
22 MR. GOLD: Oh, excuse me.

23 MR. GARBUS: That's the end of live witnesses. We


24 have some depositions of witnesses who will not be here, but I
25 guess that becomes the subject of later discussion.
1115

1 THE COURT: Right. Mr. Gold, will there be any


2 rebuttal witnesses?
3 MR. GOLD: There will not be, your Honor.
4 THE COURT: Okay. Well, then I think the logical

5 order is to take up first the plaintiffs' and then the


6 defendants' documents that remain unresolved and conclude the
7 taking of evidence. Mr. Gold. Mr. Sims.
8 MR. SIMS: Yes. First of all, I would just like to

9 correct the record if I might. On page 794, on July 20th, we


10 had moved in four exhibits, and they were 1.13, 1.14, 1.15 and
11 1.16, and the record reflects 113, 114, 115 and 116, and I'd

12 like the record to be correct.
13 THE COURT: Tell me the page number.


14 MR. SIMS: 794, I believe. July 20th.
15 THE COURT: July 20th.
16 MR. SIMS: July 20.

17 THE COURT: Okay. That's better. The page hasn't


18 come up yet. All right. Is there any dispute about it, first
19 of all? Mr. Garbus.
20 MR. GARBUS: Excuse me. Mr. Atlas will handle this.
21 THE COURT: Mr. Atlas.
22 MR. ATLAS: Certain dates were not --



23 MR. SIMS: Okay. There were four exhibits moved in
24 on the 20th, which were 1.13 through 1.16, and the transcript
25 refers to them as 113, 114, 115, and 116.
1116



1 MR. ATLAS: Those are the demonstratives.
2 THE COURT: Look, my notes reflect that what --
3 MR. SIMS: They were the hacker magazines. I'm
4 sorry.


5 THE COURT: My notes reflect at that time what were

6 113, 114, 115, 116, 1.11, 1.1, 1.2, 1.4, 1.6, 1.8, 1.7, 1.5,
7 1.3, and 1.12.
8 MR. SIMS: They should all have a decimal point after


9 the first one. They were each quarterly magazines that Mr.

10 Garbus gave to the witnesses.
11 THE COURT: So it's not Plaintiffs' 113. It's 1.13
12 through 1.6
. Any disagreement with that, Mr. Atlas?

13 MR. ATLAS: No.

14 THE COURT: Okay. That correction is made.
15 MR. SIMS: Secondly, we had given last Wednesday, I

16 think, a list of plaintiffs' exhibits that we wanted to move

17 in, and the defendants gave me a list of objections, and they

18 stated positions with respect to all of the exhibits on our

19 list, other than the last three.
20 And I've typed this up, and I've given it to Mr.

21 Atlas this morning. And, I think, assuming that it's

22 complete -- or we can correct it -- one way to do this would

23 be to mark this, and then you'll have -- we can do it another

24 way as well. But this is a list of exhibits we want, together

25 with those objections that they have, and I think there are
1117
1 just three more to go.
2 THE COURT: Just hand it up.



3 MR. ATLAS: On 62, you have our objection being
4 hearsay. I'm told that what's missing is we object as to
5 completeness as well.
6 MR. SIMS: 62.
7 MR. ATLAS: That's fine.



8 MR. GARBUS: Your Honor, would it help you if we did
9 this outside of your presence and just give you the exhibits
10 or would that --
11 THE COURT: I'm afraid that I'll get 1500 documents



12 that way.
13 MR. SIMS: I think we can do it pretty efficiently.
14 THE COURT: All right. Hand this up, and let's get
15 it resolved. I appreciate the suggestion, but I would just



16 assume get this nailed down once and for all.
17 All right, Mr. Sims, hand it up. Let's go.
18 MR. SIMS: Here it is, your Honor. I think it should
19 be marked for convenience as 132.



20 THE DEPUTY CLERK: Mark this one 132?
21 MR. SIMS: Your Honor, would you like it as an
22 exhibit?
23 THE COURT: It's 132 for identification. Let me just



24 look at it.
25 (Pause)
1118
1 THE COURT: All right. So the following are received
2 without objection. Plaintiffs 1, Plaintiffs 4, Plaintiffs 28,



3 Plaintiffs 51 through 55, inclusive, Plaintiffs 64, 69, 72,
4 79, 126 and 129.
5 (Plaintiffs' Exhibits 1, 4, 28, 51-55, 64, 69, 72,
6 79, 126 and 129 received in evidence)



7 MR. ATLAS: We provided counsel for plaintiffs a list
8 of the exhibits we wanted to move in. I haven't gotten
9 objections yet, but --
10 THE COURT: Wait a second. Before we get to your



11 exhibits, let's deal with the rest of them. All right. Do I
12 correctly understand, Mr. Atlas that as to Plaintiffs' 2,
13 which consists of 2.1 through 2.34, physical exhibits, you



14 object only to 2.1? Is that right?
15 MR. ATLAS: Hold on. Do you have the letter you sent
16 to me?
17 MR. SIMS: I gave it to you this morning.
18 (Pause)



19 MR. ATLAS: I believe in terms of 2, it was just
20 given to me as Plaintiffs' Exhibit 2. Those were the
21 demonstrative exhibits, the photographs.
22 MR. SIMS: Your Honor, Exhibit 2 was a group of DVDs,



23 commercially marketed, some from each plaintiff, and then
24 Exhibit 3 were the copyright certificates.
25 THE COURT: Do you have any problem with any of them?
1119



1 MR. ATLAS: No.
2 THE COURT: Plaintiffs' Exhibit 2.1 through 2.34 and
3 the corresponding certificates of registration, which are 3.1
4 through, I assume, 34, whatever it is, are received.



5 (Plaintiffs Exhibits 2.1 through 2.34 and 3.1 through
6 3.34 received in evidence)
7 MR. ATLAS: For the record, we have, I believe,
8 copies of the copyright forms. We don't have copies of the



9 films. I suppose if we're going to put them in, we should
10 have a set.
11 MR. SIMS: We could stipulate to the relevant fact.
12 The relevant fact is simply that all of the plaintiffs have



13 commercially marketed DVDs protected by DeCSS. We have
14 testimony of that, which are registered. I mean, we don't
15 need the Court to look at all the movies.
16 THE COURT: So stipulated? So I'm not getting 34 DVD



17 movies here?
18 MR. SIMS: We're glad to make them available.
19 THE COURT: Okay. Next we have Plaintiffs' Exhibit
20 5. My exhibit book is blank. There is no Plaintiffs' Exhibit



21 5 here.
22 MR. ATLAS: We understand Plaintiffs' Exhibit 5 were
23 copies of pirated CDs, is how they were described to me.
24 MR. SIMS: Your Honor, we'll withdraw Exhibit 5.



25 THE COURT: That takes care of that. All right. The
1120
1 next objection as noted is Plaintiffs' 59. What's going on



2 here?
3 MR. SIMS: Your Honor, 59 through -- do you have the
4 exhibit list, your Honor, or not? 59 through 73, whichever of
5 those are on this list, were all web pages that were attached



6 to the Boyden declaration. I had an agreement with Mr.
7 Hernstadt that all of those exhibits could come in. We were
8 discussing the separate question as to whether the allegations

9 and the affidavit could come in.


10 We finally decided at the time Mr. Boyden was brought
11 up not to put him on with respect to the allegations in his
12 affidavit on reliance of Mr. Hernstadt's agreement that the



13 exhibits, which are simply web pages, would come in, and we
14 would have a stipulation of authenticity with the other side
15 that we've signed. I believe they've signed, and I think --


16 I'm not sure the record reflects that stipulation.

17 If I might ask, maybe this would be an appropriate
18 place to get the stipulation of authenticity on the record,
19 and then I can't imagine that there's a problem with these web



20 pages.
21 MR. HERNSTADT: Your Honor, we agreed that rather
22 than require Mr. Boyden to come in up here and look at the
23 screen and say this is a screen shot, that we would accept the



24 representation that that is what he would say, and the screen
25 shot could come in for what they were, which is a screen shot
1121


1 of a particular web page on a particular date.

2 THE COURT: So I take it there's no objection to any
3 of 59 through 73 to the extent that they're offered as screen
4 shots of the web pages? They're dated as of the dates they



5 were taken. Correct?
6 MR. HERNSTADT: Correct.
7 THE COURT: Okay, now -- and then I assume further
8 that the question of whether anything that may appear on them



9 is to be considered for the truth is going to be considered
10 under the broad analysis that we discussed previously, which
11 I've asked you for briefing?
12 MR. SIMS: Yes.
13 THE COURT: Mr. Hernstadt.



14 MR. HERNSTADT: Yes.
15 THE COURT: So that takes care of 59 to 73. My law
16 clerk has just handed me a note to remind you that the
17 deadline I established last week, having gone without



18 objection, I'm taking notice of the specific paragraphs of the
19 Microsoft findings that I alerted you to.
20 MR. SIMS: Your Honor, we had actually said it was
21 all right, and with respect to the Linux matter, paragraph 50



22 in that opinion relates to Linux.
23 THE COURT: Yes. I'm familiar with that.
24 MR. SIMS: And we don't have any objection to
25 paragraph 50.
1122



1 MR. GARBUS: Your Honor, I would like to take a look
2 at it if I can and get back to you. May I? Thank you.
3 THE COURT: Okay. We'll move ahead while you take a


4 look at it.

5 MR. GARBUS: I don't see how we could have an
6 objection to it anyway. It's a court objection.
7 THE COURT: Of course you can have an objection to it


8 as a matter of fact. Courts make all sorts of funny findings

9 of facts as I'm told.
10 MR. ATLAS: 74, I believe.
11 THE COURT: 74. Mr. Sims.
12 MR. SIMS: Your Honor, if I could go briefly out of


13 order. 77 and 93 were attached to the deposition of Mr.

14 Kenswil, which we're offering. he's unavailable. We've
15 offered it. He's a music industry executive. He's talking


16 about the sorts of harm that can arise. 77 and 93 were

17 testified to in the deposition, which we'll offer in a bit, as
18 providing the bases in part of his opinion, and, therefore,


19 they come in, I believe, under 703 for that purpose as you
20 ruled with respect to other matters.

21 I don't recall actually that he testified that he
22 relied on 74 through -- and 75 and 76, so I guess --


23 THE COURT: So you're withdrawing 74 to 76?
24 MR. SIMS: Yes.

25 THE COURT: 93 and 77.
1123


1 MR. SIMS: And 93.
2 THE COURT: And 93. Any objection to they're coming

3 in under 703 for the limited purpose that it so contemplates?
4 MR. ATLAS: I don't have a recollection that the


5 witness testified he relied on them. They were provided in a
6 packet by Mr. Gold of things that he relied upon or he would

7 be asked about. If the transcript reflects that he relied on


8 them, I guess I would have no objection to they're coming in
9 for that limited purpose.
10 THE COURT: I'm going to take them in for that

11 limited purpose subject, of course, to the predicate being


12 laid in the transcript.
13 (Plaintiffs' Exhibits 77 and 93 received in evidence)
14 MR. ATLAS: I guess I have a separate objection to

15 his testimony all together, as well as these exhibits. It's a


16 different case. It's a music case. I think what may or may
17 not have happened in the music case with Napster is not

18 relevant to what's before us now.
19 THE COURT: You want to respond to that?
20 MR. SIMS: Sure. He testified in the deposition
21 about the quickness, the speed with which this new technology



22 began causing substantial harm. And since, I think, one of
23 the issues here is the reasonable apprehension of harm that
24 the plaintiffs face, I think his testimony is relevant to that


25 issue.

1124
1 THE COURT: All right. I'm going to take it for what
2 it's worth, but I'm not sure it's worth much. Okay that takes



3 us to 92. What about 92, Mr. Sims?
4 MR. SIMS: 92, I think, I do not recall that he
5 expressly -- it's the same thing. I don't recall that he
6 expressly relied on it.



7 THE COURT: So it's withdrawn.
8 MR. SIMS: Yes.
9 THE COURT: Okay, 93.
10 MR. SIMS: We've just covered. It was 93 and 77 that
11 I believe you did rule in.



12 THE COURT: 96.
13 MR. SIMS: That is the deposition of Mr. Corely as
14 designated. I believe we moved that in some days earlier. If
15 not, we would certainly move it in as a completion of the



16 cross-examination under the ruling that you made, I believe,
17 last week.
18 THE COURT: Any objections to 96? While you think
19 about that, Mr. Atlas, you've got a couple hundred pages of



20 material here, Mr. Sims. Now -- maybe 400. I mean, do you
21 really want me to read this? I'm serious. I mean, we had the
22 man on the stand. Is there anything in there that I need to



23 read to decide this case?
24 MR. SIMS: There are admissions in there, your Honor.
25 I mean, as I understood the rulings you had made, it was that
1125



1 a party couldn't call its own witness and then dump in, if you
2 would, the deposition, but that with respect to a witness
3 called by the other side, that could be added in terms of --


4 THE COURT: Well, sure. But haven't you picked out

5 the gems, or is that what these little black lines in the
6 margin mean?
7 MR. SIMS: Well, with respect to every deposition


8 that's been handed to you, you're getting a complete

9 transcript, but there are lines on the side that are the
10 portions designated.
11 THE COURT: I see.
12 MR. SIMS: In some of them, there's no distinction


13 between who designated because it doesn't really matter. So

14 it's not that the whole deposition is being offered. It's
15 just the pieces that have been marked which comprises the


16 markings by both sides.
17 MR. ATLAS: I believe we're objecting to portions of

18 their designations, but I believe that would be reflected
19 before.
20 THE COURT: Pardon me.


21 MR. ATLAS: In what we are submitting.
22 MR. SIMS: Your Honor, we might be able to pare down

23 depending on the rest of the rulings here.
24 THE COURT: Look, for the sake of wrapping this up,


25 I'll take the designated portions of 96 subject to whatever
1126

1 objections have been made. And if I don't in the course of my


2 findings rely on something in 96 or any other deposition, you
3 should just assume it's not in if it's objected to.

4 MR. ATLAS: Your Honor, I don't know whether Exhibit
5 96 reflects our objections to the testimony. Does it?
6 THE COURT: Not that I see, other than the form
7 objections, of course.



8 MR. ATLAS: I think Mr. Rollings who handle the
9 depositions objected to some of the portions that you tried to
10 get in. I just want to make sure before they go to the Court.


11 MR. SIMS: Your Honor, there's an index in the front.

12 If Mr. Rollings has given us a revised version of that, that
13 has a few more objections on it, I have no objection.
14 THE COURT: There's nothing here. The index in the


15 front just includes plaintiffs' designations.

16 MR. SIMS: And there's no objections.
17 THE COURT: Correct.
18 MR. SIMS: I don't have a problem if it's a


19 mechanical problem that you don't have them in court.

20 MR. ATLAS: I mean, we could present, if the Court
21 wishes, depositions, color marks showing who objected to
22 what -- I think Mr. Rollings -- well --


23 MR. SIMS: It is the defendants' testimony in case.

24 THE COURT: I know. Look --
25 MR. ATLAS: I think we have designations to which we
1127


1 objected to and, I could provide the Court with that

2 information.
3 THE COURT: Do that. Okay, fine. That takes care of
4 96. 97?
5 MR. ATLAS: I think that was actually offered into


6 evidence. I think even accepted at one point. =20

7 THE COURT: It looks very familiar.
8 MR. ATLAS: The one that had the words at the bottom.
9 MR. SIMS: I'm sorry. 97 is in evidence on the 18th.


10 THE COURT: So, 97 is in. 98.

11 MR. ATLAS: 97 is in with an objection to those words
12 that have been inserted by the witness.
13 THE COURT: And then I think the witness testified to


14 the words, or whatever the transcript shows, it shows.

15 MR. ATLAS: Fine.
16 THE COURT: 98, what is this? This is the download
17 of all the links on the Joint 2600 or something else?


18 MR. SIMS: It's a sample of those, your Honor.

19 THE COURT: Is there any objection on 98?
20 MR. ATLAS: I think for completeness, it's probably
21 hearsay.


22 MR. SIMS: I think the stipulation of authenticity

23 covers it, your Honor.
24 MR. ATLAS: Well, it's not just links. There's also
25 a lot of text. Stop DMCA. Stop download here. I guess I


1128

1 don't know what they're trying to get it in for.
2 MR. SIMS: It's not offered for the truth. It is

3 what it is, and I think it's relevant to questions.

4 THE COURT: I'm taking it on that limited basis.

5 (Plaintiffs' Exhibit 98 received in evidence)
6 THE COURT: Okay. Moving right along. 127, kenswil


7 deposition.
8 MR. SIMS: Yes. If your Honor wants to take the

9 depositions -- well, these are the depositions we're moving
10 in. Mr. Kenswil is the music executive that I referred to


11 earlier. We took his deposition. We established on the
12 record that he would be unavailable.

13 THE COURT: All right. So that's subject to the
14 ruling I already made.


15 MR. ATLAS: We have no objection to the entire
16 testimony coming in, but we've noted that --

17 THE COURT: Yes, I understand. I'm just not going to
18 resolve it right now. I'm going to take it, and if it's worth


19 something -- but I understand your relevance objection, and I

20 am not supposed to be trying the music case here. Okay.
21 MR. ATLAS: We also designated an -- I guess we
22 objected to portions of Mr. Kenswil's deposition, and in


23 addition to relevance, I don't know whether those are

24 reflected on what your Honor has.
25 THE COURT: They are not.
1129


1 MR. SIMS: I don't have any problem with their

2 substituting a copy.
3 THE COURT: You'll get me these objections by
4 tomorrow.
5 MR. GARBUS: I have looked at section 50, and I do


6 object to it, paragraph 50.

7 THE COURT: If you'll pass it back to me, I will see
8 if it's something that's worth taking further discussion. All
9 right. If you don't want it, you don't want it. I think your



10 witnesses basically testified to most of it today.
11 MR. GARBUS: Some of it.
12 THE COURT: That issue is closed. Okay. 130 and 131
13 I do not have.
14 MR. SIMS: We've both been working on this the last



15 few days. The one is for the deposition of Rick Burns that
16 was taken during the trial, if you'll recall, your Honor, and
17 the other is that during the trial deposition of Professor


18 Ramadge, with respect to the demonstration that he did and I

19 think -- I think we can both give your Honor those
20 designations with whatever objections we have in the way we
21 will with respect to any other.


22 THE COURT: Okay. I will take those on the same

23 basis as all the other depositions. I take it that's the end
24 of plaintiffs' case.
25 MR. SIMS: Yes, your Honor. Thank you.


1130

1 THE COURT: Okay. Mr. Atlas, you're up.
2 MR. ATLAS: Do the documents first, and then we'll

3 deal with the deposition afterwards.

4 THE COURT: Do the documents first.

5 MR. ATLAS: It may not be as easygoing as with
6 plaintiffs' exhibits. Where's the box?

7 Well, what I'll present the Court with is a box of

8 documents that we would like to offer on our case. I've got

9 an updated master exhibit list of everything that we had

10 originally designated, and then I have a shortened list of
11 just what we're dealing with now. I don't know whether this

12 many be helpful to you. I'm happy to provide to the Court


13 another inch and a half of paper. You could throw it away if
14 you want.
15 THE COURT: Here we are in a paperless society.

16 MR. ATLAS: This is just what we're dealing with now.


17 That's all that's relevant for today.
18 MR. SIMS: Your Honor, if I might, we were provided
19 with their list, I think, on disk, and we've printed it out

20 and added in the "objection" column all of our objections.


21 I'm glad to go --
22 THE COURT: Why don't we swap.
23 MR. SIMS: Here it is, but unfortunately it's my only

24 copy. Can I get a copy of it? I have it on the machine, but


25 if I give it to you, I won't have it. It was just completed
1131

1 early this morning.
2 MR. ATLAS: I haven't seen it.


3 THE COURT: Well, with all due respect Mr. Sims, I
4 don't think this is really going to help me very much. Are

5 there any exhibits on here you don't object to?
6 MR. SIMS: I believe there are a few that we don't


7 object to, yes.
8 THE COURT: Okay. I see them. They're fairly

9 jumping out at me. Defendants' Exhibit CS is received without
10 objection.
11 (Defendants' Exhibit CS received in evidence)


12 THE COURT: That one I see. Defendants' Exhibit FH

13 is received without objection.
14 (Defendants' Exhibit FH received in evidence)
15 MR. ATLAS: Your Honor, I'm told that we have two


16 more exhibits.
17 THE COURT: Let me just -- does that exhaust the ones

18 that aren't objected to?
19 MR. SIMS: I'm not sure, your Honor. The ones that

20 are in yellow, we've never gotten a copy of. So I haven't

21 been able to formulate that position one way or the other.

22 THE COURT: Well, that does it out of this monster

23 list. Those are the only ones that are no objection.
24 MR. ATLAS: Our task is much easier now. We have two

25 exhibits which are not on that list, and I apologize for the

1132

1 lateness of the list. These were two documents that were
2 shown to Mr. Kenswil. Our position is that they complete the

3 exhibits that he wishes to offer for his deposition, the

4 things that he allegedly relied on. I would ask that these be

5 admitted also to counter those to the extent the Court wishes
6 to deal with those issues. It's Court Exhibit CCR and Exhibit


7 CCS. I'll give a copy to Mr. Sims.
8 THE COURT: You know, frankly, gentlemen, I'm

9 virtually at a loss. I figured there are about 150 exhibits
10 on this page or these pages. There are no descriptions of any


11 of them. Can't you people work this out?
12 MR. SIMS: Your Honor, we tried.

13 MR. ATLAS: Well, we haven't -- I even gotten your
14 objections to the documents. I'm happy to spend a day and try


15 to go through some of this stuff.
16 MR. SIMS: I was hoping to get the list on Saturday

17 morning. I had a lot of people waiting around to work on
18 them. Given when we finally got them, this is the best we


19 could do. We might make some progress if we could spend any
20 time together, but given when we got the lists --

21 MR. ATLAS: You want a hand?
22 THE COURT: Oh, for God sake. Come on, guys.


23 MR. ATLAS: I have two more.
24 THE COURT: You've got Professor Appel's affidavit in

25 here.
1133


1 MR. ATLAS: The declarations are in there. They've
2 been marked.
3 THE COURT: There's all kinds of stuff in here.
4 MR. SIMS: Your Honor, much of what's in that box is



5 stuff that under the rulings you've already made generically
6 shouldn't be there at all, including declarations of various
7 witnesses they've put on the stand.
8 THE COURT: I mean, to quote Judge Ward in another



9 case, "The purpose of evidence is to persuade, not to
10 inundate."
11 All right, look, you people are going to have to try
12 to reach agreement on this or, at least, to narrow down the



13 list in light of rulings that have been made at trial. I'll
14 resolve whatever you can't resolve, but, I mean, my reaction
15 in looking at all this is that it seems like overkill, and



16 that in light of what I've done so far, you ought to be able
17 to resolve these things.
18 MR. ATLAS: I mean, having been the one that went
19 through this weekend all seven of our boxes, I speak from



20 personal experience.
21 THE COURT: You definitely get the purple heart.
22 There's no question about that.
23 MR. ATLAS: What I tried to do --
24 THE COURT: You've got an affidavit in here from



25 Professor Samuelson. I mean, if he's not testifying live, the
1134
1 objection is hearsay. It's sustained, right? Is there any



2 other basis to do this? Right?
3 MR. ATLAS: We'll take the documents back.
4 THE COURT: Okay. Look, I'm not trying to deprive
5 you of any evidence that's probably in here. Just, please,



6 edit first, and really I understand you all have been working
7 very hard. I do. Okay.
8 MR. ATLAS: My wife is very forgiving.
9 THE COURT: Oh, yes, I remember how forgiving my wife



10 used to be. Okay, let's deal with this CCR and CCS. Talk to
11 me, Mr. Atlas, about CCR.
12 MR. ATLAS: The studies that Mr. Kenswil referred to,
13 in such relied upon for his testimony, dealt with how much



14 money the music industry would be losing as a result of the
15 MP3 and the Napster issues. These studies, which were also
16 submitted in the Napster case in California, counter that and

17 show that, in fact, Napster has spurred sales in the music


18 industry. It's the flip side to what Mr. Kenswil was
19 testifying about.
20 THE COURT: Well, is this material that Mr. Kenswil

21 relied on in coming to his opinions, or is this a rebuttal of


22 Mr. Kenswil?
23 MR. ATLAS: I don't believe he relied on it. The
24 argument would be that it is a rebuttal or is more so offered

25 as completeness to the materials that they want in.


1135
1 MR. SIMS: I think under Rule 703, your Honor, that
2 just -- that dog won't hunt.

3 THE COURT: You spent too much time in Texas. Look,


4 I need to understand exactly what I'm dealing with here, Mr.
5 Atlas.
6 MR. ATLAS: These were not documents he relied on.

7 THE COURT: These are not documents he relied on. So


8 why aren't they simply hearsay? They're out-of-court
9 statements by declarants offered for the truth of the

10 statements made, because you claim that the truth of their
11 statements rebuts a witness who testified under oath in his


12 cross-exam.
13 MR. ATLAS: I also disagree with that. The point, I

14 guess, I'm making is that if your Honor is going to consider
15 some of these issues, your Honor is taking the documents Mr.


16 Kenswil relied upon for what they were worth, I would ask that

17 this presents a contrary view that may be useful to the Court
18 if the Court wants to --
19 THE COURT: That isn't the point. There are rules of


20 evidence. Kenswil was deposed, as I understand it, and he was

21 offered for cross-examination. Am I right?
22 MR. SIMS: Absolutely.
23 THE COURT: And he gave an opinion, and he said his


24 opinion was based on certain things. Am I correct?

25 MR. SIMS: Yes.
1136
1 THE COURT: And among the things he said the opinion


2 was based on was materials that the plaintiffs offered in

3 evidence. Am I right, Mr. Atlas?
4 MR. ATLAS: Yes.
5 THE COURT: And they offered those materials upon


6 which he relied, not for the truth of the matters and the
7 materials, but to illustrate the opinions and the basis for
8 the opinion. Am I right so far?
9 MR. ATLAS: I see where you're going.



10 THE COURT: Okay. Objection sustained to CCR and
11 CCS. Okay, anything else? You're going to try to work out
12 the exhibits. What else?
13 MR. ATLAS: We come to the depositions, and I guess



14 over the weekend, I got some letters from Mr. Sims and his
15 team to the effect that certain deposition -- they were going
16 to object to the admission of certain deposition testimony.

17 They refer to certain rulings of the Court, that I was


18 admittedly not here for the entire trial, but it was not my
19 understanding that the Court had made those rulings. But I'll
20 let him speak to the issue.

21 MR. SIMS: Your Honor, I believe you ruled in


22 accordance with what I think is clearly the prevailing law,
23 that to the extent that they called witnesses to the stand,
24 including, for example, the witnesses that were illustrative

25 this morning, after they're done, they just can't move in


1137
1 designations of those people's deposition.
2 And under that ruling, if it is, in fact, to be

3 adhered to, the following designated depositions that they've


4 offered should be excluded. Abelson, Appel -- Abelson is a
5 different category, I'm sorry. I'll get to Abelson in a

6 moment. Appel, who testified this morning. Craig, who
7 testified this morning. DiBona, who testified this morning.


8 Felton, who testified earlier. Einhorn, Pavlovich, Touretzky,

9 Ramadge, leaving aside the supplemental deposition, and
10 Peterson.
11 THE COURT: Now, do you have a reference in the


12 transcript to where you say I made this ruling?
13 MR. SIMS: I don't have a page reference, but I

14 remember precisely there was a witness they called earlier on.
15 I think it was Peterson. I think it was the first expert.


16 MR. HERNSTADT: Felton.
17 MR. SIMS: Professor Felton. And after the cross was

18 done on redirect, they then tried to add in the deposition and
19 declaration.
20 MR. ATLAS: I was here for that. It was the


21 declaration. As I recall, the reason your Honor didn't let it

22 in was it was not within the scope of the -- we tried to get
23 it in on redirect, and what your Honor said was that it wasn't


24 dealt with on cross.
25 THE COURT: Okay. I do remember that now. Now,

1138
1 look, Rule 32 sets out the parameters as to when you can offer


2 a deposition. Now, if I'm understanding Mr. Sims correctly,

3 he is saying that none of the ones he ticked off come within
4 Rule 32. Am I right, Mr. Sims? That's your position?

5 MR. SIMS: Exactly, your Honor.

6 THE COURT: So, Mr. Atlas, what about that?
7 MR. ATLAS: Part of this, I think, was the nature of
8 the trial, was to try and get the witnesses on, to try and be


9 as quick as possible. I had understood that we had permission

10 to put in depositions to cut down on some of the examinations,
11 both on direct and on cross. I think putting in these

12 transcripts will do that. I don't know that it's clearly

13 prohibited by Rule 32, and I think there's also an exception

14 in Rule 32 for exceptional circumstances.
15 THE COURT: Well, what makes this exceptional?

16 MR. ATLAS: In terms of keeping the trial time low

17 and trying to get the witnesses on and off.

18 THE COURT: Look, you guys told me at one point that
19 this was a three- to four-week trial, and I didn't raise any

20 objection to that. I'm glad you wound up sooner, but nobody


21 stopped you from putting in whatever you wanted to put in.
22 Look, if at any point in this trial I indicated that

23 I was going to take deposition testimony of a witness that was

24 not otherwise admissible under Rule 32, for the purpose of

25 economy, I will certainly live by the ruling, but somebody is
1139
1 going to have to show it to me. Otherwise I think Mr. Sims is



2 within his rights. And if you want to think about it
3 overnight and look in the transcript, that's okay.
4 MR. ATLAS: I know --
5 THE COURT: My deputy is trying to tell me something.



6 (Pause)
7 THE COURT: Well, my deputy is saying she thinks she
8 may remember something in the final pretrial conference. I
9 just don't.
10 MR. ATLAS: Yeah, I think --



11 THE COURT: Can we get the transcript? It's the July
12 12th transcript.
13 MR. GARBUS: I believe you said, Mr. Garbus, thank
14 you for the solution. That was my memory. Some solution.



15 THE COURT: Look, obviously what I'm concerned about
16 here is that it would be unfair for you to have offered
17 somebody on direct, put forward a fairly direct and narrow

18 direct, have Mr. Sims do the cross by direct, and then to have


19 him get sandbagged with hundreds of pages of testimony after
20 the fact. If that's what's happened, if that's what's being

21 offered, I'm not going to allow it.
22 MR. SIMS: Your Honor.


23 MR. ATLAS: There's no sandbagging. All of the
24 deposition designations were provided before the trial

25 started.
1140


1 THE COURT: No, I understand that, but it was not
2 meant in a pejorative way. Simply meant to describe surprise

3 borne of the fact that he had a right, perhaps, to rely on the

4 scope of your direct.

5 MR. ATLAS: These were depositions conducted by the
6 plaintiffs.
7 THE COURT: That doesn't matter. They're entitled to
8 take discovery in depositions. While my law clerk is getting



9 that transcript, let's go on to depositions in other
10 categories. Are there any?
11 MR. SIMS: There are a few. Professor Abelson at MIT
12 would be usable -- I guess it is usable under Rule 32. So we



13 don't have any objection to the designated Abelson.
14 THE COURT: Okay. So let's mark it as an exhibit,
15 and it will be Defendant's Number 1?
16 MR. ATLAS: I know we're not dealing with it now, but



17 I have a note that there is one other pieces of business
18 before we finish all this up.
19 Mr. Rollings put together the binders. I believe
20 he's better qualified to go through this.



21 MR. ROLLINGS: Each deposition is indexed as to what
22 would have been designated, what would have been objected to,
23 what has been counterdesignated, and if there are any
24 objections, they're objections to what is indicated. Each



25 transcript sets forth all the designations. And so those are
1141
1 cross-referenced and whose objecting to what.
2 There are three volumes. We had Tab 1 through Tab



3 24. So on each volume there is an index of the exhibit
4 number, which corresponds to each deponent or deposition being
5 offered. It is very self-explanatory if you go through it.

6 THE COURT: So there is an exhibit number attached to


7 each particular deposition.
8 MR. ROLLINGS: Each has an exhibit number on it, and
9 it's indexed at the beginning of each volume.

10 THE COURT: So, Mr. Atlas, what exhibit is Abelson?


11 MR. ROLLINGS: It's Tab 1. So the exhibit --
12 THE COURT: I see. All right. What's the next

13 defendants' exhibit number?
14 MR. ATLAS: Pardon me.


15 THE COURT: What is your next exhibit number?
16 MR. ATLAS: What's the next exhibit number?

17 THE COURT: We don't even need it. The three binders
18 are collectively market Defendants' Exhibit XXX for


19 identification. I'm taking the Abelson's deposition subject

20 to the objections and rulings on the objected parts. What
21 besides Abelson is not objected to?
22 MR. SIMS: Is not objected to?


23 THE COURT: Not objected to.

24 MR. SIMS: There are designated depositions which
25 reflect objections of the following witnesses to which they've
1142



1 offered, and we don't object.
2 THE COURT: Shoot.
3 MR. SIMS: Burns, Schumann, Reider, Fisher, King, and
4 Hunt.
5 THE COURT: All right. I will take those seven



6 deposition designations on the same basis as everything else.
7 MR. ATLAS: We have also Barbara Simons,
8 THE COURT: Pardon me.
9 MR. ATLAS: The depositions of Barbara Simons, who



10 was going to be an expert for our side, but did not testify.
11 Those depositions are designated.
12 THE COURT: They're in the XXX binders.
13 MR. ATLAS: Yes. Bruise Schneier.



14 THE COURT: So that's the next category, right?
15 MR. SIMS: I'm sorry, your Honor.
16 THE COURT: I'm asking, Mr. Atlas.
17 MR. ATLAS: There are several experts that did not



18 come and testify in court. Abelson, Schneier, and Simons were
19 the three experts whose depositions we designated, but who did
20 not come in to testify.
21 THE COURT: Abelson I already took.



22 MR. ATLAS: Correct. Simons and Schneier.
23 THE COURT: Are there objections to Schneier and
24 Simons?
25 MR. SIMS: There is an objection to Simons, your


1143

1 Honor. There is no establishment on the record that he was
2 unavailable.
3 MR. HERNSTADT: I informed the plaintiff that he had


4 informed us that he would not be able to come. He's basically

5 in San Jose and in Minneapolis, and we had put him on the
6 list. At the time of the deposition, they were also aware


7 that we intended to call him, but that he had limitations on
8 his schedule, that he might not be able to make it, and he

9 informed us that he was not able to make it. And I so
10 informed the plaintiffs.


11 THE COURT: Okay, Mr. Sims, what do you have to say?
12 MR. SIMS: What I have to say, your Honor, is that I

13 just checked with my colleagues at the table, and as far as we


14 recall, we were advised last week that they wouldn't be
15 calling him and, we think, for technical reasons, but that's

16 not the same as establishing that he's unavailable.
17 THE COURT: Well, he's more than a hundred miles
18 away, so Rule 32 is satisfied. So your argument is you were
19 told he wasn't going to be offered at all?



20 MR. SIMS: And we had cited to your Honor in an
21 earlier brief a Delaware case establishing that with respect
22 to experts, it's not simply where they are in the country, but


23 they have to establish unavailability.

24 THE COURT: Well, how about that, folks?
25 MR. HERNSTADT: I informed plaintiffs that he was
1144


1 unavailable. They did not say, well, you'll have to establish

2 his unavailability on the record. They accepted my telling
3 him that he wasn't going to be able to make it.

4 MR. SIMS: Your Honor, we haven't even designated the

5 Schneier deposition precisely because we were told he wouldn't

6 be presented, and I sent them a letter to which Mr. Atlas or

7 Mr. Hernstadt referred to last week saying --
8 THE COURT: You can put all this argument on Schneier

9 in two letters, not to exceed two pages, each tomorrow, and

10 I'll simply rule on it. What about Simons?

11 MR. SIMS: It's cumulative, your Honor, but other
12 than that, we don't have an objection.

13 THE COURT: All right. I'm taking Simons on the same

14 basis as the others. What other depositions?

15 MR. SIMS: There is a deposition they're offering of
16 Rick Hirsch, who is a former MPAA employee who lives in

17 Ardley, and I believe that under Rule 32, there is no basis


18 for the introduction of that deposition.
19 THE COURT: Mr. Atlas.
20 MR. HERNSTADT: Rick Hirsch was the head of

21 anti-piracy up until April of this year. When we saw his


22 deposition, the MPAA acted as an interceder and informed us
23 that he lives half the year in LA and half the year in
24 Washington, that he's bicoastal on his job and offered his

25 deposition in California or here.


1145
1 THE COURT: Well, that was months ago.
2 MR. HERNSTADT: That was last month. That was July.

3 MR. SIMS: At the time of his deposition, he moved to


4 New York. He so testified, and he's working for the ISTA
5 downtown.
6 THE COURT: What does his deposition say about where

7 he lives? Presumably you have it right there, Mr. Atlas.


8 MR. ATLAS: I believe he said Rye.
9 THE COURT: Objection sustained. What else?
10 MR. SIMS: Your Honor, they've offered the

11 depositions of Michael Eisner and Jack Valenti. Those we


12 object to on grounds of relevance. Relevance, your Honor.
13 THE COURT: All right. I'm going to take them
14 subject to ruling on that. I mean, you know, I read Valenti,


15 and my general recollection of it is that there's

16 substantially nothing relevant. But I'm not going to simply
17 exclude the whole thing on the basis of that broad
18 recollection. So I'll look at it. If I find anything


19 relevant, I'll rely on it, and if I don't, consider that

20 they're not in.
21 MR. SIMS: Your Honor, that completes, as far as I
22 know, except that I would ask the Court for permission for us


23 to just check the indexes that we've been exchanging with

24 respect to objections, to make certain that the Court's copies
25 have the most updated copies we each have. If I could do that


1146

1 with Anna or --
2 THE COURT: You're welcome to do that. Now, let's
3 come back to that other point about depositions. The


4 discussion at the pretrial conference about depositions was

5 this. Mr. Garbus said that with respect to long depositions
6 of people like Schumann, who would be giving direct, he saw no


7 purpose in repeating on cross lengthy cross-examination that
8 he had done in their depositions, and that he wanted to put

9 the depositions of those witnesses in in order to curtail the
10 length of their cross. And that's at page 41.


11 And I went along with that idea on the following
12 page. Now, whose deposition were we talking about a few

13 minutes ago?
14 MR. GARBUS: It was not one of the plaintiffs'


15 witnesses. It was something else, your Honor.
16 MR. ATLAS: The witnesses that we had called. The

17 experts that we had called and whether we could get our
18 designations in on those witnesses.
19 THE COURT: If there's anything else in the record,
20 please call to it my attention by tomorrow, but this is what I



21 think I remember. So that would imply that I will sustain the
22 Rule 32 objections as to depositions of the people you called
23 live. Okay. Anything else with respect to evidence?

24 MR. ATLAS: There's one other point. I believe


25 during one of the witnesses, we offered and it was accepted
1147

1 the licenses of the DVD-CCA.
2 THE COURT: I believe you are right.


3 MR. ATLAS: And your Honor took it and filed it under
4 seal. I'd like to make a motion to unseal it. As I

5 understand, the copy of a declaration from John Hoy, who I
6 understand runs the DVD-CCA, he filed an affidavit in the


7 California action and attached as an exhibit, I think, a
8 form -- one of the form DVD-CCA licensees.

9 In reading through the documents, I think he had
10 originally filed the affidavit and included the DeCSS code,


11 which was a big brouhaha because he filed in it open court and

12 then that aspect of it was sealed. But as I understand, the
13 license agreement --
14 THE COURT: You place all this reliance on these


15 orders, and every year there is another classic case. I mean,

16 last year it was the SEC producing inadvertently their
17 prosecution memorandum in a civil case. The year before that
18 the

F.B.I. attached some super secret document out in Arizona.

19 So this is this case's version.
20 MR. ATLAS: Anyway, the copy I have is Exhibit A
21 sealed, Exhibit B sealed, and then Exhibit C is the restated


22 DVD-CCA licensing agreement.

23 THE COURT: It looks like a blank form.
24 MR. ATLAS: The point is that -- yeah, it is blank,
25 the exhibit that we have offered, and we've offered all of the


1148

1 interim licenses among the exhibits that we have.
2 THE COURT: You didn't really.
3 MR. ATLAS: I did only because I couldn't read them.


4 I wasn't sure if they were all identical. And if I understand

5 that they're identical, I'll pull them out. I didn't want to
6 take the chance that one said something different, because


7 there was an original, and then there was a restated one and

8 there are points in there.
9 THE COURT: I had a feeling that box was too heavy.
10 MR. HERNSTADT: Just to save Mr. Atlas on this point,


11 it's not all of the licenses. There are over a hundred

12 licenses. It's a selection of licenses for different
13 purposes, for making hardware, for making players, for doing
14 different things. There are 12 different licenses, and it's a



15 selection. Maybe not as limited as it will be tomorrow.
16 THE COURT: All right. Work on it.
17 MR. ATLAS: In any event, I would make a motion to
18 unseal.
19 THE COURT: Write a letter with the other side



20 responding, and I gather that you ought to copy the DVD-CCA
21 lawyers on it.
22 MR. SIMS: They've been asking.
23 MR. ATLAS: Do they have an issue?
24 MR. SIMS: I don't know. I know they sent letters,



25 please, let us know.
1149
1 THE COURT: Okay. Any other evidence to be
2 presented?
3 MR. SIMS: Yes, we do. Your Honor. We would like to



4 ask the Court to draw an adverse inference with respect to the
5 defendant's harddrive in light of the refusal throughout the
6 entire matter to produce any e-mails or letters from it or to



7 comply with the Court's letters with respect to an
8 investigation.
9 THE COURT: I'm not going to hear any argument about
10 this now. I've heard enough discovery in this case enough to



11 last me a lifetime.
12 MR. ATLAS: One other deposition. I'm told the
13 deposition of Mr. Attaway was not addressed a few moments ago.
14 THE COURT: What about Mr. Attaway? Who wants it in?



15 MR. ATLAS: We want it in.
16 MR. HERNSTADT: It was designated and
17 counterdesignated, but it was inadvertently left out of the
18 binder, and Mr. Attaway is one of their --



19 THE COURT: I know who he is.
20 MR. HERNSTADT: Okay. And was a witness on their
21 witness list who didn't testify.
22 MR. ATLAS: We'll provide that to the Court in a



23 letter tomorrow.
24 MR. SIMS: We don't have any problem.
25 THE COURT: That will be XXY. So mark it please.
1150



1 You with me, folks? XXY, Attaway's deposition designations.
2 Any other evidence? Going once. Going twice. Closed. All
3 right.
4 Does anybody want any closing argument in this case?



5 MR. GARBUS: I think we were talking about submitting
6 briefs certainly. I think, perhaps, after the briefs are in,
7 you might want to do that. I don't know what your Honor's



8 schedule is. I don't feel any real need for it now. Your
9 Honor had posed questions to us at the very beginning, and it
10 may be that we will resolve those issues.
11 There were four questions. I don't have them in



12 front of me. I think I would like to make after the briefs
13 come in a closing argument, but that depends on your
14 scheduling.
15 THE COURT: Well, my own disposition really is that I



16 think I would rather hear the closing sooner rather than
17 later, because we're almost familiar with the record now, if
18 there's to be a closing argument.
19 MR. GARBUS: Your Honor, can I think on it and get



20 back to you as to, at least, the necessity?
21 THE COURT: Yes. And my thought was to do it later
22 this week. Now, as far as briefs are concerned, with the
23 exception of three points that are bothering me in particular,



24 I will, within limits -- assuming we can get the proper time
25 frame -- leave the question of putting briefs in up to you.
1151


1 We had mentioned two and possibly three of these

2 issues during the course of the trial. One is what, if
3 anything, I were to do about an injunction here if I conclude
4 that this horse is out of the barn already. Something tells


5 me there's ancient equitable maxim that I haven't been able to

6 find this week to the effect that courts will not issue
7 injunctions where to do so would be entirely futile. I think


8 we've talked about that.
9 Secondly, I'm sure we talked about Summers v. Tise

10 and its implications here. And thirdly is whether and to what
11 extent I properly may conclude from the evidence that's in the


12 record that decoded DVD movies actually are available either

13 over or through the internet. That's essentially an
14 evidentiary question.
15 Now, beyond addressing those three questions, does


16 anyone want to file a brief in this case?

17 MR. GARBUS: I think we would like to file a brief
18 with respect to a pulling together of the legal arguments. I
19 think that we have -- our last brief, I think, was a reply


20 brief I mentioned, June 14th, where we made speculations about

21 what we thought the evidence and the law would be. Since
22 then, we've taken discovery and gone through this trial. I'd


23 like to prepare a document that I think represents that.
24 I know your Honor doesn't want to delay it too much.

25 I don't know -- I think I'd like to have a chance to go


1152
1 through the facts and go through the briefs and go through the

2 law, but I'm sensitive to your Honor's scheduling.
3 THE COURT: Mr. Gold, what's your pleasure?
4 MR. GOLD: Well, your Honor, but for the three issues
5 your Honor has just described -- and when I think of the



6 briefs on both sides, I think there has been an awful lot
7 submitted to you and more than once on the remaining issues.
8 So if we touch on them, it will be touching on them

9 very briefly indeed, but these three issues, of course, we


10 would like to brief.
11 THE COURT: All right. Well, suit yourself. We'll
12 have a simultaneous exchange. This is July 25th. Can you get

13 them for me by August 4th?

14 MR. SIMS: Yes, sir.

15 MR. ATLAS: Would it be possible to get --
16 MR. GARBUS: I think some of us -- is August 15th
17 good for you?
18 THE COURT: Well, it isn't as good. It isn't as



19 good. If you want more time, I'll give it to you.
20 MR. GARBUS: Yeah. I think that our position,
21 frankly, is that we've just absorbed the discovery. We've
22 absorbed the material at trial, and we would like to put



23 together a document which we think is coherent and puts
24 everything together. Normally, I would ask for a good deal of
25 time to do that. I understand the Court's scheduling, but I


1153

1 do feel that we should put together -- there have been some
2 questions about whether we raised certain issues, whether we
3 didn't raise certain issues. I think be would like to have an



4 opportunity to put our case together coherently.
5 THE COURT: Mr. Gold, what were you about to say?
6 MR. GOLD: Well, on the August 4th simultaneous
7 exchange sounds wonderful to me, unless your Honor would make



8 it August 3rd. I believe that the shorter it is, the more
9 focused these briefs will be and the more helpful they'll be
10 to the Court, and the longer the time, the much longer the


11 briefs are likely to be.

12 THE COURT: We're going to cut the baby in half.
13 We're going to make it August 8th. And a 35-page limit. And
14 let me give you a little guidance.


15 I haven't really had a chance during the course of

16 the last week to go back over the opinion in January in light
17 of the evidence at trial. Obviously, there was no record


18 before me in January. There was nothing from the defense at
19 all, and there was very little from the plaintiffs compared to

20 what's there now.
21 But my tentative sense, from having listened this


22 week and last with a lot of care, is that probably nothing
23 much has changed with respect to the analysis of the DMCA

24 itself. I may be wrong in that, but that's my gut reaction

25 here.

1154
1 I think one thing probably has changed with respect

2 to the constitutional analysis, and that is that subject to


3 thinking about it some more, I really find what Professor
4 Touretzky had to say today extremely persuasive and
5 educational about computer code.

6 Now, of course, which way that cuts is another


7 matter, but I just don't think it's likely ultimately to prove
8 tenable to say that computer code of any kind has no
9 expressive content, source or object. Which then gets you to



10 the question of how then do you deal with it under the First
11 Amendment. I found myself wondering and I'm thinking out loud
12 here, because I really want both sides to understand where my


13 mind is going on this, because then they're going to focus
14 more closely on what concerns me.
15 I'm really in doubt as to whether saying that
16 computer code is constitutionally protected speech goes very



17 far toward answering the questions in this case.
18 In the past, the Supreme Court has dealt with
19 questions involving the regulation of expression essentially
20 by fitting the particular kind of expression into various



21 pigeon holes, fighting words, obscenity, conduct as contrasted
22 with speech, commercial speech, and they've developed over the
23 years various kinds of definitions that to one degree or



24 another separate those different categories.
25 I'm really not sure that paradigm fits this case. Or
1155
1 if it does, where exactly -- which is the right pigeon hole



2 for this case. I reread the draft card burning case over the
3 lunch hour, and the Supreme Court there said that although the
4 burning of the draft card was obviously intended as
5 expression, the government had the right to prohibit it, to



6 criminalize it because of the governmental interest in running
7 the draft. I remember what I thought about that in 1968. Not
8 that I'm telling anybody.
9 The speech conduct distinction they draw in that



10 case, I think, one fairly can say is one that is debatable,
11 and they put the expressive draft card burning purely into the
12 conduct box, so that it could be regulated even though it was


13 obviously expressive. There's some kind of analogy here. So

14 I share those views. They're very unformed. They're very
15 tentative. But I guess what I'm intending to communicate by


16 this is that rhetoric is not really likely to cut it very

17 much. I'm really very interested in the guts of this, and for
18 what it's worth, there you have it.
19 Okay. Anything else? I do think it appropriate to
20 thank all counsel because I know what a huge personal effort



21 getting ready has been. Nobody should think that I was ever
22 unmindful of that, and I appreciate that for everybody.
23 Okay, our business is concluded. I'll hear from you


24 on these other odds and ends of documents from you tomorrow.

25 Now, to whatever extent I don't have the exhibits, I need
1156
1 them.


2 MR. GOLD: Thank you, very much.
3 MR. ATLAS: Thank you, your Honor.

4 THE COURT: Thank you, folks.
5 o0o
6
7
8

9

10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
1157
1
2 INDEX OF EXAMINATION
3 Witness D X RD RX
4 CHRIS DI BONA............987 1026 1033



5 MICHAEL EINHORN.........1034 1048 1057
6 DAVID TOURETZKY.........1061 1110
7 PLAINTIFF EXHIBITS
8 Exhibit No. Received



9 1, 4, 28, 51-55, 64, 69, 72, 79, 126 and 129 1118
10 2.1 through 2.34 and 3.1 through 3.34 ......1119
11 77 and 93 ..................................1123
12 98 .........................................1128



13 DEFENDANT EXHIBITS
14 Exhibit No. Received
15 BDT ........................................1026
16 CCN, CCO, CCP, and CCQ ....................1080



17 BBE ........................................1092
18 CS .........................................1131
19 FH .........................................1131
20
21
22
23

24


25

Information liquefies, and joins with reality.
This is where things like '"rationality"' (triple quotes, we're double-bagging it so we don't have to touch it at ALL) and '''justice''' totally break down.

So I have to live without those things, if they only mean that I end up having to force them on others.

--

7:26 PM me: sup
bolt done
sleeve okay
have replacement
7:27 PM just waiting for parts to come
C_____: word up!
me: then I'll throw the remainder in a box and ship it to you to pick up when I get back
we can add jones' crapped parts to the pile I'm sure
with the sum we might just need to get a motor, frame, and wheels from a junkyard
7:28 PM and then we have the zombie bike
warning: do not ride. may explode.
C_____: lol
im down
7:29 PM me: sweet
I'm gonna show this neighbor harley guy how to change his fucking oil by himself before I leave, too, maybe
:P
7:30 PM C_____: lol
you
show people how to be a mechanic
now i have seen every thing ;)
me: dude, I can change oil on a bike
your mom could change oil on a bike
C_____: lol
me: hell, she changed my oil last time I was in town, and I'm not even a motorcycle.
C_____: try again
me: ;)I might, haven't gotten a good lube job since then
7:31 PM C_____: ha
no i mean with the joke ya tool
me: hehehe
got my lollerskates on, fool
C_____: lol
7:32 PM lawls
7:33 PM me: so how's j_____? and his bike
C_____: his bike, well it isent at my house yet
me: oh
7:37 PM C_____: havnt heard from him in awhile
me: well, unless he's totally dead
7:38 PM I get free long distance from here, I'll call him.
C_____: ahh
7:42 PM me: got his dad
got a lecture
got the story
C_____: lol
me: you guys are pissing me off always putting your attitude on me about crashing
7:43 PM but first the story
jones has his pick line out
and he's working 3 days a week
shrug
didn't get his cell phone to pick up
C_____: ahh thats good
that line freaks me out
me: hehe
7:44 PM so, whatever, I guess you can get a hold of him
7:45 PM his dad was like, "I thought when you left you seemed like you knew what you were doing"
7:46 PM he confused all-encompassing, forgiving empathy for assured confidence
hahaha
sometimes I wonder how crazy these old guys really were as kids, if this gets a rise outta them
you're gonna be just the same when you get old
7:47 PM yelling at somebody just like me
C_____: lol
me: because I might not be alive, or under an assumed name in some other country :P
7:48 PM so there'll be no one around to tell that young crazy fuck how to get back out of trouble
and things will continue more or less recursively.

--
Somebody I'd sell every last molecule in my body for, until there was nothing left.

Things that exist in a vacuum.

People with incomplete personalities.

Every time the sun goes down, I miss it.
--

The open-border policy under Prime Minister José Luis Zapatero is driving a Spanish economic and social revival

by Carol Matlack

Imagine what would happen if a prosperous Western nation threw open its borders, allowing immigrants to flood in virtually unchecked. Soaring unemployment, overstretched social services, rising crime, even rioting in the streets? Not in Spain.

Over the past decade, the traditionally homogeneous country has become a sort of open-door laboratory on immigration. Spain has absorbed more than 3 million foreigners from places as diverse as Romania, Morocco, and South America. More than 11% of the country's 44 million residents are now foreign-born, one of the highest proportions in Europe. With hundreds of thousands more arriving each year, Spain could soon match the U.S. rate of 12.9%.

And it doesn't seem to have hurt much. Spain is Europe's best-performing major economy, with growth averaging 3.1% over the past five years. Since 2002, the country has created half the new jobs in the euro zone. Unemployment has plummeted from more than 20% in the 1990s to 8.6%, within shooting distance of the 7.2% euro zone average. The government attributes more than half this stellar performance to immigration. "We are very thankful for all these people who have come here to work with us," says Javier Vallés, economic policy chief for Prime Minister José Luis Zapatero.
Many Benefits

If anything, the worry is that Spain is a bubble waiting to burst. Construction, which accounts for 18% of the economy and is a major employer of immigrants, is slowing noticeably after a decade-long boom. A steep decline could trigger social conflict, which so far has been minimal—perhaps because about three-fourths of immigrants come from Latin American and European countries with languages and cultures similar to Spain's.

For now, Spain is keeping the welcome mat out. Besides providing muscle for construction, immigrants care for children and the elderly, allowing more Spanish women to take jobs outside the home. They do backbreaking agricultural labor and take minimum-wage positions in restaurants and hotels. "Spanish workers don't want these jobs," says Marta Martín, who has recruited immigrant employees for the Madrid-based hotel chain NH Hoteles. And the government says immigrants' tax and social security contributions exceed by more than 20% the cost of the public services they use.

Immigrants are weaving vitality into Spanish society, too. Stroll through Tetuán, a vibrant multiethnic neighborhood in north-central Madrid, and you'll find an Ecuadoran bakery, a Moroccan furniture shop, and an everything-for-€1 store called Los Chinos because its owners are Chinese. On Calle Bravo Murillo, Tetuán's main drag, mobile-phone stores and bank branches beckon with discounts on international calls and wire transfers.
A Model for Globalization

"They understand now that we are a good market for them," Ecuadoran immigrant Mercedes Factos says over lunch at San Francisco de Quito, a Tetuán café that serves Ecuadoran specialties such as fried yucca and toasted corn. Like many immigrant women, Factos arrived on her own and found a job as a domestic worker, sharing a room with a cousin until she saved enough to get her own apartment and send for her child.

Could Spain be a model for invigorating aging, slow-growth societies in Western Europe and elsewhere? Many economists say yes. "If you make your labor market more open and flexible, in a world where populations are more mobile and economies are globalizing, you attract people who want to work," says Eric Chaney, chief economist for Europe at Morgan Stanley (MS) in London.

Yet in much of the developed world, immigration is seen as a threat. Anti-immigrant politicians have gained strength even in tolerant nations such as Denmark and the Netherlands. Nicolas Sarkozy, elected President of France on May 6, ran on a platform calling for stricter border controls. A recent poll by Harris Interactive shows that only 19% of British and French think immigration is helping their countries, vs. 42% of Spaniards.
New Demand for Workers

Certainly, Spain has some anxieties about immigration. A deadly 2004 train bombing in Madrid, blamed on a Moroccan-led terrorist group, underscored the risk of Islamic extremism, although there have been no major attacks since then. More recently, Spaniards have been alarmed by news reports showing African boat people trying to reach Spain's Canary Islands. And there have been scattered incidents of anti-immigrant violence.

Compared to its neighbors, though, Spain has had special reasons to welcome outsiders. As recently as the mid-1990s it was an economic backwater with an aging population and per-capita income only 80% of the EU average, vs. 96% now. But lower interest rates and a healthy dose of aid from Brussels sparked a demand for labor.

To fill jobs, Spain looked abroad. Immigration rose from 57,000 in 1998 to more than 600,000 for each of the past two years. The biggest influx, about 800,000 since the mid-1990s, came from Ecuador, followed by Morocco and Romania. Spain, unlike France and Germany, places no restrictions on immigration from the EU's new members in the old Soviet Bloc (see BusinessWeek.com, 5/1/07, "Germany to Keep Immigrant Labor Limits").

Many from other countries arrived under the radar: An estimated 25% to 35% of the current immigrant population is undocumented. But Spain has been generous with amnesty, granting legal status since 2000 to more than 1 million who could prove that they were employed.
Getting Ahead

Many found work in the booming construction sector. Across the suburbs of Madrid, armies of hard-hatted workers speaking a babel of languages are building row upon row of apartment high-rises on freshly bulldozed hillsides. "If you work well, you always have work," says Constantin Nitu, a Romanian who arrived in Spain in 1999 to work as a day laborer and now runs his own small construction business which employs other Romanian immigrants.

Now budding entrepreneurs are branching out into other sectors. Take Luminita Tecu, who runs a thriving bakery in the Madrid suburb of Coslada where she sells poppy seed pastries and other specialties of her native Romania. Trained as a nurse, she arrived in Spain in 1997 with little more than a suitcase, and took a job caring for an elderly Spanish woman while her husband did construction work.

By 2001, they had saved and borrowed enough from friends to open the bakery. When they wanted to expand the business two years ago, they easily got a $55,000 loan from a local bank. "At first my idea was to stay here for a year, earn money, and go back, but now I know I won't leave," she says. "I work hard, but my life is like a fairy tale."

Matlack is BusinessWeek's Paris bureau chief.

With Joan Tarzian in Madrid

--
www.googlefight.com
Fernando Alonso vs. Michael Schumacher

Lo siento, lo siento, lo siento.
One of the few phrases I've never forgotten.
Gotta tell you,
I miss you.

I know that piece by piece, I get better.
Piece by piece, it gets better.

Things are going well.

But I can't go much longer without talking to you, for real. Not just putting all of this in a time capsule that opens when you say it does.

Everything is morale.
But, morale is everything.
I can't tell you how much more I can carry when I'm excited. How much faster I can think. How much harder my heart can work.

The happy ending creates itself. The sad ending creates itself.
This is something that you won't learn from movies.

These are the things that are in my head, that rush by as it travels its path, just as features of the land arrive from the horizon, pick up speed, and blur by when they get too close on my bike.

What I'm saying is that here is where I am. I miss you, and I love you.
And I don't expect anything in return.

But I want more than anything to share time with you. I do believe you kindly give that freely.

Don't worry, I won't tell anyone about that. I know it would ruin your reputation.

Love, joy, and admiration,
and a lot more,
-T.

eyecontact

the appreciation of a gift