Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Filing 125

Transcript of Proceedings held on February 3, 2009, before Judge Marilyn H. Patel. Court Reporter/Transcriber Christine Triska, Telephone number [phone]. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/8/2009. (cat, COURT STAFF) (Filed on 2/10/2009)

Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Doc. 125

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BEFORE THE HONORABLE MARILYN H. PATEL, JUDGE RealNetworks, Inc., et al, ) ) Plaintiff, ) ) v. ) NO. 08-cv-04548 MHP ) DVD Copy Control Association, ) Inc., et al, ) ) Defendants ) ______________________________) San Francisco, California Tuesday, February 3, 2009 TRANSCRIPT OF PROCEEDINGS APPEARANCES BY PHONE: For Plaintiffs WILSON SONSINI GOODRICH & ROSATI A Professional Corporation One Market Street Spear Tower, Suite 3300 San Francisco, CA 94105 COLLEEN BAL, ESQ. MUNGER TOLLES & OLSON 560 Mission Street 27th Floor San Francisco, CA 94105 ROHIT K. SINGLA, ESQ. AKIN GUMP STRAUSS HAUER AND FIELD, LLP 580 California Steet 15th Floor San Francisco, CA 94104 REGINALD DAVID STEER, ESQ.

BY: For Defendant Studios BY: For Defendant DVD CCA, Inc. BY:

Reported By:

CHRISTINE TRISKA, CSR, RPR Pro-Tem Reporter

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]
Dockets.Justia.com

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Tuesday, February 3, 2009 2:04 P.M. PROCEEDINGS THE COURT: MR. STEER: THE COURT: appearances, please? MS. BAL: Good afternoon, your Honor. This is Colleen Good afternoon. Good afternoon, your Honor. This is Judge Patel. May I have your

Bal, B-A-L, from Wilson Sonsini on behalf of the RealNetworks plaintiff. MR. SINGLA: This is Rohit Singla of Munger, Tolles &

Olson with the studio defendants. MR. STEER: And this is Reginald Steer of Akin Gump on

behalf of the DVD CCA. THE COURT: Okay. I think most of this comes up

between the studios and RealNetworks, and it stems from a letter dated January 23rd with respect -- and maybe you've got this all worked out, but this has to do with some discovery related to the ARccOS and RipGuard technologies and the need for certain documents in preparation for the upcoming motions, and then suggesting that there may need to be either an extension or some adjustment to the schedule. So let's see who wrote this letter. Mr. Cunningham

wrote the letter, but I gather, Ms. Bal, you're going to -- first of all, is the situation the same as set forth in Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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your January 23rd letter? MS. BAL: The situation is the same. We have received

some documents since the date of that letter, but the situation is the same in that we are in a position of getting ARccOS and RipGuard documents extremely late to the point -- and we now have -- I think in the past week and a half the studios alone have produced close to 40,000 pages of documents. We have not

had an opportunity to sift through all of those, although we are, of course, working at a frantic pace to get through them. I believe there is -- we need to separate the wheat from the chaff, and there will be a lot of chaff, I suspect, although, what we can tell already is that the documents are not complete. We do not have, for example, the technical specifications for either of the new technologies, and we also know that the studios' production is not yet complete. THE COURT: Well, just a moment. When you're talking

about "new technologies," are you talking about new technologies related to ARccOS and RipGuard, or are you talking about some other newer technologies than those? MS. BAL: No. Excuse me, your Honor. I'm referring

to ARccOS and RipGuard as the new technologies. THE COURT: MS. BAL: Okay.

They were just -- you heard about them for

the first time from us at the December 22nd hearing because RealNetworks had only heard a few days prior that the studios Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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wanted to add those technologies to the preliminary injunction proceedings, and I'm referring to them as new technologies because they were never part of the studios' complaint or part of the TRO, and because we never received a single document from the studios relating to ARccOS and RipGuard until January 22nd, even though at the December 22nd hearing your Honor required both parties to produce to each other documents by January 9th so that we could try to be prepared for the March 3rd hearing date. THE COURT: Well, Mr. Singla, before responding to

what Ms. Bal has just said, what role do these ARccOS and RipGuard technologies play? Because as I understand it, these

are technologies that were developed either by Sony or others of the studios or companies, I guess, working under their direction for essentially guarding against or preventing ripping. MR. SINGLA: THE COURT: MR. SINGLA: Yes, your Honor. Is that correct? Yes, your Honor. ARccOS and RipGuard are

both technologies that sit on top of CSS to prevent the ripping of DVDs. They were developed not at the studios' direction.

They were developed by independent companies, one Macrovision, and the second is Sony DADC, which is based particularly in Australia and is not part of Sony Motion Pictures, and these are -THE COURT: But it's a Sony-affiliated company,

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obviously. MR. SINGLA: Obviously. Yes, it is a part of the

Sony -- sort of larger Sony ambient company. But these technologies are then sold, or studios buy them from Macrovision and Sony DADC, and use them on the disk -- the DVD they distribute. So the technical specifications, for example, that Ms. Bal referred to -- studios don't have those, the technical details to these technologies. To the extent that

they are even relevant to the DMCA issues -- frankly, I don't know that they are, but even if they were, we won't have those specifications. provide them to us. The RealNetworks' plaintiffs have subpoenas on January 9. DADC. They finally subpoenaed Macrovision and Sony Macrovision and Sony DADC did not

My understanding is that those companies fully

complied with subpoenas and produced their documents to RealNetworks. We have produced all our documents to -- related to ARccOS and RipGuard except for a handful of documents we can talk about to RealNetworks. The only reason there was a "delay," quote, unquote, is because we were on the road to producing the documents that we thought were relevant to this case about ARccOS RipGuard when RealNetworks asked on January 5th for a Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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much broader collection.

We agreed to do that much broader

collection, but it took time. But obviously -- now I'm hearing them complain that there are too many documents. But that's a function of the

fact that they asked us on January 5th for a very, very broad collection, whereas we had been trying to undertake after the December 22nd hearing a much more targeted collection of documents that actually related to the issues here. THE COURT: Well, Ms. Bal, did you get what you were

seeking with respect to these two technologies of -- pursuant to the subpoena? MS. BAL: Well, I can't answer that.

We just received literally about an hour ago documents from the Sony affiliate. So we obviously haven't

been able to go through all of those. And we have received some documents from Macrovision, but we still do not have the technical specifications or other technological documents relating to ARccOS and RipGuard, and I would also say that the studios have told us that they are withholding certain, what they term "sensitive documents" relating to ARccOS and RipGuard because -- for certain confidentiality reasons, even though we have a protective order in place. So we -- you know, we have gotten documents now. As I

said, we just got documents in about an hour ago from the Sony Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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affiliate.

We now have, you know, tens of thousands of pages

that were produced by the studios very, very late to our prejudice, because we have not been able to review them and go through them, and we certainly haven't been able to engage in fact discovery or prepare our expert reports or engage in expert discovery under the schedule that we had tried to work out to meet the March 3rd deadline. So we are at an extreme disadvantage at this point, and I don't think there's any question that the studios' production is late, the ARccOS and RipGuard production is late, that it is continuing, and that they have produced to us tens of thousands of documents in the last week or so. The real issue before us is what to do about it. THE COURT: Well, first of all -- okay. First of all,

Mr. Singla, what are the documents you say that you're withholding or still haven't been turned over? And are those

the documents that are at least in part the subject of what Ms. Bal is talking about that they haven't received? MR. SINGLA: No, your Honor, they are not.

Those are documents that we have told the Wilson Sonsini firm now that we would be willing to give them to Wilson Sonsini so Wilson Sonsini could review them themselves and determine whether there's really an issue here. These are documents that do not have technical specifications -- I have them on my desk. I looked at them

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this morning -- that have the technical specifications that Ms. Bal is talking about. These are documents that relate to antipiracy analyses by the studios; for example, things like how they go into Russia and try to spy on people ripping DVDs or figure out who's ripping and how they're ripping, or documents that have instructions or information from which someone could learn how to rip DVDs. They are not the kinds of things that Wilson Sonsini, the RealNetworks' firms have been asking for in terms of ARccOS and RipGuard, but they are documents that my clients are very reluctant to hand over to a company like RealNetworks that is actually trying to build circumvention technology. We will show them to them. We've offered for a

week to show them to the Wilson Sonsini lawyers so they can make their own judgments. THE COURT: is going to be done. MR. SINGLA: THE COURT: MS. BAL: We're ready. You're in Palo Alto, Ms. Bal? Well, then, let's set a date by which that

I'm in San Francisco right now, your Honor. Your offices are generally in Palo Alto? So I can take them in Palo

THE COURT: MS. BAL:

That's true.

Alto or San Francisco.

I know Mr. Singla is in San Francisco so

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he can -THE COURT: Francisco. Okay. So then you can meet in San

Can you do that within the week? We can do that, your Honor.

MR. SINGLA: MS. BAL:

We can do that certainly, but let me say the

issue is there are all these hurdles that, in addition to producing all of this massive amount of documents late to us there are all these hurdles -- and this is just one of them -that the studios are erecting to make it difficult for us to get through to the ARccOS and RipGuard technology to try to understand. This is just one of them. They are saying that the

lawyers can view it, but they are also saying that our experts, who are obviously the people who would most relevantly review these documents -THE COURT: But Ms. Bal, Ms. Bal, hold on. He said they are not

Did you hear what he said?

technical documents, and he gave you some idea just generally of what they may relate to. The first thing to do is to sit down with Mr. Singla, or someone from his firm, and go over those documents and see if they are even responsive to your discovery requests. MS. BAL: your Honor. Well, I agree that that would be a start,

It's my understanding that those documents, as

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they've been explained by the studios, detail the supposed means of circumventing ARccOS and RipGuard or other copy protection schemes, and so I believe that there would be something that our experts would need to review. But certainly we will look at

them to see if that is an issue. But this is just one of the barriers that the studios have erected to make it difficult for us to try to get to the hearing date, among them, we were supposed to have our documents by January 9th. THE COURT: that in a moment. MS. BAL: I understand that, and we'll take care of

Take care of one thing at a time -Okay. Yeah.

THE COURT:

-- in terms of what you haven't received

that you think you are entitled to. First of all, it may turn out after you review the documents that Mr. Singla just talked about that some them you don't need, some of them you think are responsive or whatever, and if it becomes, then, a question of the expert and the expert seeing them, then I think Mr. Singla, what you need to do is work out some sort of stipulation limiting, you know, the access to a single expert or something like that with appropriate -- with an appropriate confidentiality agreement. MR. SINGLA: THE COURT: Okay. So you can work that out, then, within the

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next week.

You'll sit down and take care of it. Understood your Honor. Okay. Now, with regard to what you got Maybe -- did you get

MS. BAL:

THE COURT:

from -- it sounds like you got a lot.

everything from, you know -- is it Macrovision? MS. BAL: We did not get everything from Macrovision. Well, what didn't you get that you need?

THE COURT: MS. BAL:

Again, we did not get key technical

documents that describe the actual operation of RipGuard. THE COURT: those over; correct? And they have some reluctance in turning I mean, they don't want somebody else to

rip off their RipGuard; right? MS. BAL: I think -- I believe that that's true. We

have a protective order in place, and we have been working with them on confidentiality issues. But we just don't have all the

documents that we need from them. THE COURT: And they are not a party here, so if

there's going to be any enforcement of the subpoena we'd either have to see a motion to quash from them, if they have a complaint, or else a motion from you to enforce since they are not a party. MS. BAL: That's right, your Honor. But what I think you need to do -- have

THE COURT:

you met and conferred with them? MS. BAL: We have met and conferred with them

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extensively.

We are still trying to meet and confer with them. And how about ARccOS?

THE COURT: MS. BAL:

ARccOS -That's one that you didn't -- you received

THE COURT:

some documents but not everything? MS. BAL: We just -- that was when I referred to the

fact that about an hour ago something was delivered to our office that's -- that was the ARccOS documents from the Sony DADC. We obviously have not had any opportunity to look at

those or even to determine the volume or what might be in there. THE COURT: Well, then, clearly you have to go over

those and figure out what's in there, and then see if they are -- you know, if they are missing something and try to -- who is representing ARccOS? MS. BAL: Well, one of the firms that is representing

the studios is also representing ARccOS -- the Sony DADC, the Mitchell Silberberg firm. THE COURT: Well, then, you're going to need to sit

down, meet with them and go over what you don't have and work out some kind of a confidentiality order. Who's representing RipGuard? MS. BAL: counsel -THE COURT: Macrovision. I see. Okay. Well, so Macrovision. It's just their in-house

you're going to do these things. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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Now, it appears that -- and then we can go back to whether there's any other discovery that's missing from -- from either side. But given that, as I understand it, you're willing to continue the current preliminary injunction and keep it in place while we set some other dates, if we have to, is there any reason why we can't come up with a schedule that is more feasible? MS. BAL: Your Honor, that's what we would like to do,

and we have said all along, "We are the party under the injunction, and we are in the unenviable position of having to ask for an extension, even though that injunction is going to stay in place. And so what we would like to do is either exclude ARccOS and RipGuard, or postpone the hearing to give us a reasonable amount of time to get to where we need to be so we have a level playing field for the hearing. MR. SINGLA: THE COURT: MR. SINGLA: THE COURT: hearing you better. Your Honor, may I -Who is this? This is Rohit Singla. Oh, yes, Mr. Singla. It was very faint. I'm sorry. Is there any reason why we can't pick a Okay. Now I'm

MR. SINGLA: THE COURT:

date that would make, you know, more sense given -- without Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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going into who's responsible for what and all of that -- just a date that is more reasonable -MR. SINGLA: THE COURT: Yes. -- particularly given the fact that the

preliminary injunction is going to stay in place? MR. SINGLA: is coming from. Obviously we understand where the Court

We had offered three weeks to deal with

whatever concerns that RealNetworks had with document production issues. And that's fine. We can certainly figure out a date.

I'm hopeful three weeks from the current date maybe. THE COURT: Well, they are proposing April the 14th

for hearing with a series of other dates in the letter. Do you have that letter with those proposed dates? MR. SINGLA: I do, your Honor. I think April 14 is

problematic for most of the counsel on the defendants' side in terms of schedules. What I wanted to raise -THE COURT: something? MR. SINGLA: your Honor. Well, I don't think it's a group trip, Are you all going on a skiing trip or

I have plans with my kids for spring break. Is that a spring break week? It is a spring break week here, at least Mr. Williams is

THE COURT: MR. SINGLA:

in the East Bay, and I know Mr. Speer is out. in a two-month trial starting April 13th.

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If we could get something in the week of March 23rd perhaps that would give RealNetworks another three weeks from the current time frame. One issue, before we get to scheduling, your Honor, that I wanted to raise -- the reason the studios, in addition to these scheduling details, have opposed further -- yet another extension, is that we are learning increasingly that RealNetworks is taking action that we believe is inconsistent with our understanding of the TRO. And we are very concerned

that the longer this drags out the more and more prejudiced the studios are by these kinds of actions? For example, on Friday I took a deposition of the business development lead for the facet project at RealNetworks, and he very candidly said that since the TRO, he has made trips many places overseas. He is sending

contracts, negotiating contracts, trying to get companies to buy the facet software. The TRO prohibits offering or

selling anything like RealDVD, and that's exactly what they are doing. MS. BAL: Your Honor, may I respond to that? Yes.

THE COURT: MS. BAL:

I was at the deposition as well, and what

the witness testified to, this is with respect to the facet product. And as was discussed at the December 22nd hearing, the And the what

facet product is a manufactured standalone box. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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the witness testified to is that he has been working to try to find a manufacturer for the facet product. These are manufacturing partners. MR. SINGLA: Your Honor, the statute prohibits These are not sales.

manufacturing the circumvention devices. So you don't have -- however they want to characterize it -- and I would say there was testimony -- the witness was very clear that he was trying to sell it to his customers, who are manufacturers. DMCA prohibits the manufacture, the importation, the offering, the sale of any circumvention device, and that is what we are learning has been going on and has been going on since the TRO. MS. BAL: But -- first of all, the facet -- you have

taken the position that the facet product is not within the scope of that TRO. You have taken the position that the facet

product is not within the scope of that TRO. And, of course, we have to get to the place where we can work with partners to have the product manufactured. We are not manufacturers. We are talking to manufacturers to

have the product manufactured. And let me also say that the current TRO, even if it covered facet -- which you have agreed it does not -prohibits selling or otherwise trafficking in software products known as RealDVD or any products substantially Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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similar. There is no suggestion that we are doing anything of the sort. We are not -- we are certainly not in violation

of the TRO with respect to facet with respect to our efforts to find a manufacturing partner. THE COURT: Well, Mr. Singla, if we put this over to

some reasonable date, maybe a little earlier in April to avoid that week because apparently Easter is the 12th? So very -(There was a discussion off the record.) THE COURT: But April the 12th is Easter, so generally There are

there are some schools that have the week before.

some schools that have the week after Easter as a spring break.

But could we do something the week of -- but you're talking about the date of the 14th. What about the week of April the 6th? MR. SINGLA: I believe that's also -- with the dates

that we were going to suggest, your Honor, are based on -- we had checked with Mr. Bowser about the Court's schedule, working -- if not March 23rd then April 1, 2, which I believe is open on the calendar, and at least for all of the defense counsel I checked with works for everybody. I believe one of the DVD CCA counsel would be unavailable April 6th. Mr. Williams would also be

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unavailable April 6th. -THE COURT:

I think that would greatly prejudice

Okay.

How about -- Ms. Bal, how about

April the 1st or the 2nd? MS. BAL: Your Honor, it's not enough time. We have

mapped out the amount of time that we need based on where we are now, and certainly -- it's a tight schedule, and we would not be asking for more time if we did not need it, because we are under an injunction. time. MR. SINGLA: Your Honor, we have looked at their But we simply don't think that that is enough

schedule, and we have a proposal of an April 1 hearing date which gives them every single date that they have asked for for discovery. And the only thing we would suggest would be for

April 1st is to condense the time period for briefing -- to give the parties a little more time for briefing, and to get the papers to the Court -- get the reply papers to the Court a week before the hearing, instead of -- they propose two weeks before the hearing. We can get an April 1st date and give them all the

time they say they want for discovery. MS. BAL: Well, let me say this. We still don't know

if we have everything we need.

We still have disputes with the

studios relating to the 30(b)(6) witnesses, relating to, you know, what our experts can and cannot see. So we gave your Honor a schedule beginning on Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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April 14th begrudgingly, because we don't want to extend this any longer than we have to, but to give us just enough time to get there with a level playing field. So moving it to April 1st and 2nd doesn't work for us. It's not enough time. THE COURT: MR. SINGLA: How about the week of April the 20th? Your Honor, I can respond. Can you please identify who's speaking?

THE REPORTER: THE COURT: MR. SINGLA: studios.

Yes. I'm sorry. This is Rohit Singla for the

If I could just respond for one moment, your Honor. There is two issues here. The first is the studios

-- I don't want to get into whose fault any of this is -- the studios should not be prejudiced by a delay that has Mr. Williams, our lead counsel, unavailable. He's starting a

two-month jury trial in San Francisco Superior Court in April. So we would strongly request that the hearing be

before April 3rd so that he can participate as the studios' representative. Having said that, we can come up with a schedule -I will propose one right now -- that gives RealNetworks every single date they want for discovery, experts, fact discovery, depositions -- everything they want. to change is -THE COURT: Well, but what about documents and the The only thing we need

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whole issue with regard to -- the whole issue with regard to experts and confidentiality orders? MR. SINGLA: THE COURT: Let me respond, your Honor. And also the 30(b)(6) witness

designations, et cetera. MR. SINGLA: That's fair, your Honor. Let me respond The only

to -- on the dot, we have completed our production.

documents that we know of is the handful that we spoke about that have this -- that have this -- I'll show Ms. Bal this afternoon if she wants -- that we don't think are relevant. if she disagrees we'll figure that out as the Court has suggested. Second, on expert confidentiality -- I believe that was motivated by Macrovision and Sony DADC. I understand And

that both of them have now agreed that all of Real's experts can see these documents. there. THE COURT: And they will have to sign off on the I don't believe there is any issue

confidentiality order; correct? MR. SINGLA: MS. BAL: Yes, your Honor.

Your Honor, we are where we are because of

the studios' failure to produce these documents to us earlier, the studios saying, "Well, we've produced everything." Well, we haven't gone through that, and what we know right now is we don't think we have everything. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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THE COURT:

Maybe you don't need everything.

Maybe

you have what you need. MS. BAL: Maybe we do. I hope that's true, but --

THE COURT:

Well, you're asking everybody to move the

scheduled based upon what you're not sure you have. MS. BAL: Well -- because we are where we are now

because of -- and I can't say with more specificity because we have just gotten these governments, because the studios have produced tens of thousands of pages in the last few days. THE COURT: MS. BAL: What date did you get those?

We got documents -- I have a list here. Your Honor, I have to say that -No. Hold on just a minute. I asked her a

MR. SINGLA: THE COURT:

Let her respond. MS. BAL: We got documents on the 22nd, on the 26th, So we are -- you know, it's the So we have just gotten these

on the 28th, on the 30th.

second or the third right now. documents. THE COURT:

Well, some them you got two weeks ago,

MS. BAL:

Well -What you got on the 22nd. So that's 12 days

THE COURT: MS. BAL: That's right.

The 22nd is the earliest.

It's a massive volume of documents.

And we also have these additional discovery issues, Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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and what I would say is that if -- you know, I'm perplexed by what Mr. Singla said about Mr. Williams' schedule, because at the December 22nd hearing Mr. Williams, I believe, said that he had a trial starting in March for two months. the information is a little bit different. But regardless, if there is a problem in scheduling then the alternative is to keep the hearing date where we are and exclude ARccOS and RipGuard. We're ready to go on CSF. We've been ready to So I think

go -- we actually offered to exchange expert reports yesterday with the studios and the DVD CCA. So if they claim

that they are being prejudiced for having to wait for the hearing, and if they claim there is a problem with scheduling, let's go with CSS, and let's wait and put ARccOS and RipGuard aside for the time being, and maybe that hearing with CSS with respect to facet, and RealDVD will inform the thinking with respect to ARccOS and RipGuard. hearing won't even be necessary. MR. SINGLA: THE COURT: MR. SINGLA: THE COURT: Your Honor, if I could respond? Name, please. Yes. This is Rohit Sing. Maybe another

I mean, the reporter has to get down the

correct attribution, otherwise the transcript is going to be a mess. MR. SINGLA: Of course, your Honor. I apologize. I

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had not realized this was being reported. THE COURT: MR. SINGLA: Oh, yes. Rohit Singla for the studio.

Let me just be clear so we go through this one thing at a time. production. With documents -- we had completed our

There are no more -- if they have the

documents -- if there was a lot of documents it's because they asked for a lot of documents. We were prepared to give a much more targeted production much earlier. That is what it is. If they say

there's been a delay, it's been at most two weeks, three weeks. We're offering from March 3rd through April 1st --

that's a one-month delay in the hearing for a two- or three-document delay. In terms of 30(b)(6) witnesses, we have given them names. The Court can look at the e-mail attached to We gave them more than a week Those witnesses are

RealNetworks' own declaration.

ago a list of people, a list of topics.

available whenever RealNetworks wants to proceed. The schedule that we're proposing on April 1st -we'll give them all of the time they want for fact discovery. I'm not proposing to short any of the time for fact discovery. There is just no reason that we can't get this And Mr. Williams did have a trial

done by April 1st.

scheduled for mid March that was moved by Judge Kramer to Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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April 13, which is now we understand a confirmed date that will not be moved -THE COURT: so I'll ask him. MR. SINGLA: litigation. THE COURT: I don't think Rambus is going anywhere. I Just ask him. It's the Rambus Well, I'll be seeing Judge Kramer tonight

think that Rambus is going down the tubes. MR. SINGLA: The litigation -- the trial in the

antitrust case is scheduled to start on April 13, and so I don't see why we can't have this hearing by April 1st. MS. BAL: Bal again. Your Honor, Mr. Singla -- this is Colleen

Mr. Singla has said they have completed the We

production of what they are planning to give us in essence. have previously had to go back to them repeatedly after they

claim that they've given us everything to get everything that we need. I don't want every document. In fact, I think I have

more documents right now -THE COURT: there's a handful. He says he's given you everything except

You are going to meet this week, and that

should be -- you should be able to do that, and then it seems to me that you can work out the rest of these dates along the schedule that you've given. But then you'd have to work out

dates for when your submissions are going to be here, because obviously, your briefing is going to have to be different, Mr. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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Singla.

That's one of the problems. MR. SINGLA: But your Honor, what we suggest is we

keep all of the dates that RealNetworks has proposed, make the opening papers, opening briefs due March 11 instead of March 17, responsive papers due March 25th instead of March 31st, and we believe that if the Court is amenable to getting the papers at least before the hearing, that would allow an April 1st hearing date without having to shortchange RealNetworks by one day of what it's asking for from the fact discovery. THE COURT: Well, that does mean that some of that

fact discovery would be spilling over into the time when their briefing is going to be due; correct? MR. SINGLA: THE COURT: MR. SINGLA: I don't believe so, your Honor. Some of the depositions? The schedule they proposed is expert

depositions ending March 10th, and we can make our witnesses available earlier if they want, or on the early part of the expert depositions schedule and have papers due on the 11th or the 12th. MS. BAL: We have -- we have -- we have heard from

them that they won't even allow our expert who has been already cleared to view their ARccOS and RipGuard documents. And so let

me just tell you that finding an expert -- finding experts in this case is extremely difficult for us because experts don't want to cross the studios. They are afraid of it. So we have a

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problem with respect to what our experts can see. We have a problem with respect to the Rule 30(b)(6) depositions, because they have -- they know that we have limited to -- we are limited to six depositions. And in

response to our notices, which are quite limited they offered 11 witnesses and simultaneously pointed out to us that we could only take six. But if you look at the 11 witnesses they gave us they seem calculated to undermine our ability to take testimony. There are numerous witnesses offered to testify There are numerous witnesses offered to We have a problem.

for just one topic.

testify on exactly the same topic. THE COURT: MS. BAL: don't think -THE COURT: meaning of that term? MS. BAL:

Have you met and conferred on this?

We have talked to them about this issue -- I

Have you met and conferred within the

Not fully, your Honor, because we just got So,

their objections I think on Tuesday or Wednesday last week. no; that's not fully met and conferred.

But what I'm trying to do is give you a sampling of the issues that we are facing -THE COURT: Well, as I understand it they've agreed --

they've with respect to the expert or expert seeing pursuant to the confidentiality order, whatever it is that there's been a Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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problem before. MR. SINGLA: THE COURT: That's right, your Honor. They have agreed to -- well, and they will

agree to sit down -- because you will meet and confer ASAP, maybe when you're exchanging those documents or even earlier on these 30(b)(6) witnesses, because if there's a limit of six that's it. And you can tell them who are the -- you know, where the strong suits are, and be honest, Mr. Singla, about it, that you're wasting your time maybe to take witness X when witness Y would really provide more information, et cetera; okay? MR. SINGLA: THE COURT: out. MS. BAL: May I seek clarification with respect to one Yes, your Honor. You sit down and you get that straightened

of the things your Honor just said? With respect to the witness I just want to make sure that Mr. Singla has confirmed that our expert, Mr. Felton, can see all of the documents. MR. SINGLA: there is no objection. Your Honor, from the studios' perspective The only objection I understood was from

Macrovision and Sony DADC. My understanding was that -- Ms. Bal has been dealing with them independently, not through us, and my Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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understanding is that Macrovision and Sony DADC have both agreed -- although Ms. Bal would know better -- that Mr. Felton can see those documents. MS. BAL: That's not actually true. The issue came So there's no

from the studios, not from the third parties.

issue from the studios, and I think that we've erased that issue. THE COURT: MS. BAL: Well, then, there you are. Okay.

But let me still say that we are -- we still I heard

don't know if we have all the documents that we need. Mr. Singla say -THE COURT:

You have all the documents I think you're

going to get except for the ones that you're going to go over with Mr. Singla; okay? you know, of this now. Now let's move on. I've heard enough,

I think we've got to move on.

So we'll set it for April the 2nd. Where is April 2nd? MS. BAL: April the 2nd is a Thursday. Right.

THE COURT: MS. BAL:

So what, then, happens -- you know, we have

previously had three days of hearing time for this. THE COURT: three days. MR. SINGLA: scheduled, your Honor. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone] I don't believe there were three days I'm not sure I want to hear you all for

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THE COURT: MS. BAL:

No.

I think -- how many did we have -We had

There were three days scheduled.

January 27, 28 and 29.

And the last time that we talked to your

Honor, your Honor said that we would have -THE COURT: I'll set it for April the 1st. But

believe me, I'll cut you off when I think I've heard enough. MR. SINGLA: Your Honor, I believe it was three

half-days in January, and we were thinking a day and a half would be adequate. MS. BAL: It was not three half-days, Mr. Singla. It

was three full days. THE COURT: MS. BAL: Do you have to argue about everything?

I'm sorry. Maybe it's a good idea to listen for a

THE COURT:

Try listening. Now, I want you to meet and confer by the end

of -- let's see, what's today?

Tuesday -- by the end of this

week on those documents and on your 30(b)(6) witnesses and get that straightened out. And I expect you to work out everything else also, because this is another one of those conversations that probably wasn't necessary. Understood? MS. BAL: Yes. Understood, your Honor.

THE COURT:

So talk to each other and listen to each

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other. MR. SINGLA: Your Honor, at the danger of trying the

Court's patience there are -- that we had, the studios had that we haven't really -THE REPORTER: MR. SINGLA: THE COURT: MR. SINGLA: I'm sorry, you're -This is Mr. Singla again.

I'm sorry.

You're cutting out. This is Rohit Singla, and there were two

issues that the studios had that we have not really spoken about. I'm wondering if the Court -THE COURT: us? MR. SINGLA: Yes, we did, your Honor. The first Where are those? Did you submit those to

issue -- what I mentioned earlier, the competing efforts by RealNetworks to sell their facet product to these OEMs, who are not subject to any injunction -THE COURT: Well, they are not selling the product.

They are trying to get the OEMs to manufacture; right? MR. SINGLA: Right, your Honor. But manufacturing is

prohibited by the DMCA -THE COURT: hearing. That may be. We'll take it up at the

If anybody -- if they have to, as a result of anything

we do at the hearing or any rulings that are made they have to cut off contracts, that will be their loss. their pocket. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone] It comes out of

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Certainly not much of anything is going to get manufactured between now and the hearing date; right? You

know, if they have to terminate the contract that will be out of their pocket. MR. SINGLA: THE COURT: MR. SINGLA: Okay, your Honor. So don't worry about it. The second issue is that we understand

from what Mr. Cunningham told the Court on December 22nd that their defense -- one of their defenses on facet is going to relate to the nature of the hardware -- the facet product is both software, as Ms. Bal said, and a hardware box. understand -THE COURT: We didn't get that. Don't rustle your We

papers while you're talking because we couldn't hear you. MR. SINGLA: I'm sorry, your Honor. That was not me

MS. BAL: little bit so --

That was somebody else.

But you cut out a

MR. SINGLA:

Right.

The real -- the facet product is

both software and hardware.

And we understand from

Mr. Cunningham that they are going to argue that part of their defense relies on the specific hardware implementation that they have, that it's not a PC or something. If that's the case, if that is part of their defense, then we believe we are entitled to see the actual Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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device that they propose is going to be sold to consumers. And we have not seen that. The witness on Friday

admitted that that will be decided by these manufacturers, not by Real. And so the prototype that we've seen from Real

is sort of their internal testing, but it's not the thing that is going to be sold to consumers. real difficult position -THE COURT: But if it hasn't been manufactured yet, So we are put in a

how are you going to see it other than the prototype? MR. SINGLA: But we haven't seen the prototype. The

prototype we've seen -- the designs we've seen are Real internal testing, not what some company is going to then sell to consumers. So -Well, is there a prototype with respect to

THE COURT:

this facet that you're seeking to have manufactured? MR. SINGLA: There's a box that they have that they

are using for internal testing and -THE COURT: MS. BAL: Ms. Bal, is there a prototype?

Yes, your Honor, there is a prototype, and

we have given access on numerous occasions to Mr. Singla and his expert as well as the DVD CCA to that prototype. I think what Mr. Singla is referring to is, there is another prototype on another chip set. But what the

witness testified to on Friday was that the facet software associated with those products is identical in functionality. Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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And what Mr. Singla said earlier that we have some kind of defense based on the specific hardware implementation is a misunderstanding. We have the same exact facet software

with the exact same functionality that will be used that we are just debugging now and seeking to have to get manufacturers for. And he has absolutely had more than one

occasion to review the prototype that we have that demonstrates exactly the facet software and its functionality. THE COURT: Well, is there another prototype out there

that is also going to use that same software? MS. BAL: There is another prototype out there that's

going to use the same software, but it is identical in functionality. The facet software is the same facet software,

and there's no difference -- there's no difference in terms of what's being alleged here about the hardware. The hardware is -- the hardware, you know, might be a different size box. A chip might be located here. It

might be located there. based on the hardware.

But there's no defense that we have The hardware is essentially

irrelevant to what we're talking about. THE COURT: Is the defense based solely on the

MS. BAL:

Well -- and there's not a PC, but that's the And I think what Mr.

difference between facet and RealDVD.

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Singla was referring to is that RealDVD is on a PC, and facet is a standalone device. THE COURT: Okay. But is there any aspect of the

facet -- of the hardware that's going to be used that is susceptible to the same arguments that they are making with respect to the software? MS. BAL: Well, aside from the fact that it is

hardware and it's not a PC, no. MR. SINGLA: THE COURT: MS. BAL: I think that the -Well, what does the hardware do then?

It's looks like a DVD player, your Honor.

So it's a black box, and you would open it up, and you'd see a disk drive, and there would be a CPU there, and there would be -- I don't know -- some other -- like, yeah, a place for the disk drive to go in. I mean, it really would just be looking

like, you know -- to most people probably it would just be like opening up a DVD player and looking inside a DVD player. THE COURT: Is that -- the prototype that he's already

seen, is that what you're describing? MS. BAL: I'm describing both prototypes, because they And as I said, you know, it may

look -- that's what they are.

be that one box is bigger and one box is shinier, and it may be that the chip set is located here instead of over there. But it's functionally identical. So there is --

you know, as the witness testified, what we're talking about Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]

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here is the facet software. identically. THE COURT:

The facet software functions

Well, Mr. Singla, if you are successful

with respect to the -- you know, the facet software, doesn't that take care of it regardless of how it's housed, regardless of what hardware it's -- you know, it uses? MR. SINGLA: Well, your Honor, that certainly is our

view that it's just software, and that's all that matters. But what I heard Ms. Bal saying is the same thing I heard Mr. Cunningham saying, which is to be very careful and not say "just the software." What they say is, it's the software plus the fact that it's quote, "not a PC." But the question of whether

something is a quote, "PC" or not a PC is something that I expect we'll need to litigate here. to litigate that question, fine. anything more. But if they were going to raise the defense that "This is not a PC because of the specific hardware being used," then we have the right to see the actual design for the actual hardware that will be sold to consumers. For example, can you attach a keyboard to it? you attach certain kinds of ports and devices to it? Can Now, if they don't want

I don't need to see

The

prototypes that we've seen -- and Ms. Bal was there -- is real internal prototypes. It's not the design that Buffalo

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or these other companies are going to sell to consumers. So we don't know exactly what -- we're seeking to enjoin this thing that they say is not a PC, what these people like Buffalo are going to sell. We haven't seen that.

In fact, RealNetworks' witness said -- the 30(b)(6) witness said he doesn't even know. Buffalo hasn't even told him yet.

So we're in a weird position where we're trying to enjoin something they're saying is not a PC but we can't even see it. THE COURT: Well, I think we go on what we have now,

and then at the hearing, depending on where we end up with the software, if it's necessary to add anything to that we can deal with it at that time. MR. SINGLA: THE COURT: MS. BAL: Okay, your Honor. Okay? Thank you.

Thank you, your Honor. I mean, this is -- you know -- I wish this

THE COURT:

litigation were close-ended, but it does not appear to be, so -- but you've got enough to work on now; okay? MR. SINGLA: MS. BAL: Thank you, your Honor.

Thank you, your Honor. Does that take care of it? And try to

THE COURT:

work these things out yourselves by talking with each other and listening to each other. MS. BAL: Thank you.

Thank you, your Honor.

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THE COURT:

I'm going to cut out and you get to work.

You got your work cut out for you. MS. BAL: Okay. Bye-bye.

THE COURT:

(The proceedings concluded at 2:48 p.m.)

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CERTIFICATE OF REPORTER I, CHRISTINE TRISKA, Pro-Tem Reporter for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in 08-cv-04548 MHP, RealNetworks, Inc. et al v. DVD Copy Control Association, Inc. et al were reported by me, a certified shorthand reporter, and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete and true record of said proceedings as bound by me at the time of filing. The validity of the reporter's certification of said transcript may be void upon disassembly and/or removal from the court file.

____________/S/ Christine Triska_____________ Christine Triska, CSR 12826, CSR, RPR Sunday, February 8, 2009

Christine A. Triska, CSR, RPR Pro-Tem Reporter - U.S. District Court [phone]