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The time is just about 8 o'clock.
Time once again for Off The Hook.
Time once again for Off The Hook.
Good evening to everybody.
The program is Off The Hook.
Emmanuel Goldstein here with you for the next hour or so, and boy, what an exciting time
it's been over the past couple of weeks.
The trial ended today.
That's right.
The trial is over.
The ECSS case, which you've probably read about or heard about in some form, even if
you didn't listen to this radio program, and if you've listened to this radio program,
you've certainly heard about it, and I probably don't have to go into all the details to what
it's all about, but suffice to say, it all came to an end today.
We don't have a verdict.
This trial does not work quite that way, but basically, we won't be going into court anymore
and arguing at each other.
We'll be waiting now to file some additional briefs and waiting for the judge to come back
with a decision, looking at probably mid-August or so for that to finally end.
The transcript for today's session will be up in a matter of hours, I hope.
As soon as we get it, it'll be posted, and now we basically move into another phase of
this where we look back on what we've talked about, what we've brought up, and hope that
it did some good.
Today, I understand, was a really good day.
I missed the first part of it, but we had some incredible testimony.
We have Patrick from Radio EFF and Robin from the EFF Legal Defense Team here in the studio.
Welcome to the show, folks.
Thank you.
Hello.
Now, today we had an incredible witness.
This morning, we had an incredible witness, Professor Turetsky from Carnegie Mellon University,
who flew his own airplane over here to be here today.
That's kind of dedication our witnesses show.
One thing we learned from last week is that their witnesses, the MPAA's witnesses, get
paid $30,000 just to be on the stand and say what they're told to say, but our witnesses
fly their own airplanes and don't get a penny out of it.
Take vacation time.
Take vacation time, and they basically are that into it, into telling their side.
What did Professor Turetsky say today?
Well, what Professor Turetsky said that was so compelling was he really helped the court
and Judge Kaplan in particular to understand the expressive and the truly creative nature
of computer code.
Previously in the judge's rulings, he had had this idea that computer code was only
minimally expressive, particularly object code, and Professor Turetsky has on his website
a what he calls a gallery of DCSS scramblers where he essentially takes the DCSS computer
code and displays it in a variety of different languages, English, C, binary, object code,
all sorts of different kinds of languages, and really walked the judge through with helping
the judge to understand how it is that this is communicating an idea from one person to
another and particularly for computer scientists that this is the way that they communicate,
that they communicate best and most precisely, and if this judge were to enjoin or to ban
his speech, essentially his ability to convey this information to his peers, the chilling
effect that that would have on speech and scientific research in particular on the internet.
And also I think he also made a very compelling argument in terms of the speech, code is speech,
and I think you could see it go into Judge Kaplan's eyes and you could see him ruminating
and he was pacing back and forth and was very contemplative and was very excited about these
concepts and I think he really kind of saw the case in a new light.
He actually got up and paced back and forth.
There's not much pace up there.
It's true, it's true, he was standing up there just, you know, his hand on his chin just
thinking and going over things and you could see.
I gotta say, you know, after being there almost every day since last week, I'm very impressed.
I think this guy is trying to learn as much as he possibly can about the technology, about
how it works, all the nuances, and I just, I sense that he wanted to listen to what people
said.
And I was up there, actually, it's a pretty scary thing, but I wound up testifying Thursday
afternoon and Friday morning and it is pretty intimidating being up there right next to
the judge.
Actually, it's not as intimidating as I thought, but getting up there, actually right before
you go up, that's the scary part.
I only got admonished once and I figured it would be a lot more than that, but it was,
you know, he seemed interested in hearing everyone's side, what we had to say, our take
on the technology and how it all works.
And I think we got it out.
I mean, I think we did the best we could.
We got some really, really good witnesses.
We did.
Between Jan Johansson, the teenager from Norway who created this code, and Matt Pavlovich,
who is the project leader of the LIVIG project and has actually used this code to create
a competing DVD player for the open source Linux market, and then, of course, today with
Professor Turetsky's testimony, I think it was really a mind bomb for the court.
Absolutely.
And also the people in the stands, I was really impressed with the number of people who showed
up from the community, from the Linux community, from the hacker community, open source community,
the BAI community, just so many people that came to see and watch and witness this.
And I know that that made an impression.
I mean, all the court security people wound up talking to a lot of the kids in the audience,
asking questions about how the computers work and things like that.
And I think it's a very rare thing when you see this kind of an interest in a case.
And I really think that that got a very positive spin out, that these people actually were
interested enough to come down and spend all this time.
We had people coming from the HOPE conference last weekend who, instead of spending time
having fun wandering around New York City, spending eight hours in the courtroom.
It really means something.
Yeah, it's interesting you should say that.
One of the comments that the bailiff made was how this was the first case that he'd
witnessed where young people were so interested in particular, where it was teenagers and
folks in their early 20s who were at this, who attended the trial and who cared passionately
about the issues.
And that was something that he hasn't seen in a long, long time, was an issue and a case
to really energize the youth in this country.
That's right.
Our legal team is having a party right now.
I don't know if they're on the phone.
Are they?
We were on the phone before.
Is anybody there?
Yeah, this is Dave Turetsky.
Dave Turetsky.
Now, you're the hero of the day.
You're from Carnegie Mellon University.
You flew your airplane out to New York today and gave some dynamite testimony.
Could you maybe just sort of give us a mini replay of the things you said to the judge
and what you think really had an effect?
What I argued was that all these different forms of the descrambler, the C version, the
version in English, the version in another computer language that I'd made up, that they
were all equivalent.
And so when the judge decided to ban the C source code and said he would not ban discussion
of the algorithm, that it didn't make sense to do that because they were all equivalent.
And so the judge took that remark.
He said, well, what you're saying then is that my injunction was too narrow.
And I agreed with him.
Yeah, it's too narrow to give the plaintiffs the kind of protection that they want, that
they say they need.
So if you really want to protect the plaintiff's interests, you're going to have to ban all
these things, including mere discussion in English of the algorithm.
And I think it's pretty obvious that you can't do that.
It raises real First Amendment problems.
Precisely.
And he actually understood your point.
Yeah, he did seem to get the argument.
I was very gratified that the point got across.
Now this, I don't believe there was any cross-examination of you.
No, and I was surprised that during my testimony I could see the plaintiff's counsel, Mr. Mervis,
was smiling.
And I wasn't sure if that's because he liked what I was saying or if he had something in
store for me.
So I was a little worried about that.
But in the end, he decided not to cross-examine, so I guess he just liked the testimony.
Very interesting.
Now, tell us something about your background.
I'm a computer scientist.
I currently do research in computational neuroscience.
I've been programming computers since I was 12 years old, and I spend a lot of time with
computers these days and with rats.
I'm sorry, could you say that last part again?
I study the brains of rats.
Ah.
I spend a lot of time.
That wasn't a lawyer joke.
I really do work with rats.
Was that point brought up in court today?
Wow.
Well, now, I can't tell you how much we appreciate you taking time to come out and express yourself
like this.
And it really did make a difference.
From all reports, and I really regret that I woke up too late to see the testimony myself,
but from all reports, this was what really did it.
This kind of put a different spin on the whole case.
Could you see that in the judge's reaction as to what you were saying?
Yeah, he did seem very interested in the testimony, and then what really surprised me was at the
end of the day when he was wrapping up, he said that most of this case hadn't really
changed his opinion from January about the issues, but the one exception was my testimony
about the nature of computer code.
And it was just tremendously gratifying that the court took notice of this testimony and
seemed to be persuaded by it.
So my whole experience working with the Garbus firm and with EFF has been terrific for me.
It's been a great privilege to be part of this.
All right, Professor Turetsky, thanks so much for taking time.
Who else is there with you?
Oh, the whole team is here, Ed Hernstadt and Olin Craig and let's see, Josh and Matt Pavlovich.
Who would you like to speak to?
If you want to pass the phone to anybody who wants to talk to us, and of course everybody
in the tri-state area and over the internet, and be careful with that cordless phone because
if you go out of range, you'll get funny noises.
Okay, man, it's Ed Hernstadt talking.
Ed Hernstadt, how are you?
I'm just fine.
Actually, I wanted to give you one report since you weren't in the courtroom.
There was a time, there was a particular moment during Dave Turetsky's testimony where you
could see the judge suddenly got it, where Dave was taking him through the same little
bit of code in C, in assembly, in binary, and then in disassembled binary, and he took
a single command in each of the different languages, or each of the different implementations
of the same bit of expressive speech, and walked the judge through each different place
and showed him, if you look in the disassembled binary, here's the command.
The command was compare.
And then if you look in the binary, here it is.
And if you look in the assembly language, here it is.
And if you look at the C, here it is.
And you could just see that suddenly the judge, he stood up, and you could see he suddenly
went, oh my God, I get this.
I can read object code.
It's saying the same thing in each one of these.
It's expressing the same command in each different version.
And that really seemed to be a turning point.
Now to you, what's the significance of him realizing that he can read a single command
in many different languages?
Well, the judge also made that clear at the end of the day when he said, these are some
of the things I want the lawyers to think about when they're doing their brief, which
is the First Amendment, which he had given rather short shrift to in his deliberate injunction
opinion, is now much more in the forefront.
He is taking seriously, very seriously, the argument that we've been making for many months
now, that you can't distinguish between source and object, that code, computer programs are
expressive speech, and that you can't break it into different types of expressive speech
and give protection to source code but not to object code.
And so he's going to look at the program, the DCSS program, much more holistically.
And he's going to treat it as something that may very well enjoy First Amendment protection.
That's a big move.
So in one day, on the very last day, we were able to demonstrate that this is in fact about
freedom of speech.
Yeah.
I think we, all through the course of putting our case up with a lot of extremely well-qualified
and talented experts, people like Dave Tversky and Ollie Craig and Matt Pavlich who are here,
and also Professor Ed Felton from Princeton and Andrew Pell and Larry Peterson, there's
a whole array of very smart, very articulate people coming forward with no pay, in contrast
to the experts presented by the other side, and making very important points.
I don't think that those points registered until Dave Tversky sort of broke through whatever
mindset or broke through the ideas that the judge had sort of brought to the table.
And now that that's happened, I think he's going to look at some of the other points
that were made throughout the course of our case.
How do you think he was able to just break through, though, just by giving the example
of the source code and the object code?
Was that what did it?
I think it's because Dave's CSSD Scrambler Gallery, which I think everybody should go
and look at, is just such a clear and sort of striking example of why you can't distinguish
between different implementations in different languages of the same expressive idea.
And I think the judge needed to see it and needed to walk through it instead of just
hearing people talk about it.
And I guess that's something that you see in courtrooms more often, is people talking
about this particular argument or this particular opinion.
What Dave did was he mapped it out, he put it into a gallery with pictures, with different
versions of the same, of the CSS de-scramble program, including one on the back of a T-shirt,
one that was embedded in a bumper sticker, or a screensaver, you know, C, all kinds of
different versions.
And that was something that piqued the judge's interest.
But then what he did is he had done another paper saying that the source code and object
code dichotomy is a false dichotomy.
And as a dependence to that, he did just eight lines of code in C, in assembly, in binary,
and disassembled binary.
And that was the thing that made the difference.
It was very, very tangible.
He made it something that you could wrap your hands around, you could wrap your mind around,
you could really, really guess.
Wow.
Do you think we'll have that available to put online somehow?
I'm quite sure we will.
Okay.
That would be great.
If you want us to, I think we could arrange it.
Okay.
That sounds pretty good.
Let me give you real quick the URL for Dave Teresky's DCSS gallery.
Yes, please.
www.cs.cmu.edu slash tilde DST slash DCSS slash gallery.
Okay.
Great.
That's well worth visiting.
Ed Herrnstein, now give us some ideas, some of the other highlights of this trial.
We started last Monday and ended today.
What stands out in your mind as the milestones?
Well, today was a big day.
I think that there are a number of highlights.
We started with the first witness we put on out of turn was Frank Stevenson, who was in
from Norway.
He talked about his cryptanalysis of the CSS cipher.
They tried to bang him around, but Frank is a very articulate and obviously very smart
guy.
He was very honest.
I think he made an impression on the judge, so he was a very good witness to start with.
Then, of course, the big thing after that was John Johansson.
This was the words of truth from a horse's mouth, not to say that John is anything other
than a very, very nice guy.
The media went crazy over that.
He was a 16-year-old kid from Norway, and Hollywood is in fear of him.
They went nuts over that, in a good way, I think.
Yeah, well, yeah.
He was incredibly self-possessed.
For a young guy who had undergone fairly traumatic stuff, his father was arrested, his computers
were seized, he was dragged in front of the prosecutor in Norway because of complaints
filed by the MPAA, his testimony, his demeanor was remarkably mature.
He told the story, and it was the story that we've been telling to the judge for the last
six months.
The judge, I think, had not given a lot of credence to, because it was hearsay.
It was what people said, other people said, other people said.
Here we had John Johansson come into court and say, yeah, with the help of a couple of
other people, I wrote this program.
I gave it the name, DCSS.
I did it as part of a project to make a DVD player for the Linux operating system.
That was that.
That was a very dramatic moment, I think.
Yeah.
I think John and also his father emerged as real heroes in this whole thing, because I
wasn't aware, they were both in the studio last week, I wasn't aware of his father's
history as well.
He had been, I believe, smuggling things out of Poland to the West and battling the Iron
Curtain and all that kind of thing.
Is that right?
Yeah.
He was fighting communism.
Yeah.
He was tortured.
He really understands the importance of standing up to bad things.
I remember at one point he thought the only threat to the world was communism, and now
it's all changed, because look at the threat we're facing right now.
That really made me think when I heard those words.
Yeah.
Matt, I mean, John also introduced a note of irony that I think underlies this whole
case, but he made it explicit when he told the court and everybody else in the courtroom
that as a result of his having done the DCSS program, not only was he dragged in front
of a Norwegian prosecutor, but he won a prize, the Caroline Prize, which is given out to
one high school student in the entire country for excellence in school.
You have to have superb grades, but also for doing something really extraordinary outside
of school.
And the thing that he did outside of school that was extraordinary was make DCSS.
And then he took the money that he won, along with the prize, and used it to buy a DVD player.
Unbelievable.
Yeah.
That, I think, rocked the plaintiffs a little bit.
Yeah.
I sensed a lot of frustration coming from the plaintiff's corner there, just watching
them question people.
They were all over the place.
They couldn't seem to focus on just what it is, what their form of attack was.
They would try to tear down a witness in one way or another by pointing to a minor
clerical error.
Did you mean to put a comma there next to your declaration or whatever?
And that was the best they could get.
They really couldn't focus on something material to the case.
Did you sense that as well?
Yeah.
I think that's right.
I think our witnesses were all very articulate, and they had really great stories to tell.
In fact, I should put you on with one of the star witnesses.
Yes, please.
Matt Pavlovich, who's the guy who's the project leader and driving forth the development of
a DVD player for the Linux operating system.
Yes.
Let's hear from Matt Pavlovich.
Hey, Manny.
Hey, Matt.
How are you doing?
Pretty good.
Pretty good.
Well, we really appreciate you coming all the way out from, what is it, Texas?
Yeah.
I had a flight from Dallas, Texas.
I got a call at about 5 o'clock on Thursday.
It said that if I didn't get up on time, they were going to fire me.
So I caught the last plane out of Dallas at 7 o'clock, and we testified on Friday.
Wow.
Yeah.
Now, compare that to their side, right, where they have these witnesses that get paid, what
was it, $30,000 is what the guy said he was making from this case alone, just for coming
and being on the stand.
I mean, you know, it's like day and night.
I don't even understand how somebody can be paid to testify, you know, allegedly to the
truth.
I mean, if he says something completely different, does he still get paid, you know?
How does that work?
I don't understand, and I think it's just a great honor that we get to work with witnesses
that we have that, you know, every time they get up there, our lawyers would ask us, oh,
by the way, are you being paid for this?
And they'll answer, no, I'm here because I care.
Yeah.
And it's also another reason why we had difficulty getting people to show up at exactly the right
time, because as Ed said, I believe last week, we don't control our witnesses, and I think
that was a very good thing to say, because obviously they do control their witnesses,
and are they really witnesses if they're controlled so tightly?
But, Matt, tell us something about your testimony.
What kinds of things did they hit you with?
We went into and talked about Linux and open source development and how the projects work,
how they all intercollide, and what went on with the Linux video and DVD project.
And, you know, I gave them the firsthand account of what we did, why we needed the encryption,
and what all goes into that, and why it was important to us.
And you think that your message was heard?
Yeah.
I mean, I think they heard it, their cross-examination.
They asked a few questions here and there, but I definitely think that, you know,
after Dave's testimony today, that the judge will definitely go back and look at all the other
testimonies from all the witnesses and, you know, definitely get a different impression
than perhaps he did when he first heard it.
Yeah.
I certainly hope so.
I don't think we could have done a better job of presenting our side with the people that we had,
with the documents.
People from all over the world came to testify and witness, and, you know, that does make a difference.
It really does, especially, you know, the people in the stands watching.
You know, that does have an effect, and I sense that.
You know, when I was up there myself and I saw people coming in, you know, to watch,
it really does have an effect.
And I don't think, you know, the other side really had anybody coming in to watch that wasn't being paid.
You know?
I mean, do you guys think there was anybody there that wasn't a lawyer or a paid witness?
No.
I'm sure of it.
That's got to tell you something, you know?
What are we battling here?
We're battling, you know, it's like the face of evil.
You know, these people are, it's like Batman's, you know, the evil building in whatever city that is.
So it's, you know, to me it's black and white.
I hope it's as black and white to the judge, and I'm pretty sure it's as black and white to the people who are following the case.
I've heard this referred to so many times.
I've turned on this radio station several times in the middle of a discussion about this, which is pretty weird.
I was watching CNN the other day, and it suddenly came on.
Of course, when you watch the corporate-run media, Time, Warner, CNN, they talk about it as if it's video piracy.
They say that I'm accused of pirating videos, which, you know, is interesting because I've never, you know, even had a DVD in my life.
So it's very hard to pirate them if you don't even have them.
Did you sense, like, similar media distortion, Matt?
Yeah.
I think one of the best questions we got out was when they asked me if I ever watched any other DVD I didn't pay for.
My answer was only the ones I rented.
Yeah, that was a good answer.
That was a very good answer.
I got a point across, you know, to the judge.
It's kind of, you know, we talk about how there was never an intention for, you know, pirating.
We just wanted to work for interoperability and all these things, and, you know, hopefully that was all important.
And every time one of our witnesses got off the stand, we were high-fiving each other and going, good job and whatnot.
Right.
You know, I think they sensed a good feeling in the courtroom.
Uh-huh.
I've got a couple more people standing by.
I've got Wendy Seltzer, John Gilmore, and Olay Craig here, so I'm going to move the phone on.
Okay.
So good talking to you.
Thanks so much for coming by and for, you know, spreading your knowledge and hopefully it'll do some good.
No problem.
Talk to you later, Manny.
All right.
Matt Pavlovich there.
Let's see who we have next.
Hi, it's Wendy Seltzer.
Hey, how are you doing?
I work with the Berkman Center for Internet and Society and leading the Open Law Project, which has been an online discussion of this case.
Uh-huh.
Do you find much interest in what's been going on over the past week?
Oh, a huge amount of interest.
People online have been hitting the website, mailing lists, very eager for news from the case
and eager for the latest transcripts so that they can get on and analyze what's been going on.
Yeah.
People have really been reading those transcripts, and it makes for some fascinating reading.
Yeah, there's some dull parts in there too, but really when you get to the heart of the matter,
when people are being grilled and questioned and talking about what the case is really about,
there was one point last Monday where a witness for the other side actually said that they, what was it, Robin?
They were trying not to muddy it up with First Amendment issues or something like that.
What exactly happened there?
That's right.
Shamos, who was their technology expert, had done some analysis on where you can get DCSS,
and the lawyers told him to take out of his declaration a reference to The New York Times because, quote,
they didn't want to cloud the case with First Amendment issues.
That was brilliant.
Yeah.
That's something we've got to give Marty Garbus credit for,
for even uncovering that fact that they had taken a reference to The New York Times out.
You felt it in the courtroom.
When he said that, it was just an unbelievable, you know, a sense of awe just filled the courtroom.
People were shocked.
So that was pretty interesting.
Wendy, any other observations?
Well, it's been a privilege for the Open Law Group to be able to participate.
Olay Craig, whom we met through the mailing list, came and testified as a witness today,
and I hope that the analysis we've been able to give has been helpful to the case.
Absolutely, absolutely.
You know, it's interesting, too.
Through this case, I've met so many cool people that I wouldn't have met ordinarily
or would have taken a lot longer to meet,
and I guess I owe the MPAA some thanks for bringing us all together so that we could fight this battle.
It feels good.
I mean, you know, I don't know what's going to happen.
I don't know, you know, how the judge is going to rule,
and I'm told that, you know, we're facing quite a bit of, you know, potential risk here.
We could be found liable for court costs and damages, millions of dollars.
But, you know, there is no question in my mind,
I guess now I understand why people go marching off to war sometimes,
knowing that they're probably not going to come back.
Sometimes when you really believe in something, you have to stand up,
and you have to take that risk, and you have to fight.
And I know that I don't know what will happen as far as the actual result.
I don't know how it's going to turn out.
But I do know if we hadn't fought, it would have been a very, very bad thing.
We would definitely be in a very different situation right now.
I think they were fully expecting these defendants, and you guys in particular,
to just roll over and not have anyone stand up to them.
And they would have their injunction, and they would have their precedent
that they could then go beat over the heads with other people.
And it would have a far more chilling effect than what we're seeing now.
But couldn't they have just picked three kids, you know, in junior high school
and picked those sites and said, you three are the people we're going to sue?
And, of course, they would have buckled eventually
because they didn't have the amazing resources to fight the MPAA.
Wouldn't they have won their cases easily by doing that?
Not to say that we're all high and mighty or anything like that, but why did they pick us?
I think that they really underestimated you guys.
I think that, as they have in every step of the way in this case,
they have underestimated their adversary.
They have underestimated Jan Johansson.
They have underestimated 2600.
They have underestimated Garbus's firm.
They have underestimated EFF.
And I think that it's all coming back to haunt them now.
Yeah, and they have also underestimated the truth.
I think that's something that's definitely going to come back to haunt them.
Wendy, any other comments?
Are you still there, Wendy?
No, let me pass the phone on to John Gilmore.
Okay, great. John Gilmore from EFF.
Hello, Manuel.
John, how are you?
All right.
You deserve probably the biggest thanks of all for making this all possible
through your commitment to the First Amendment
and all the things that EFF stands for.
So sincere thanks from all of us here.
How do you think it's all going to turn out?
Well, definitely my attitude has improved since hearing the judge say,
well, you know, you changed my mind about that First Amendment issue today.
He's become a lot more thoughtful about the issues,
and I think that can only help the case
because the more I think about them,
the more I realize that it shouldn't be possible
to destroy the rights that citizens have under the copyright balance
just by wrapping a little encryption around your product
and waving a magic wand and poof, those rights go away.
Right. Absolutely.
Were you following this from day one?
Yes, I've been in the courtroom all last week and this week
and have been tracking the whole legal process all the way back
from when the case was first filed.
How about back in October, November when the thing first started?
Actually, a friend of mine apparently had been tracking the Livid mailing list
and forwarded me a little note that says,
hmm, interesting, looks like somebody's cracked DVDs
and pointed me over at the list.
So I saw it within a day or two of when it happened
and thought this was fascinating.
I sort of sent people, kind of tried to caution people,
like are you guys really taking enough care here?
You know, probably somebody's going to land on you sometime soon
like a ton of bricks.
Maybe you should have more copies of the source code
lying around in different places.
Yes.
Now, there's another case going on in California.
Can you tell us something about that, the DVD CCA case?
Sure.
It's a case that has the same sort of objective as this.
They're trying to suppress the distribution of this program
and of the secret of how you crack the encryption system.
But in that case, they've used trade secret law
instead of the Digital Millennium Copyright Act.
And what they're alleging is that John Johanson and his friend in Europe
who cracked this must have clicked on a license somewhere
when they took a look inside what appears to be the DVD player
made by Zing Corporation.
And since they must have clicked this license,
they must have agreed to the terms that said
you're not allowed to reverse engineer it.
And then when they did, well, that was a violation of the law.
And then everyone they gave it to after that must have known
or should have known that it was done illegally
and therefore all of them are sort of in a giant conspiracy
to violate the trade secret.
Well, as it turns out, under trade secret law,
if one innocent person gets the secret
without actually doing anything illegal
or knowing that it was illegal or whatever,
then it's not a secret anymore.
Trade secret law is not like copyright.
It only exists to back up a private contractual arrangement.
And if one person gets the secret who isn't under contract,
then the secret is out.
But somehow they're alleging that of all the tens or hundreds of thousands of people
on the Internet who have now seen this secret,
all of them either were under contract or knew that a contract was broken.
That's incredible.
As I heard the judge say last week,
the horse is out of the barn and they want us to lock the barn.
I thought that was a great analogy to what exactly is going on here
because how can you possibly make it a secret again?
It's so obviously not a secret.
What do you think the MPAA and the DVDCCA,
what do you think they hope to accomplish from a case like this?
Well, I really think they hope to frighten people
so that they won't crack future security systems.
In particular, I think they have an idea that,
well, the Internet's not just good for Linux people to collaborate
and pirates to run around and steal things,
but it's also good for big companies to try to sell you goods.
And what they'd like to do is sell you bits of music and bits of movie
that you can download over the Internet into your system,
but that you can't actually play whenever you want.
It'll only play when you pay for it each time.
It's called pay-per-view.
And this sort of scheme will only work if while the thing is sitting on your hard drive
you don't have the right to go in under the copyright law and look at it
and examine it and pull it out if you want to.
So I think they're afraid that if people actually have the rights that exist under copyright,
that they won't be able to impose a business model of pay-per-view on the market.
Now, for some people pay-per-view is a popular thing.
It's sort of like when you go down and rent a video.
You pay and you can view it for a few days and then you take it back.
But for other people who actually want to own the product and not pay anything after that,
they should have that option.
That's true, and that's what we've been used to over the years, this new technology.
It seems like they want it to play by completely different rules.
Well, I think they want to keep their options open while closing off our options.
Our job at EFF is to say, wait a minute, as we introduce technology into society,
the rules for the public shouldn't get any worse.
They might get better. You might have more freedom.
You might have more access to information,
be able to stay in touch with your friends and family more easily.
But you shouldn't have fewer rights under the First Amendment.
You shouldn't have fewer rights under the copyright laws.
You shouldn't have less privacy.
And that's the goal we're working at.
Very interesting. Has this case been what you expected? Any surprises?
Actually, we expected this sort of conflict over intellectual property versus freedom.
And, in fact, Robin Gross joined EFF close to a year before these cases were filed
to work on exactly these issues, but we didn't quite expect it to break this soon.
In fact, we were getting ready to work on it from some other angles,
and suddenly MP3s were running all over the net and CSS had been cracked,
and we ended up in a defensive posture where we're working to keep people out of trouble
rather than working to try to define the rights they have before anyone gets into trouble.
In that sense, it was a surprise.
The case itself, other than the initial attitude the judge took,
where he sort of said, well, First Amendment, what First Amendment?
This program is only good for theft, so let's lock them up and throw away the key.
Yeah, I was a little concerned with that, too, and that seemed to be his stance at first.
But as we saw today, I think it's improved quite a bit.
I think he's made a real effort to learn something, and we sure did put on a good case.
So let's see where it goes.
John, tell us something about EFF.
I imagine a lot of people want to get involved somehow.
What can they do? How can they get involved?
Well, EFF is the Electronic Frontier Foundation.
We were started in 1990, long before Al Gore invented the Internet,
and we've been working for free speech,
basically to uphold civil rights and encourage civil responsibility on the Internet.
Our website is at www.eff.org,
and we have a large collection of materials there that all relate to freedom,
civil rights, and the Internet, with histories going all the way back to 1990.
We're a membership organization, and people are encouraged to join.
There's a button you can click on the front page.
And I will point out that defending this case has definitely stretched our resources.
It's been quite expensive.
I was really pleased that your conference at the H2K conference the other week,
between you, Robin, and Patrick, and other people,
we're able to collect several thousand dollars in contributions from all the people who came to the conference.
That's great. That really is great.
So I'm hoping that more of your listeners will care to contribute to keep freedom from disappearing
as the intellectual property machine grows.
Yes, because if EFF wasn't around for this, nobody else would have taken this case,
and we would have just lost.
And where would we be now had we just given up, had we not fought this case?
The MPAA would have gotten the precedent they were seeking.
How do you think that affects the average person out there who has no real tie-in to the Internet community?
How would that have affected them adversely?
Well, it's sort of like in Soviet Russia.
There was a constitution that said you had the right to freedom of speech,
and you had all these other rights, but somehow they couldn't actually be enforced.
That's sort of what the movie and record industries are trying to do to copyright.
Copyright is a bargain where the producers, the creators of works,
get rights in return for giving up other rights to the public.
And what these guys are trying to do is sort of make it that, well, yeah, you have those rights,
but somehow the equipment to actually exercise those rights doesn't exist.
You can't buy it anywhere. It doesn't seem to be on the market. Funny thing.
Wow. All right, John Gilmore, thanks so much for everything you've done.
Is there anybody else there who wants to talk to us?
Oh, six or eight. Why don't I pass you on to Marty Garbus?
Marty Garbus, yes. Let's hear from him.
Hello?
Hi, Marty.
Hi, nice to see you. Nice to see you.
Yes, Marty Garbus, the lead attorney in our case here.
You did a really dynamite job devastating the other side, I think.
Now, you've defended all kinds of people over the years, from Lenny Bruce to Spike Lee.
How do you see this as a significant case?
Well, I think people fight cases.
I think that what this shows is that people are prepared to put themselves on the line.
I think you were. You could have walked away.
Had you walked away, you could have made a deal and nothing would have happened to you.
You put up with four months.
John Gilmore and the EFF org could have walked away.
They could have waited for the next case.
I think that what happens is with people like you, with people like John,
like people with the EFF org, that there are people who always,
and you mentioned Lenny Bruce or Chavez or whatever,
there are people who are outside the culture,
and the culture then starts to force themselves upon those people.
I think you, John, Bruce, Chavez, are people who decided that you had your own perception of what the reality was.
You refused to allow the culture to impose that reality on you.
You saw a path that you thought was clear.
You recognized, you more than most, Manny, that when you walked into court,
you were going to be seen as a bearded archer or anarchist syndicalist,
and that they were going to look upon all of the people that we presented
as basically geeks and out of the culture.
I remember an early conversation with John Gilmore when we were talking about what the trial would look like,
and what it was going to look like was a lot of older guys with white hair
testifying against people who are out of the culture.
I think what the case proves is that, one, it requires resources,
but that if the people refuse, whoever the people are,
to be pushed around either by corporate, in this case it happens to be corporations,
it happens to be the people who control the media,
then I think that you can have an effective fight against it.
I think one of the interesting inconsistencies in this case
is that there's a motion to seal the files,
and there's a motion to suppress evidence,
and there's a motion to stop the press from coming in to watch the case.
The people who make that motion are the media conglomerates of America.
And it's just very interesting,
because those are the people who have always been on the other side of the issue.
So the question now is, why are the copyright holders against free speech?
Why is the media against free speech?
What are the social issues?
And I think that also an issue to be developed is,
clearly the Internet is the voice, whether it's Tom Paine or whatever,
but it's the voice of a certain set of people,
a certain group of people, that's endlessly expanding.
And the question is, why does the culture come in
and try and impress its own constraints upon those people?
I think that's an interesting social issue.
I think it's also East Coast code against West Coast code,
namely the whole question of freedom,
the whole question of libertarianism,
and the relationship between law and technology.
So I think what this case did
is it presented a culture clash and a legal clash
and a clash between people in power
and people who they perceive not to be in power.
I find it fascinating that the media conglomerates
would actually argue to keep the media out of the courtroom.
I mean, how crazy is that?
Well, I think that the media conglomerates are interested in one thing now.
They're interested fundamentally in the bottom line.
The people who represent the media
are no longer the kinds of people who used to represent the media.
They're people who are fundamentally looking at profit lines.
And when you're looking at profit lines,
concepts like fair use of the First Amendment
cut against profit lines.
And I think people like you,
individual voices on the Internet, 2600.com,
or people like EFF.org,
who decide to stand up for certain rights,
are seen in the same way as Lenny Bruce was years ago,
as Chavez was years ago,
are people who are basically hostile to the corporate culture.
So I think the case is not just a legal case.
It's a cultural case,
and it's also a case involving economic power.
And the extent to which that can play out in a courtroom
is an interesting issue.
The question is, if you are the people,
and if you're trying to find your voice,
how do you find it?
It's clear that you can't find it in the halls of Congress,
because there, money buys votes.
It's clear that it's very difficult to find it in the electoral process,
again, because money buys votes.
So what you're left with fundamentally here,
as you were in the civil rights movement,
as you were in Vietnam,
is ultimately winding up in the courts.
Not that it's the best place to be,
but at the end of the day, unfortunately,
it's the only place to be.
And the fact is, whether or not judges are biased,
or whether or not judges are prejudiced,
whether or not they don't come from the same companies
that are determining the case,
it's fundamentally the only place that even presents
a playable level field.
You can't win these issues in Congress.
Individuals cannot beat the large copyright holders.
People will not be mobilized around these issues.
So to some extent, you're forced into court.
And as John was saying,
this isn't the case that we might have picked,
but it's a case that had to be fought.
And I think that you, John, the EFF org,
deserve a lot of credit for standing up in this case
and making that fight.
All right, well, Marty, thank you so much for fighting.
There's some other people here,
but I'll leave you to some of them.
Okay, thanks again.
Hi, Manny, this is Olay Craig.
How are you doing?
Oh, pretty well.
I'm feeling really privileged to be here.
I kind of feel like I did something
that just about anybody could have done
and happened to be in the right place at the right time.
I feel exactly the same way.
All I did was publish a news story on a website,
and all of a sudden, you know,
this huge clamor is surrounding me, and wow.
But tell us something about your background,
Well, I am an avid Linux user and advocate,
and I work for the University of Massachusetts
Computer Science Department.
And I was looking for a way to get Microsoft
off of my own computer.
I really didn't want to boot into Bill Gates'
operating system anymore,
because as someone who knows how computers
should work in the best of worlds,
it drives me up the wall that it doesn't.
And at any rate, I was looking for a Linux DVD player,
and this was sort of the end of the year last year,
and I happened across the Vivid DVD site
hosted by Matt, who you've already spoken to,
and followed a link to Wendy Seltzer's discussion
of the case, which at that point
had just started to blossom.
And I sort of lurked on it,
then read it through the web for a while,
and finally subscribed to it,
and kept my mouth shut.
Then earlier this summer,
why the declarations of various MPA witnesses
were being posted, and one of them was Robert Shuman,
and in it he made this horrible statement
where basically if you looked at two statements
taken together, each of which was more or less correct,
but it seemed to me that what he wanted a reader to infer
was that it was possible to download a DVD
in seven minutes over the Internet.
And I work with a really high-speed Internet connection
and a state-of-the-art network all the time,
and I know that that's just absolute BS.
And there were a number of other people on this list
who said, well, this is absolute BS.
And I said, well, you know, we can do some time trials here.
And I collaborated with another member of the list,
a guy by the name of Sean Standish,
and he downloaded from me a large file,
and we estimated, we extrapolated from the size of that file
how long it would take to download a five-gigabyte DVD.
And it was...
I think it came out to something like a day and a half,
assuming that your connection didn't get cut off.
And this was another fellow with a high-speed Internet connection.
So we're not talking cable modems or 56k modems or DSL here.
He had a better Internet connection
to the backbone than I did, actually.
And that's assuming that other people
aren't doing the same thing at the same time.
Well, this was over the Internet,
so it was assuming a normal level of traffic otherwise.
And then I went on to do three more tests,
which I thought were more controlled
and more indicative of circumstances
inside a local area network.
So not over the Internet, but, say,
the MPAs seem to be horribly worried about college students.
Who, I'll tell you, have better things to do
than wait 26 hours for a movie to download.
So I did some tests within my network
simulating local area network conditions
for typical college networks.
And wrote this up and said,
well, hey, this is what I came up with.
And Wendy Seltzer,
who doesn't post too much to the list
but keeps an eagle eye on it,
said, well, you know, this is interesting stuff.
You talked to Ed Herdstad,
the players for the defense,
might want you to do a declaration.
And I said, hey, great, I'd be honored.
And here I am.
Uh-huh.
Now, maybe you could clear this up for me,
but isn't it possible to download
the encrypted files, too,
just as easily from the DVD?
Well, presumably one can get the encrypted files off,
which several people have testified is absolutely possible.
Why, yeah, you can download the encrypted files also.
And then once you do that,
all you need to do is play that through a DVD player,
and they'll play just like it was a regular DVD, right?
That, I think, actually is not quite true.
The DVD data is encrypted
with a key that's on the DVD disc,
and you have to get the key that's on the disc
with the data.
I see.
And that handshake is something probably,
if you really wanted to get in depth with,
would be better off asking Matt Pavelovich.
Okay, well, there's another challenge then,
so I guess that's something to work on.
I would say that it's certainly
probably a trivial programming exercise
to write a function that would take
DVD files in encrypted form
and mimic a DVD to an authentic DVD player.
Mm-hmm.
Okay.
Hey, is anybody else there?
Because we're running low on time, so...
Well, we're running low on time.
Yeah.
Is there anyone else here?
Um...
We're having people say,
no, no, I'm not worthy.
That's how I felt,
but they handed me the phone anyway.
I've got to say,
our defense team and our witnesses are all worthy.
I've never been so impressed with, you know,
with just seeing people come together
and get the job done.
Here's Marty again.
Marty.
David Atlas put on
some of the two of the great witnesses in the case,
David Turetsky and Peter Ramage,
and I know David would love to say something.
Okay, David.
Hey, Matty, how are you?
How are you doing?
Great job today.
Ah, thank you very much.
Small steps,
but I think we got some important points across today,
and I'm very encouraged.
Yes, I am too.
What did you think of Turetsky's testimony today?
He was terrific.
You know, what I said to him before he testified
is he's got a real passion for this stuff,
and it's important to him,
and I thought it was important that he convey that to the court,
which he did.
You know, no one's going to tell it better
than someone who it really affects,
and he just did a great job.
What do we have to look forward to from this point on?
A lot of hard work, actually.
We've got two weeks to get a brief together for the court
and help the court on some of these issues.
The court has asked us to enlighten it on a few points,
and we're going to do our best to do that.
We'll see, and then it's up to the judge.
What about closing arguments?
There are no closing arguments?
The judge has given us the opportunity to do that.
I think we're going to think about that over the next day or two
and see if it would be helpful.
We'll do that.
And if there are closing arguments,
do they take place in the courtroom?
Yes, they would be in the courtroom.
They'd be open to the public,
and then the judge will go in with the brief that we provide him
to think about these issues and issue an opinion.
And how much advance warning would we have
that these are going to be held?
The oral arguments, you mean?
Yes.
The judge will want to know whether we want to do it,
and then he'll set a time, I would say, a couple of days or a week.
All right, so we'll be able to notify people if it does happen.
Absolutely.
Okay, and then how long do you think it takes?
See, one thing a lot of people thought was that the verdict
would be just announced in court
and everybody would have some kind of reaction to it,
but actually that's not the way it works, is it?
No, I mean, there are a lot of issues here,
and I think the judge is very hardworking,
and I think he wants to do the right thing,
and he's going to think about it,
he's going to think about the evidence that we presented,
and I think he'll take a little bit of time
and then come out with, hopefully,
a well-reasoned and appropriate decision.
And the verdict is just pretty much like fax to your office, I think, right?
Is that how it works?
Yeah.
It'll probably be sent to us pretty quickly.
You get notified by the clerk,
and then you can go down and pick up the decision.
Uh-huh.
Okay, so it won't be a big, dramatic Perry Mason type of thing
when the verdict is announced?
No, but I think either way, this case is not going to be over for a while.
I think no matter which way it goes, it's going to go up on appeal,
and we expected that at the very beginning,
and it's going to be a fight either way.
So the other side can appeal if they lose?
Either side can appeal.
Okay, so it's likely that either side will appeal,
then it goes to the appellate court after that?
It goes to the Court of Appeals,
and then from there you go to the Supreme Court.
But this is a high-stakes game, so the loser is going to take it up.
Uh-huh.
So we're going to the Supreme Court.
That's what you think?
Yeah, it looks that way.
Okay.
Well, it sounds like it's going to be fun.
Patrick, actually, why don't you tell us about Radio EFF,
since we have a couple of minutes left?
Well, I'm a digital musician.
I write music, and I give it away.
I actually give away about 10,000 MP3s a month.
In fact, we were playing your music just now.
Oh, thank you.
I actually publish under the name NSA, No Such Artist.
Uh-huh.
But with Radio EFF, it was a great opportunity for me to mix
doing what I love, writing music, with taking the words of other people,
people that are involved with these cases and these issues,
and melding them together, and hoping that by melding the message with the music,
it can travel a little bit farther and a little bit faster.
And so it's really just a privilege to be able to do what I love,
work with issues that I love, and it's great.
How long have you been doing it for?
I've been writing music for a mighty long time,
but I just only recently was able to give my mom a phone call and say,
Mom, I'm able to earn a full-time living from my music.
It's great.
I can actually pay the rent.
Wow.
And hopefully more people will be able to have that opportunity in cyberspace.
Without a big major record company backing you, huh?
That's correct.
Wow.
Not bad.
Not bad.
Robin, any closing thoughts from you as to the importance of this case
and where we stand?
Well, I just want to encourage everyone that's listening to get involved in this case
and take a look at the EFF's website and the transcripts and the updates that we've sent out
and to talk to people, talk to their family and friends about the issues,
and really try to help to explain,
because we can't rely on the mainstream media to explain that this case is not about piracy,
that this case is in fact about civil liberties and civil rights
and the future of society and technology.
And so we really need to take that upon ourselves to do.
And so I would just like to encourage all those listening to get involved that way.
Absolutely.
And please take a visit to the EFF.org website
and make a contribution as big as you can,
because doing that will enable cases like this to be fought.
Imagine if this case was not able to be fought at all.
We just would have lost.
Who knows what they would have done to us.
It's a great comfort to know that there are groups out there that care,
that realize the importance of this kind of thing.
And as we progress into the digital age, we're going to see things like this a lot more frequently.
We're going to see all kinds of attacks on the rights that we assume we have.
It's vital to have groups out there that will be there as watchdogs,
that will be willing to take this.
I keep blinking when you do that, don't I?
These guys have tried to take my picture for an hour,
and I keep blinking every time he flashes.
You were able to look down the barrel at billions, and you didn't blink.
And for that, Manny, thank you.
I've had billions held out to me before in many different ways.
It becomes easy after a while. It really does.
Because they always play the same games.
Every time we get a lawsuit threat, well, this obviously was a little bit different
because this time they followed up with a real lawsuit.
After you do it for a while, you become kind of cynical,
and you just go through the motions and just keep doing it from practice.
So hopefully that will get us into a better place.
Anybody on the phone left?
I guess not. Okay.
Oh, we have Brad here, who's one of the witnesses.
You got something to say? You've got about 10 seconds to say it.
Yeah, I was just saying...
You're one of the spectators in the courtroom.
I wanted to say, the guy that said you can pay about $2.75 for a disc.
Not to copy, but to watch.
I'd rather spend $2.75 than 20 hours downloading on my cable modem.
And it's too large for normal hard drives.
Kids that copy for a pirate these things don't have very large hard drives.
But it's beside the point anyway because it's not happening.
People aren't doing this.
It's not how the program works. It's not what the program was written for.
Unfortunately, we don't have any more time to talk about it because we're out of time.
I'm sorry to everybody who didn't get to call in this week,
but it's a really important case.
It's the end of the case, at least the end of the trial part of it.
We still have the actual verdict, which is kind of an important part of it, too.
That's coming up.
We'll be following that in detail in the next few weeks.
We'll take phone calls next week, and hopefully we'll have some more news for you then.
Thanks, everybody, for showing support and for being at the courthouse
and just for being patient with us because, well, it's kind of messed us up over the past few months
having to deal with all this.
And hopefully we'll come out stronger.
Hopefully it'll make a big difference for everybody in the future.
Thanks again. This is Emanuel. I'll see you next week. Good night.
And you're tuned to WBAI 99.5 FM in New York.
Coming up next is Tahrir with your host.
She's back, Barbara Nimri-Aziz.
Thank you.