14 December 2002. Transcript purchased for $58 from Exemplaris.com.
List of daily transcripts: http://cryptome.sabotage.org/usa-v-elcom-dt.htm
1
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
3 SAN JOSE DIVISION
4
UNITED STATES OF ) CR-01-20138-RMW
5 AMERICA, )
)
6 Plaintiff, )
) San Jose, California
7 vs. ) December 9, 2002
) SKLYAROV CROSS-EXAM
8 ELCOM LTD., et al., )
)
9 Defendants. )
_ _ _ _ _ _ _ _ _ _ _ _ _)
10
PARTIAL TRANSCRIPT OF PROCEEDINGS
11 BEFORE THE HONORABLE RONALD M. WHYTE
UNITED STATES DISTRICT JUDGE
12
A P P E A R A N C E S:
13
For the United States United States Attorney's
14 of America: Office
By: SCOTT H. FREWING,
15 AUSA
280 South First Street
16 Room 371
San Jose, CA 95113
17
For the Defendants: Duane Morris
18 By: JOSEPH M. BURTON, ESQ
GREGORY G. ISKANDER, ESQ
19 Spear Tower
One Market Street
20 Suite 2000
San Francisco, CA 94105
21
22
23
24 Court Reporter: PETER TORREANO, CSR
License Number 7623
25
2
1 INDEX OF WITNESSES
2 DEFENDANT'S WITNESSES
3 DMITRY SKLYAROV
4 Cross-Examination by Frewing P. 3
5
INDEX OF EXHIBITS
6
GOVERNMENT'S EXHIBITS MARKED ADMITTED
7 57 P. 17
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
1 San Jose, California December 9, 2002
2 PARTIAL PROCEEDINGS
3 THE COURT: Mr. Frewing?
4 MR. FREWING: Yes. Thank you, Your
5 Honor.
6 CROSS-EXAMINATION
7 BY MR. FREWING:
8 Q Good afternoon, Mr. Sklyarov.
9 A Good afternoon.
10 Q Mr. Sklyarov, you're an employee at Elcomsoft?
11 A That's correct.
12 Q You were an employee of Elcomsoft when you
13 wrote the AEBPR program?
14 A Yes, I am.
15 Q You were an employee of Elcomsoft when you
16 gave the deposition that you gave in this case?
17 A Yes, I am.
18 Q Mr. Burton asked you about the agreement with
19 the Government. Do you recall that?
20 A Yes.
21 Q And Mr. Burton asked you whether you had --
22 knew that you were obligated to testify truthfully?
23 A Yes.
24 Q And you're testifying truthfully here today?
25 A Yes.
4
1 Q And you were testifying truthfully on the date
2 of the deposition?
3 A Yes.
4 Q Now, you were represented by an attorney in
5 this case?
6 A Yes.
7 Q That's Mr. Keker?
8 A Correct.
9 Q He has other attorneys who are also helping
10 represent you?
11 A As far as I know, Michael Celio from John
12 Keker's office present here in courtroom and he
13 helped me, too.
14 Q Right. You know Mr. Celio is a lawyer at
15 Mr. Keker's firm?
16 A Yeah.
17 Q And he's here today?
18 A Yes.
19 Q And you know that I asked Mr. Celio
20 approximately ten days ago whether you would meet
21 with us in advance of testifying in this case?
22 A Yes. He tell me that.
23 Q And you declined to meet with us?
24 A Actually, he just notified me that you asked
25 me -- ask him about testifying with you, but there
5
1 was no question if I want to testify or not.
2 Nobody asked me about that.
3 Q But you know that your lawyers declined on
4 your behalf?
5 A I think so.
6 Q You rely on Elcomsoft for your income?
7 A Yes.
8 Q The income from Elcomsoft supports your
9 family?
10 A Yes.
11 Q You know Alexander Katalov?
12 A Sure.
13 Q You know Vladimir Katalov?
14 A Yes.
15 Q You've been visiting with them while you've
16 been in the United States?
17 A Yes.
18 Q You've met with Mr. Burton?
19 A Yes.
20 Q You met with him in advance of your testimony
21 here today?
22 A Excuse me. Repeat your question a little bit
23 slowly.
24 Q I'm sorry. I speak too fast.
25 You met with him in advance of your
6
1 testimony today?
2 A Yes.
3 Q You spoke about what you would testify about
4 today?
5 A No.
6 Q He didn't ask you any questions about what
7 he was -- he didn't tell you -- let me rephrase
8 that.
9 He didn't tell you any of the questions
10 he was going to ask you today?
11 A He asked me some questions.
12 Q Now, you've testified at your deposition that
13 the only function of the AEBPR program is to remove
14 protections from protected PDF files; is that
15 right?
16 A Yes, it's correct.
17 Q And you testified that you knew it could be
18 used for a bad purpose?
19 A Yes, it could be.
20 Q And you knew that when you were designing the
21 program?
22 A Yes.
23 Q Now, you're familiar with the Adobe eBook
24 Reader?
25 A Yes.
7
1 Q And the Adobe eBook Reader allows publishers
2 to put certain limitations or protections on an
3 eBook?
4 A eBook Reader doesn't allow put limitations.
5 Limitations is putten on book by other software.
6 eBook Reader just allows to limit user in using
7 book according to limitation put on book.
8 Q I appreciate the clarification. So the
9 publisher uses other software to put on the
10 permissions or protections; is that right?
11 A Yes.
12 Q And the eBook Reader enforces those
13 protections?
14 A Yes.
15 Q Some of those protections are the ability to
16 copy the book?
17 A Actually, Adobe eBook Reader doesn't allow you
18 make work -- working copy of book at all. So it's
19 not way of protect document. It's a feature of
20 Advanced eBook Reader. You just can't move book
21 you bought for this computer to any other computer.
22 Q So when you use the eBook Reader you cannot
23 make copies of the eBook that you've purchased?
24 A You can make copy, but that copies will not
25 work.
8
1 Q So it's a non-functioning copy?
2 A Right.
3 Q You can't send it to somebody and they
4 can't -- and they will not be able to open it?
5 A That's correct.
6 Q Another protection or permission that one can
7 impose to be used with the Adobe eBook Reader is
8 the printing function?
9 A That's correct.
10 Q The publisher can choose to put -- to allow
11 some printing, no printing or all printing?
12 A That's correct.
13 Q The Advanced eBook Processor removes all of
14 those protections; is that right?
15 A That's correct.
16 Q The Advanced eBook Processor doesn't just
17 allow someone to make one copy of the eBook?
18 A It's technically impossible to limit number of
19 copies eBook made from the protected book. So if
20 you remove protection, there is no way to control
21 how that book would be used.
22 Q So my question, though, was the Advanced eBook
23 Processor allows -- does not just produce one copy
24 that the user could keep; is that right?
25 A It's produced exactly one copy per each
9
1 execution of the protection process.
2 Q But the copy is entirely unprotected?
3 A Correct.
4 Q It can be opened by anybody?
5 A Correct.
6 Q It could be copied as many times as one wants
7 to copy it?
8 A Correct.
9 Q You didn't design the program just to make one
10 additional protected copy?
11 A It's tech -- protected copy.
12 Q You didn't -- let me ask the question again.
13 You did not design the program to make
14 one additional protected copy that could be used by
15 the purchaser of the eBook?
16 A No. Because protected copy is the same as
17 original copy and they have no difference.
18 Q So the answer to my question is no, you did
19 not design it to produce one additional protected
20 copy?
21 A Correct.
22 Q You didn't design the Advanced eBook Processor
23 to allow people to just print several pages?
24 A I did not develop it in such way.
25 Q You didn't develop the Advanced eBook
10
1 Processor to just allow sight-impaired people to
2 use a text-to-speech program?
3 A That's correct.
4 Q During your testimony Mr. Burton played a
5 portion of your speech at DEFCON; is that right?
6 A Right.
7 Q You saw that?
8 A Yes.
9 Q Do you recall during that speech you spoke
10 about not making it public but instead making a
11 program?
12 A Not making information about how security
13 flows really could be exploded.
14 Q Now, you work in the area of information
15 security?
16 A Yes, I am.
17 Q Are you familiar with the concept of a bug
18 track?
19 A Yes, I am.
20 Q What is a bug track?
21 A As I understand, bug track is public lists
22 where every person that discovers some bug or some
23 security flaw could report and any other people in
24 world who read bug track or want to read bug track
25 could get this information from there.
11
1 Q So it would be fair to say bug track is a
2 public forum to discuss problems or errors in
3 programs?
4 A It's very close.
5 Q You didn't submit the information you'd
6 identified about the Adobe eBook Reader to a bug
7 track?
8 A That's correct.
9 Q Instead you submitted a program to Elcomsoft?
10 A It could be said so.
11 Q Instead Elcomsoft sold the program?
12 A Yes.
13 Q You spoke with Mr. Burton about the price for
14 the program?
15 A During his questions?
16 Q Yes.
17 A Yes.
18 Q Now, Mr. Sklyarov, you're a professor?
19 A I am assistant professor. I'm not a professor
20 yet.
21 Q So you're an assistant professor. You teach
22 students?
23 A That's correct.
24 Q Do you teach them in classes?
25 A In classes.
12
1 Q I'd like to speak to you about a hypothetical.
2 Let's say you're the professor and I'm a student
3 and let's say it's a class of 100 students. And
4 let's say you assign me some assigned reading and
5 the book you assign me is only available as an
6 eBook.
7 If there are 100 people -- and let's say
8 the eBook sells for $30. If I'm an unscrupulous
9 student and I wish to purchase one copy of the
10 eBook for $30 and apply the AEBPR program, your
11 program, to it, would I be able to give copies of
12 all of those eBook -- excuse me, would I be able to
13 give copies of that eBook to all of the other 99
14 students in the class?
15 A Technically, yes, but it would be illegal. It
16 would be your illegal actions.
17 Q But I could use the AEBPR program to do that?
18 A That's correct. You could use that program to
19 create unprotected copy, but you can't used
20 Advanced eBook Processor to distribute that copy.
21 You distribute it by yourself.
22 Q But without the Advanced eBook Processor
23 program I wouldn't have been able to make the
24 unprotected copy?
25 A That's correct.
13
1 Q And if I did that at a $30 book with a 100
2 students, if everyone bought the book, that would
3 be $3,000; is that right?
4 A If they bought, that's right.
5 Q And I could do that with a $100 program at the
6 time that Elcomsoft was selling the program, a $99
7 program?
8 A That's right. But you could achieve the same
9 task by less expensive way. Just print every page
10 from -- my screen shot of every page, print it and
11 it would be cheaper than $100.
12 Q So you're saying that I could sit at my
13 computer and take screen shot by screen shot and
14 print each page --
15 A That's correct, that's correct.
16 Q -- and then go to a copy shop and make 99
17 copies and distribute it to the other students?
18 A That's correct.
19 Q And that might be easier than spending 79 or
20 $99 to make an unprotected copy and e-mail it to
21 the other 99 students?
22 A It's depends on your relation with
23 copying technique -- copying machine. If it's free
24 for you, it's probably cheaper.
25 Q Now, Mr. Sklyarov, you spoke with Mr. Burton
14
1 about password recovery.
2 A Yes.
3 Q I'd like to show you an exhibit. First let me
4 see if the projector is on.
5 Yes. I just need a minute for this to
6 warm up.
7 I think we're just about warmed up. You
8 spoke with Mr. Burton about password recovery?
9 A Yes.
10 Q And you spoke about that in the context of the
11 password recovery software that you spoke about
12 first?
13 A Yes.
14 Q And then you spoke about the Advanced eBook
15 Processor?
16 A Yes.
17 Q Now, did Mr. Burton show you this diagram
18 before your testimony here today?
19 A Yes.
20 Q So you had an opportunity to go over it with
21 him before today's testimony?
22 A What is "going over"?
23 Q To look at and talk with him about what
24 questions he was going to ask you?
25 A No.
15
1 Q But you had a chance to look at it?
2 A I see his diagram without marks he added
3 during today's hearing.
4 Q Now, I'd like to show you what's been
5 previously admitted as Government Exhibit 3.
6 THE COURT: If you want the lights down,
7 you'll have to do it yourself. Let me show you
8 where.
9 MR. FREWING: I'm not sure I know where
10 that is, Your Honor, although I should know by now.
11 THE COURT: Come on around. Over on the
12 left. That round knob.
13 MR. FREWING: Thank you, Your Honor.
14 BY MR. FREWING:
15 Q Now, Mr. Sklyarov, I'd like to ask you what
16 the program was titled -- first of all, do you
17 recognize this document?
18 A This looks like web page of Advanced eBook
19 Processor from Elcomsoft web site.
20 Q That's right. It's been previously admitted
21 as such.
22 I'd like to ask you what is the title on
23 the top of the page for the program here?
24 A Advanced eBook Processor.
25 Q And that's not what it says on the
16
1 demonstration exhibit over here, is it?
2 A I suppose it's mistake.
3 Q You think it's a mistake that it says
4 "Advanced eBook Password Recovery"?
5 A Actually, as far as I know, eBooks not very
6 often use passwords.
7 Q eBooks don't use passwords, do they? Is that
8 right?
9 A That's right. Usually they are not protected
10 with password.
11 Q So to the extent that this case is about
12 eBooks, passwords aren't relevant, are they?
13 A The word "password" is not relevant, but the
14 process how PDF recovery and Advanced eBook
15 Processor works is relevant.
16 Q Now, if I were to use the Advanced eBook
17 Processor on an eBook and the process went -- I
18 selected my eBook and I ran your program against
19 it. At the end what's the very last message that I
20 would get from the program?
21 A I don't remember exactly. Probably "file
22 successfully deprotected."
23 Q Perhaps would it be "protection successfully
24 removed"?
25 A It's possible.
17
1 Q Mr. Sklyarov, I'd like to show you what's been
2 premarked as Government's Exhibit 57.
3 Do you recognize that?
4 A That looks like might be window for Advanced
5 eBook Processor after performing some decryption.
6 Q So that's the message one would get after
7 having run your program against an eBook?
8 A I think so.
9 Q And what's the last line that one sees?
10 A "Protection successfully removed."
11 MR. FREWING: Your Honor, I'd move
12 Government Exhibit 57 into evidence.
13 MR. BURTON: No objection.
14 THE COURT: 57 is admitted.
15 (Whereupon, Government Exhibit Number 57,
16 previously marked for identification, was
17 admitted into evidence.)
18 BY MR. FREWING:
19 Q Now, Mr. Sklyarov, that page doesn't say
20 "password successfully removed"?
21 A That is correct.
22 Q It doesn't say "now you can use your book with
23 a reader for the blind," does it?
24 A It does not.
25 Q Now, Mr. Sklyarov, in order to write your
18
1 program you became familiar with the Adobe eBook
2 Reader; is that right?
3 A That's right. Actually, I initially was
4 familiar with advanced -- I'm sorry, with Glassbook
5 Reader 1.0, Glassbook Reader 1.5, and after that it
6 was renamed and create new product called
7 advanced -- Adobe eBook Reader 2.0.
8 Q So you became familiar with each of those
9 products?
10 A Right.
11 Q When you developed your program you had to
12 become technically familiar with how those programs
13 worked?
14 A I find information -- during my research I
15 find information about how security handler in
16 eBooks protected with advanced -- sorry. Which
17 protected with Glassbook or eBook Reader words.
18 Q You tried those programs out?
19 A That's correct.
20 Q You examined them?
21 A I think so. I think yes.
22 Q Did you decompile them?
23 A No. They are too huge to be decompiled.
24 Q Did you look at how the code worked?
25 A Yes.
19
1 Q Did you take pieces of it apart?
2 A Which pieces?
3 Q The keys.
4 A Yes. I get some keys from advanced -- from
5 Glassbook or Adobe eBook Reader.
6 Q So you disassembled the program at least to
7 get the keys out?
8 A Disassembling and getting the keys is not very
9 close tied with each others. You could find keys
10 without disassembly program.
11 Q Did you have to take a portion of the program
12 or the key in order to make your program work?
13 A That's correct.
14 Q So you essentially adapt that key into your
15 program?
16 A No. Key is just some number of bytes and key,
17 usually key is random data. But this data should
18 be the same in -- in all programs that work with
19 the same -- with document of one type.
20 Q Maybe I'm getting hung up on some of the words
21 here. If we look at the Adobe eBook Reader as a
22 car, did you open the hood to look at the engine?
23 A A little.
24 Q Did you take any of the engine parts out?
25 A More close I get some oil or some gasoline
20
1 from that car.
2 Q So you took a little bit of the contents of
3 that car?
4 A Content but not content of car itself. It's
5 not -- okay. You could consider so.
6 Q So you did look at some -- did you take some
7 parts of the car and look at it and say that's how
8 that works?
9 A Yes, it is.
10 Q Are you familiar with the concept of reverse
11 engineering?
12 A A little.
13 Q Would you say that some of the work that you
14 did on the Adobe product was reverse engineering?
15 MR. BURTON: Your Honor, I'm going to
16 object on relevance.
17 THE COURT: I think it's relevant. I'm
18 not sure that we necessarily know you are using the
19 term the same way.
20 MR. FREWING: I'm using it as
21 Mr. Sklyarov understands the term.
22 THE COURT: Okay. But maybe he ought to
23 define what he means by "reverse engineering."
24 MR. FREWING: I was going to ask him that
25 next, Your Honor.
21
1 BY MR. FREWING:
2 Q What does "reverse engineering" mean to you?
3 A For me reverse engineering is process contrary
4 to engineering. Engineering is creating from ideas
5 and reverse engineering is understanding ideas from
6 ready product.
7 Q So looking at the product, for example, my
8 car, and looking at it and saying ah, that's how it
9 works; is that fair?
10 A That is correct.
11 Q Now, when you were looking at the Adobe eBook
12 Reader had you obtained it from the Internet?
13 A Yes.
14 Q And you downloaded perhaps from Adobe's site?
15 A Yes.
16 Q And you knew when you downloaded it that it
17 was subject to a license?
18 A Yes.
19 Q Just as the Elcomsoft product is distributed
20 with a license?
21 A Yes.
22 MR. BURTON: Your Honor, we -- can we
23 approach side-bar?
24 THE COURT: All right.
25 //
22
1 (Whereupon, the following side-bar
2 conference was held out of the hearing of the
3 jury:)
4 MR. BURTON: I mean, I assume that this
5 is going toward some evidence or some allegation
6 that Mr. Sklyarov violated the license. I think
7 that's 404(b). That's a bad act that's not
8 relevant in this case.
9 THE COURT: It seems to me that what he's
10 doing is going -- trying to develop evidence that
11 suggests Mr. Sklyarov's innocence isn't what it's
12 professed to be.
13 MR. BURTON: Well, that's true, but I'm
14 not sure why -- as to this program it's not
15 relevant that he did -- or that he --
16 THE COURT: But this has all to do with
17 developing the Advanced eBook Processor, isn't it?
18 MR. BURTON: Correct. But I'm not --
19 THE COURT: And if he violated a license
20 in doing so, doesn't that at least raise some
21 questions as to -- questions to whether he's acting
22 totally in good faith?
23 MR. BURTON: I don't believe so, Your
24 Honor.
25 MR. FREWING: I think it's directly on
23
1 point, Your Honor. Mr. Burton asked Mr. Sklyarov
2 about his views of the rights of people with
3 various types of softwares and eBooks and his view
4 of the law on some of these areas. And all I'm
5 trying to develop is whether Mr. Sklyarov's actions
6 speak as loud as his words.
7 THE COURT: I think it's fair game given
8 the direct.
9 (Whereupon, the following proceedings
10 were held in open court in the presence of the
11 jury:)
12 MR. FREWING: Could I ask the court
13 reporter to read the last question and whether
14 there was an answer. I've lost my place.
15 THE COURT REPORTER: "Question: And you
16 knew when you downloaded it that it was
17 subject to a license?
18 "Answer: Yes.
19 "Question: Just as the Elcomsoft product
20 is distributed with a license?
21 "Answer: Yes."
22 BY MR. FREWING:
23 Q Mr. Sklyarov, when you wrote the AEBPR program
24 and looked at the Adobe eBook reader you violated
25 the Adobe eBook Reader license, didn't you?
24
1 A I don't think so. Accord -- in fact, as far
2 as I know, according to Russian law, I have write
3 to reverse engineer any software for purposes of
4 compatibility and if license conflict with Russian
5 law, Russian law have priority.
6 Q Now, Mr. Sklyarov, you've spoken about the law
7 during some of your testimony with Mr. Burton as
8 well and your understanding of it. You're not a
9 lawyer, are you?
10 A I'm not lawyer.
11 Q You're not a lawyer in Russia?
12 A That's correct.
13 Q You're not a lawyer here in the United States?
14 A For sure.
15 Q You're not Elcomsoft's lawyer?
16 A Not.
17 Q So your testimony is that you don't believe
18 you violated the license from Adobe?
19 A Probably I violate license from Adobe.
20 Q But now you believe you probably did violate
21 the license from Adobe?
22 A Repeat your question, please.
23 Q Do you believe that you violated the license
24 from Adobe?
25 THE COURT: The question really is at the
25
1 time he was working.
2 MR. FREWING: I'm sorry, Your Honor.
3 That is the more relevant question.
4 BY MR. FREWING:
5 Q At the time that you developed the AEBPR
6 program while analyzing the Adobe eBook Reader, do
7 you believe you violated the license with Adobe?
8 MR. BURTON: Objection. Asked and
9 answered.
10 THE COURT: Overruled. Because I'm not
11 sure that the answer was clear as to what he was
12 saying. And no fault of his. I'm just not sure it
13 was clear.
14 MR. FREWING: I agree, Your Honor. Part
15 of it is my fault for getting distracted here.
16 THE WITNESS: Probably I'm not quite
17 clear to understand your previous question. I
18 believe that working in country which allows me to
19 reverse engineer for purposes of compatibility
20 doesn't violate license that directly prohibits
21 reverse engineering.
22 BY MR. FREWING:
23 Q Even though you obtained that software from
24 Adobe in the United States?
25 A That's correct.
26
1 Q You don't believe you're bound by the laws of
2 the United States?
3 MR. BURTON: Objection, Your Honor.
4 Irrelevant.
5 THE COURT: Well, I'm not sure it's
6 irrelevant. I think it's a little bit
7 argumentative, but I think a little bit depends on
8 what you're asking him what he's doing, whether
9 he's doing some development work in Russia or
10 whether he's distributing in the United States,
11 what exactly the conduct is.
12 MR. FREWING: Let me rephrase, Your
13 Honor. And maybe I can respond to the objection a
14 little bit, too.
15 Mr. Sklyarov said that he did not believe
16 that reverse engineering in Russia violated the
17 law. He didn't think he was barred from that. My
18 understanding was that I then asked whether or not
19 he had obtained a program from the United States
20 from Adobe.
21 THE COURT: All right.
22 BY MR. FREWING:
23 Q Mr. Sklyarov, you obtained this program from
24 Adobe?
25 A That's correct.
27
1 Q And Adobe is in the United States?
2 A That's correct.
3 Q And Adobe distributes the software pursuant to
4 a license?
5 A That's correct.
6 Q And you didn't believe you were bound by that
7 license in Russia, did you?
8 A I believed that if -- license is not
9 accordance -- in accordance with Russia law.
10 Russian law have priority.
11 Q Even though you downloaded that license with a
12 software program from Adobe in the United States?
13 A I think so.
14 Q Even though Elcomsoft distributes its software
15 with a license that states that it's subject to US
16 copyright law?
17 A I -- I am not a lawyer, as you noted earlier,
18 and I'm not very familiar with Elcomsoft
19 distribution license in terms of legality and such
20 things.
21 Q Isn't it true that when you wrote this
22 software you didn't care whether it violated the
23 law in the United States?
24 A That's true.
25 MR. FREWING: I have no further
28
1 questions, Your Honor.
2
3
4 ---oOo---
5
6
7