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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- September 8, 1993 LARRY E. JAMES, Defendant. ------------------------------------ TRIAL BEFORE THE HONORABLE JOHN T. ELFVIN UNITED STATES DISTRICT COURT JUDGE APPEARANCES: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, New York 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording. Transcript produced by transcription service. P R O C E E D I N G S THE COURT: On the record. (RICHARD E. GRAHAM, Plaintiff, Previously Sworn.) CONTINUED CROSS EXAMINATION BY MR. OSTROWSKI: Q. Good morning, Mr. Graham. A. Good morning, sir. Q. Did you tape any of your phone conversations with Mr. James? A. Yes, sir, I did. Q. How many? A. Two. Q. Why did you do that? A. It wasn't my idea. It was Greg Armenia's idea. THE COURT: It was whose idea? THE WITNESS: Greg Armenia's. BY MR. OSTROWSKI: Q. Whose idea was it? A. Pardon? Q. Whose idea was it? A. It was Greg Armenia's. Q. Okay. Now that we've, I've asked you the question you didn't answer, hopefully you can answer the question that I asked, which is; why did you do that? A. Greg Armenia suggested to me that I tape the conversation. Q. Were you trying to trap him? A. No, sir, I was not. Q. Trying to get something on him to use -- A. I wanted information -- Q. I'm sorry? A. I wanted the information I needed to have. Q. And of course you told Mr. James he was being taped? A. No, I did not. Q. For use in litigation? A. No, I did not. Q. And you led him to believe that it was a personal conversation between yourself and him? A. Yes, sir. Q. And that was not true, was it? A. What's that? Q. That it was not simply a conversation between yourself and he, that other people were listening? A. It was being taped by Greg Armenia, so I'm not sure if he could have heard what he was taping through his device, if he could have heard the conversation. I do not know. Q. Well, that's, that's not true, isn't it? You know he heard? A. I do not know he heard. He listened to the -- Q. You do not know? A. No, I don't. Q. Oh, really? A. No, I don't. Q. Well, wasn't he whispering suggestions to you -- A. No, he was not. Q. -- about what to ask Larry over the phone? A. No, sir. Q. Okay. A. I knew what I wanted to ask Larry. Q. Didn't need any coaching from Greg Armenia? A. No, sir. Q. But you got it anyway, didn't you? A. Oh, he suggested, but his suggestions, you can't hear when you're talking to a person on the phone, somebody talking in your other ear. Q. Well, it's audible on the tape, isn't it? A. What's audible on the tape? Our con -- me and Larry's conversation? Q. His suggestions, his suggestions to you about what to ask? A. No, sir. Q. Oh. A. Not that I know of. Q. Okay. Did you see a Subpoena for phone conversations for this trial? A. They were turned over to my attorney. Q. Every conversation? A. Both phone conversations. Q. Well, that's not true, is it? There's actually other conversations, aren't there? A. There is no other conversations that I'm aware of. Q. Are you positive? A. That I'm aware of, no. Q. You -- A. That I do not have any tapes in my possession of Larry James. Q. Well -- A. Except them two tapes that you have. Q. Is there any other tape recordings that you made that pertain to this -- well, pertain is one of those lawyer's words -- A. No, sir. I did not tape any other conversation. Q. -- that have anything to do with this case? A. No, sir, I do not. Q. How about a tape recording with Ralph Markwardt? A. I remember no conversation with Ralph Markwardt. Q. Do you deny that there is such a tape? A. I don't deny it. I never taped Ralph, if that's what you're asking me. Q. Did you have any knowledge of such a tape? A. I have no knowledge of such a tape, to my recollection. Q. Now, regardless of what your purpose was in taping Mr. James, you didn't really come up with anything of value, did you, on those tapes? A. I come up with the answer I needed. Q. Well, he never denied that he owned the program, did he? A. He never admitted he did. Q. He refused to take the copyright notice off? A. He refused to take the copyright notice off. Q. One of those conversations was a late night conversation, wasn't it? A. To my recollection, yes, it was. Q. And you essentially woke him up, is that correct? A. To my recollection, I think he was tired, yes. Q. And he asked you to call him back? A. I can't remember, sir. That was two years ago. Q. In spite of the fact that he was tired and you had woken him up, the conversation went on for a real long time, didn't it? A. Yes, sir, to my recollection. Q. And you never got any valuable information out of him, did you? A. I got answers to my questions. Q. Did you ever have a conversation with Ralph Markwardt over the phone about this case? A. I talked to Ralph Markwardt, yes. THE COURT: Have you heard a recorded conversation? THE WITNESS: No, sir. I have not heard a recorded conversation. BY MR. OSTROWSKI: Q. Have you had a telephone conversation, whether it was recorded or not? A. I've had a lot of phone conversations with Ralph. Q. Was there ever a conversation that ended up with -- well, was there a conversation in which he essentially agreed to help you out in the lawsuit? A. No, sir. Q. Okay. Was there a conversation in which, after discussing the lawsuit, he asked you for some piece of computer equipment? A. No, sir. Not to my recollection. Q. Well, what is this, not to my recollection? Is it no or yes? A. First off, I have to know what you're talking about a computer part. Q. Well, any part? A. I've given Ralph a lot of parts, but it had nothing to do with this. Q. Well, what parts have you given Ralph? A. I've -- well, a CD ROM drive. He won that on a BBS contest. Q. Well, so you didn't give it to him, he won it? A. No. I didn't give it to him, he won it, right. Q. It's his property? A. Right. Q. How did he win it? A. He won it on -- he was the best uploader for that month, for a three month period. Q. And who decided that? A. Our bulletin board service. Otherwise, he had so many K bytes, he had so many programs he uploaded, he won the contest. Q. Well, it's your bulletin board service, isn't it? A. Right. Q. You're the boss? A. Right. Q. What else did you give him? A. Give, I can't remember giving Ralph really anything. He bought a US Robotics off us. Q. Well, you just said you had given him lots of things, and now you're saying you haven't given him anything. Which is it? A. I've given him files when he wanted to do his own disks. We gave him tapes of files. Q. You gave him tapes of files? A. We didn't charge him for them, right. Q. I'm sorry. I didn't hear you. A. We didn't charge him for that, right. Q. How much was that worth? A. How much were they worth? Q. Yeah. A. Well, if we were paying $50 a tape and we gave him the tapes. Q. How many tapes? A. Four tapes, I think. Q. So that's $200 worth of tapes? A. Right. Q. How much is the CD ROM drive worth? A. CD ROM drive was worth $565. Q. How much cash have you given him? A. Well, you know, you're going, taking all this stuff -- MR. OSTROWSKI: I object, Your Honor. He's not answering the question. THE COURT: Answer the question. THE WITNESS: What was the question? BY MR. OSTROWSKI: Q. How much money have you given Ralph Markwardt? A. Ralph Markwardt's worked on my files. He -- I don't know. I know I paid him some money for working on our DIR's. Q. How much, do you know? A. No, I don't. I'd have to go to my records. Q. Now, who's Greg Armenia, just for the -- since it's a new day. He came up yesterday. Who's Greg Armenia? A. Greg Armenia is Greg Armenia. Q. Well, how does he know you, and so on? A. He knows me through the bulletin board. That's where we first was introduced. Q. Did he ever work for you? A. He tried to come to work for us, yes. Q. And you're no longer in touch with him, I take it? A. The last two years, that's correct. Q. Why not? A. Because he walked out of my place one day and never came back. Matter of fact, it was -- want me to finish? Q. Yeah. A. -- the day of this hearing. The day of this first hearing. Q. He came to the hearing with you, didn't he? A. Yes, sir, he did. Q. As a potential witness? A. Yes, sir, he did. Q. And he didn't testify? A. No, sir, he didn't. Q. And then you haven't seen him again? A. No, sir, I haven't. Q. Did you have any discussions with Greg Armenia about this C.A.R.R.S. business, or CARR, whatever it is? A. No, I did not. Q. You never told Greg Armenia that you forced the owner of C.A.R.R.S. to sign over ownership of the company? A. No, I did not. They didn't sign it over to me. They signed it over to his partner, a Lou Manze. COURT RECORDER: Lou who? THE WITNESS: Lou Manze. BY MR. OSTROWSKI: Q. Did you ever tell Greg Armenia that you and Lou forced the owner to sign over ownership? A. No, we did not. Q. You never bragged about that to Greg? A. No, we did not. Q. Okay. Did you ever have any discussions with Greg about paying Larry a dollar a disk for -- A. No, I did not. Q. Well, I'm not finished with the question. Paying Larry a dollar a disk for every disk you sold or distributed which had his program on it? A. No, I did not. Q. Absolutely not? A. Absolutely not. Q. In fact, isn't it true that Greg tried to talk you out of paying Larry a dollar a disk? A. Greg never tried to talk me out of anything. Greg tried to talk me into things, but never talked me out of anything. Q. Okay. So it's not true that he tried to convince you not to pay Larry a dollar a disk? A. It's not true. Q. Did you ever tell Greg that Jeff Anderson wrote the initial program? A. Yes, I did. Q. What's your educational background? A. I got a diploma. Q. From where? A. From Sanford, Florida. Q. I'm sorry? A. Sanford, Florida. Q. Is that high school? A. It's a GED, no, it's a GED. Q. Okay. No college? A. No, sir. Q. How would you describe your writing skills? A. Not the greatest. MR. KITCHEN: I'll object to the relevancy, Your Honor. MR. OSTROWSKI: I think it's very relevant. He's claiming he's an author of a computer program, which is more complicated -- THE COURT: It has relevancy. BY MR. OSTROWSKI: Q. Did you ever work with Larry James on improving your writing? A. No, sir, I have not. Q. Now, you stated at some point that -- well, let me just ask you, did you get calls complaining about Larry James having a copyright notice on your programs? A. Yes, sir, I did. Q. From who? A. Fred Bellamy in California. Q. Who? A. A Fred Bellamy, a Peter Papilion. He's also in California. Wendel, which is actually Wendemere Software. He's in Virginia. Q. Anybody else? A. To my recollection right now, yes. Q. Who? A. Pardon? Q. Who? A. I just told you the three names. Q. Just the three? A. Yes. Q. And did you ever get any calls of anybody complaining about Folio's copyright notice? A. No, none. That was an actual copyright. What was written on my screen was not a copyright. Q. Well, that's what we're here to determine, isn't it? A. Yes, sir. Q. But Fred Bellamy wouldn't know what an actual copyright is compared to a non-actual one, would he? A. Well, if he's been in business for 30 years, I think he'd know. Q. You think he'd know? A. I think he'd know. He's a publisher. Q. Just by reading copyright Larry James, he'd know that that was no good? A. Yes, I think he would. Q. Okay. And by looking at copyright Folio he would know that that was good? A. Yes, he would. Q. Okay. Why? A. Because he knows that's sold under a license agreement. Just the way Folio writes their license agreements up tells you that. Q. And he had some intimate knowledge of the agreement between you and Mr. James, I take it? A. He knows of it, yes, he does. Q. What was his complaint about Larry James having a copyright notice? A. Well, he's asking whose program it was. Q. I'm sorry, I can't hear you. A. He was asking whose program it was. Q. What was his complaint? A. His complaint was that I'm claiming the copyright, but yet it shows that it's being copyrighted by two different people. Q. Well, let's step back here. You're saying, you initially stated, either at the preliminary hearing or in your papers or earlier in the trial, that you got calls complaining about Larry's copyright notice, and that's -- MR. KITCHEN: I'll object, Your Honor. That was not -- THE COURT: Please, now, don't educate the witness. MR. OSTROWSKI: He's already stated on cross that that's in fact what happened. MR. KITCHEN: That's patently false. THE COURT: Please. I'm just telling Mr. Kitchen to make legal objections and not to be speaking by way of educating the witness. MR. KITCHEN: Well, Your -- THE COURT: Or otherwise fulminating. MR. KITCHEN: Well, Your Honor, at the risk of fulminating, the, even cross examination, the cross examiner should not be allowed to make patently false statements. THE COURT: Why not? Sometimes it's a very good cross examining tool. MR. KITCHEN: Well -- THE COURT: Nothing that Mr. Ostrowski says is evidence. MR. KITCHEN: True. True enough, Your Honor. But he -- THE COURT: If the witness responds in a way that's helpful to the defendant on such a misleading question, that's what the defendant wants. That's -- you have a redirect examination to straighten it all out. MR. KITCHEN: Your Honor, this is all very understandable if cops are interrogating some witness, giving him the third degree, but -- THE COURT: No, no, no, no. This is courtroom procedure. We can do more in cross examination than a policeman can in interrogating a defendant. MR. OSTROWSKI: Let the record reflect that is the fourth rescue mission. MR. KITCHEN: I object to the characterization, Your Honor. MR. OSTROWSKI: He did it in the preliminary hearing. Had -- THE COURT: Well, I know. This is -- MR. KITCHEN: I object to the characterization. THE COURT: I know. It's the second time that he's used this allusion and it would be very persuasive if we had a jury, but it's not with this trier of fact. MR. OSTROWSKI: I'm sorry, Your Honor. BY MR. OSTROWSKI: Q. Okay. Did you testify at the preliminary hearing that what started this controversy was that you got complaints about Larry James' copyright notice? A. Yes, sir. Q. Now, is this the C version? A. That was the C version, yes. Q. Okay. And that, is that the version that stated, by Larry James -- copyright by Larry James and Richard Graham, written by Larry James, collaborated by Richard Graham? A. No, sir. That's the Quick -- THE COURT: Excuse me? THE WITNESS: No, sir. That's the Quick Basic code. BY MR. OSTROWSKI: Q. I'm sorry. You are correct. Let me skip on. Okay. Is that the one that stated, copyright C, capital C, April 16th by Larry -- well, same one. Okay. Is that the one that said, I'm sorry, copyright by Larry James for the Night Owl Computer Publisher? A. Yes, sir. But I don't think it was Computer Publisher. I'm not sure exactly what the screen said, but I know it said for. That's what I was looking at. MR. OSTROWSKI: I'm sorry. Where are the Exhibits? THE COURT: As to keeping Exhibits, until and after the matter has been submitted, you keep your own Exhibits. MR. OSTROWSKI: I'm used to State Court, Your Honor, but it probably makes more sense, as usual. THE COURT: Well, I doubt that it makes more sense. It's just the way we do it in our peculiar fashion here. And more than that, it's the way Judge Elfvin does it, and Judge Arcara may do it completely differently. BY MR. OSTROWSKI: Q. What did the copyright notice say, to the best of your recollection, on the C version of Larry James? A. I think it said -- I think it said, copyrighted by Larry James for Night Owl Computer Service, or Publisher, you may -- I'm not exactly sure on that last word. But it was the word for. He was copyrighting it for Night Owl. The way it read, and that's the way I took it. Q. Okay. So at the time you got these calls, there was no claim of copyright by Night Owl? A. The code has always been figured to be Night Owl's anyway. Q. I'm sorry. I couldn't hear that. A. The code has always been thought to be Night Owl's anyway. Q. Was the code always thought to be Night Owl's anyway? A. He wrote it for Night Owl's for pay, yes. Q. Now that we've answered that question, can you answer the question that I asked. At the time you got these calls complaining about the copyright notice, there was no claim of ownership by Night Owl. It was Larry James? A. No, sir, it was not. That's not correct. Q. Well, you say that it says by Larry James for Night Owl? A. That says that on there, but go back to PDSI-004. What's it say? Q. You're cross examining me now? Let me just ask you questions. Is there, is there any -- well, again, let me ask you again, at the time you got the calls complaining about Larry James' copyright notice, was there any claim of ownership of that, on that CD ROM by Night Owl? A. The claim was the retrieval, the Night execute, yes. Q. Where was the claim? A. The claim is in the program itself, Night execute, that's my copyright. My copyright was the source code from the Quick Basic right on to the C. Q. You had a copyright notice in the program that Larry James did for you? A. In the Quick Basic code, yes, we did. Q. No, I'm talking about the C program? A. Well, no, because he didn't put it in. Q. That's what we've been talk -- pardon me? A. No, because he didn't put it in. Q. Well, so you got a call from somebody complaining about, that there were two copyright claims on the same program, but in fact there's only one copyright claim, Larry James? A. No. That's not what I said. Q. Well, tell me the truth. A. We got calls, we got calls from the Quick Basic code. There was two discrepancies. Who owns the code? We told our customers that we owned the Night Owl retrieval. Then version whatever came out with that on it. Then they asked, well, whose program is it. I says it's ours. But they said, it can't be. It says copyrighted to Night Owl -- or, copyrighted by Larry James for Night Owl Computer Service or Publisher. Q. Regardless of who owned it, they would still be able to use the program, isn't that correct? A. Well, yes, they'd be able to use it. Q. Still fire up the computer? A. Yes, sir. Q. Okay. So it really didn't make any difference to them at all, did it? A. No. It didn't make a difference as far as the program working. Q. But you still got several calls complaining? A. Well, of course. If you're dealing with a person, you tell them something, and they come back and say, well, geez, now you don't own it. Q. Well, the truth is that you got calls because you were telling people that you owned the program? A. Yes, sir, I did. Q. And Larry James had the copyright notice. THE COURT: Wait a minute. Wait for the question. BY MR. OSTROWSKI: Q. The reason why you were getting calls complaining is because these were friends of yours, right? A. No, sir. Q. You knew them? A. They were business. Q. Well, okay. They were associates? A. Business, what, dealers, you know, I guess you could say associates. Q. Then they complained because you had told them that you owned it, and they see a copyright notice by Larry James? A. Yes, sir. THE COURT: These were dealers with whom you had been doing business? THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q. So they didn't call you. You called them? A. No, sir. Q. Okay. So they just read your mind, thinking that you thought that you owned it, and then they called you and said, hey, Mr. James, I see -- or, Mr. Graham, I see the notice, and I've read your mind, and I'm complaining now. Is that what happened? A. No. You go back to PDSI-002, what comes up, copyrighted by Richard Graham. Q. Okay. A. Night Owl Computer Service. Q. Well, you can go back to that version, but -- A. That's where they started dealing. Q. -- I'm asking the questions. That's not what I asked you about, and I've exhausted that line. Now, did you tell Greg Armenia that you encouraged Larry to keep the copyright notice in his program? A. No, I did not. Q. Now, isn't it true that your real complaint was about the fact that he had a Compuserve number in there? A. No, sir. It is not the complaint. Q. Okay. And that you told Mr. Armenia that that was your real complaint -- A. No, sir, I did not. Q. -- that I just want him to take the -- now, during a lot of this time, Mr. Armenia was fielding your phone calls, is that correct? A. The only two I'm aware of is the two phone calls I said. Q. No, I'm not talking about that. I'm talking about phone calls generally to your office. He was taking care of quite a few of them, wasn't he? A. No, sir, he was not. Q. He never answered the phone for you? A. He answered the phone before, yes. Q. Well, how often? What percentage of the time did he answer the phone, say from, in July, August and September of '91? A. July, August and September, none. He wasn't even at my house then. Q. By the way, where was your office at that time? A. 219 Potomac Avenue. Q. Where? A. Buffalo, New York. Q. And when did you move? A. I moved in August of 1992. Q. Did you ever tell Greg Armenia that Larry's going to run out of money to defend this lawsuit? A. No, I did not. Q. Weren't you surprised that Larry even showed up in Court? A. No. He brought the claim. Q. He brought the claim? A. The counterclaim, yes. Q. Weren't you surprised that he showed up in Court? A. No, sir. Q. And you didn't tell Greg Armenia that Larry would run out of money and he'd go away? A. I haven't talked to Greg Armenia. Q. Did you tell Jeff Anderson after the preliminary hearing that this case was over? You won, he lost? A. No, I did not. Q. Did you ever claim ownership of either of the two programs that Larry worked on to Greg Armenia? A. Repeat that, please. Q. Did you ever tell -- well, let me say, let me ask you this. When did you have the falling out with Larry James? Is that late September? A. Which one? Q. Well, you said he left, the last time he left your office or home? A. The last time was September 24th, I think. Q. Okay. THE COURT: What month? THE WITNESS: September 24th. BY MR. OSTROWSKI: Q. Now, prior to September 24th, did you ever tell Greg Armenia that, it's my program, not Larry's? A. No, Greg Armenia told me that. Q. Okay. I'm not asking you what he told you, because I can't. I'm asking you what you told him? A. I never had any doubts it was my program. Q. Okay. We know that, but can you answer the question? A. I did not -- Q. Did you ever tell him that you owned the program, prior to the falling out with Larry James on September 24th? A. No, sir. Q. You did not tell Greg Armenia that, it's my program, Richard Graham's program? A. To my recollection, no. Q. Okay. But after September 24th, you did tell him, didn't you? A. Greg knew the whole story. Q. We know. But did you tell him that you owned the program after September 24th? A. I don't think I've had to make that statement to him. I can't recollect if I ever made that statement, no. Q. You brought him to Court as a witness, didn't you? A. Yes, sir. Q. And you never told him that it's your program? A. I told him the situation, what went on, and he told me what to do about it. Q. You never told him it was your program? A. I told him how the situation was. He told me what to do about it. Q. Did you ever tell him it was your program? A. I told him what I just said three times in a row. He told me it was my program. Q. Did you ever tell Ralph Markowicz on a taped phone call, quote, you know I always take care of you? A. No, sir. I do not recollect any phone call by Ralph and myself being taped. Q. Well, is it no, or is it, I don't remember? A. It's no, I have no idea of no taped conversation. Q. Well, I don't know what you mean when you say you have no -- well, okay. Let's assume that it was not taped, or let me ask a new question. Did you ever tell Ralph Markowicz on the phone after he asked you about getting a 210 megabyte hard drive -- A. Say that again. Q. A 210 megabyte hard drive? A. No, sir. I do not recollect anything about that either. THE COURT: 210 what? BY MR. OSTROWSKI: Q. Is there such a thing? THE COURT: 210 what? THE WITNESS: There's a 210 mega -- yes, sir. BY MR. OSTROWSKI: Q. Meg, is it -- it's megabytes, isn't it? A. It's 200 meg hard drive, yes, sir. Q. Okay. My abbreviation is off. He never asked you for a 210 megabyte hard drive? A. Not to my recollection. Q. That's a whopper, isn't it? A. That's big, but not that big. Q. I mean, the average person, even today, would buy, say a 40 or 60? A. No, sir. That's incorrect. Q. I guess I'm out of date then. I got a 20 myself. A. It's 120 meg hard drives today. Q. Okay. Well, this is 1991. That was a pretty big hard drive for that time? A. Not really. It was, oh, yeah, it was bigger than the normal. Q. And did you ever say to Ralph, don't worry, I'll take care of you? A. No, sir. Never to my recollection. Q. And that's not on tape anywhere? A. As far as I know. I have no idea. I never made no tape. Q. Now, isn't it true that in July and August you saw the copyright notice of Larry James and you never complained about it to Greg Armenia? A. Greg Armenia was not even in my phone conversations in June and July. Q. July and August I'm talking about? A. July and August, no. Q. You never saw him in July and August? A. Let me think. Q. I'm sorry. I couldn't hear that. A. I've got to think. No, sir. I don't think I met Greg Armenia in July or August, to my recollection. THE COURT: You mean, you had not met him by that time, or you didn't see him during that period? THE WITNESS: I had not met him personally, face to face, at that time. THE COURT: During that period? THE WITNESS: During that period. THE COURT: Had you known him earlier? THE WITNESS: No, sir. I had -- THE COURT: All right. THE WITNESS: Before, right, before July or August, I don't think I have ever met Greg. THE COURT: All right. BY MR. OSTROWSKI: Q. Now, you started copyrighting stuff before the falling out with Larry James, right? A. Yes, sir. Q. Did you tell him that you were doing that? A. Sure did. Q. Now, was there some equipment that you derived from the C.A.R.R.S. business, or took over? A. Did I derive something from the C.A.R.R.S. business? Q. Did you take, take over some equipment that had been in this C.A.R.R.S. business? A. There was a VGA monitor and a 1.2 gig hard drive, yes. Q. And you said that was yours? A. That's right, it was mine. Q. You paid for it with your own money? A. I did not pay for it. They owed me $2,000. That was given me by the owner of that corporation before he resolved it. Q. Was that in that document that he signed under duress? A. There was two documents signed under duress. MR. KITCHEN: Your Honor, I'm going to raise an objection to this whole line of questioning about the takeover of C.A.R.R.S., on relevancy grounds. MR. OSTROWSKI: It's a prior bad act. MR. KITCHEN: It's not related to this lawsuit at all. There's no party in this lawsuit who's from C.A.R.R.S. complaining about what happened to the business when it dissolved, and I object to the, the whole area. MR. OSTROWSKI: It's a prior bad act. THE COURT: Does it have any relevancy, Mr. Ostrowski? MR. OSTROWSKI: I believe it's a prior bad act. I have talked to several -- THE COURT: What? MR. OSTROWSKI: I believe it's a prior bad act. THE COURT: All right. MR. OSTROWSKI: It demonstrates his character. THE COURT: It's not relevant. Matters that have to do with credibility of the witness are one thing, but so-called earlier bad acts, we're not trying the business character of Mr. Graham generally. MR. OSTROWSKI: Well, Your Honor, if I may be heard. We do have a claim for punitive damages. We have a claim for -- THE COURT: In this episode, but it don't go back to what he did when he was two. BY MR. OSTROWSKI: Q. Now, going back to -- how did you first meet Larry James? A. I think to my recollection it was at a meeting of the Tandy users group. Q. And what was he doing at the meeting? THE COURT: Your recollection, what? THE WITNESS: At a Tandy users group meeting. It's a computer club. THE COURT: Where? THE WITNESS: Computers users group. THE COURT: Where? THE WITNESS: Oh, at that time, I think it was above, at the college over there on Main and Bailey. BY MR. OSTROWSKI: Q. What was he doing there? A. He was a user. Q. And did he help you set up a, a bulletin board? A. Yes, sir. Q. Did he help you increase your knowledge of computers and programming? A. Not really. Q. No? A. No. Q. How would you compare your skill at computer programming with Larry's? A. I'd say Larry's is excellent. Q. And compared to yours? A. I never claimed to be a computer programmer. Q. So he's a substantially better programmer than you? A. Definitely. Q. When did Larry become your employee? A. Employee as to when he started writing. THE COURT: When was that? THE WITNESS: I believe when he first started the original code, back in March of '91. BY MR. OSTROWSKI: Q. Was Folio your employee at some point? A. No, sir. They were never my employee. MR. OSTROWSKI: Can I just clarify, Your Honor? I heard reference to eight checks. Are we, are we still working with five? MR. KITCHEN: No. THE COURT: Five checks. MR. KITCHEN: It's five. That was a mistake on my listing of the Exhibits. MR. OSTROWSKI: Okay. MR. KITCHEN: It has always been five checks. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Okay. Now, the first check you wrote to Larry -- THE COURT: Is it Plaintiff's Exhibit 12? BY MR. OSTROWSKI: Q. -- Plaintiff's Exhibit 12, it's -- what's the date on that? A. July 19th, 1991. Q. I think one -- some of those checks are out of order. Could you just check all the Exhibit and determine that that's the earliest one? THE COURT: Now, yesterday you said that first one was the 18th. Earlier on the other hearing it had been the 19th. Now you're saying it's the 19th. Which is it? THE WITNESS: Stated on the check, the 18th. THE COURT: 18th. THE WITNESS: I'm -- 19th, Your Honor. THE COURT: 19th, all right. THE WITNESS: Sorry. BY MR. OSTROWSKI: Q. So the first check is July 19th? A. I'm going through and make sure that was, July was the first, yes, sir. Q. Okay. So he was your employee in March, correct? A. Yes, sir. Q. But you didn't pay him any money? A. That was done with a hard drive and -- or, hard drive, perstore cards. THE COURT: Hard drive and what? THE WITNESS: A perstore, hard drive controller. THE COURT: Yeah, but what was the cards? THE WITNESS: P-E-R-S-T-O-R-E, a CD ROM disk and a CD ROM drive. BY MR. OSTROWSKI: Q. Now, he did the programming on his, his own computer, is that correct? A. Yes, sir. Q. And in his own, to some extent, while he was driving a cab? A. Which code are we talking about, sir, or date? Q. Well, let's talk about the Quick Basic code, the first program he did for you? A. Quick Basic code, he did in his, in his home, in his cab. Q. Now, in -- with reference to March '91 and the work he did on the Quick Basic code, did you, you didn't pay him any money, is that correct? A. That's correct. Q. And you didn't withhold any taxes? A. If I didn't pay him anything, I couldn't hold taxes. I know. Q. Did you take out, did you register with Workers Comp for Larry as your employee? A. No, sir, I did not. Q. Did you register with -- A. No, sir, I did not. Q. -- Social Security? A. No, sir. Q. Unemployment insurance? A. No, sir. Q. Didn't register with anything or anybody? A. No, sir. Q. In case I'm leaving anything out. Okay. With respect to the, with respect to the work he did on the C program, when was that, when did he do that work? Start, finish, and so on? Well, let me just ask. He came to you and said that, I know C now? A. Yes, sir. Q. And when was that? A. It was after April because our version was out, so it had to be, I'm trying to use memory, April -- May or June, that he had learned C. Q. Are you consulting your notes? A. My version of disk that I put out, I go by versions, I can roughly put when he programmed in what product. Q. Okay. Well, that's fine, but can you say when he started to work on that? A. On the source code for C. Q. On the C, on the C version of the file retrieval system? A. That could be May, June or July, because the first code we had was July 31st, '91, in C. Q. Okay. When did he give you the code that was done? A. The code was, the disk was 8/31/91 -- or 7/31/91 was the complete code date. The disk was cut 8/2 of '91. That was PDSI-004-1. Q. Okay. And so he gave -- now, would he give that source code to you or to the manufacturer on -- A. No, sir. He gave me the execute. I did not have the source code, but that's the date on the execute file. Q. That's the date you got it? A. Yes, sir. Q. And he had been working on that for two, three months? A. To my recollection, yes. Q. Okay. So in that two, three months that he was working on this, up till July 31st, when, when he was done, you gave him $200? A. That's what he requested, yes. THE COURT: Excuse me? THE WITNESS: That's what he requested. BY MR. OSTROWSKI: Q. And what was the, what was the agreement with you, between you and Larry, on how he would be compensated on the C version? A. There was no discussion on compensation on the C. Q. But you just said he requested $200? A. Yes, sir. Q. He just out of thin air asked you for $200? A. Yes, sir, he did. Q. And that wasn't part of a dollar a disk or -- A. No, sir, it was not. Q. -- a thousand dollars per each release? A. No, sir, it was not. Q. Okay. Well, giving him $200 is consistent with such an agreement, isn't it? A thousand dollars per release and one dollar for each one sold? A. That was never mentioned. Q. Is giving him $200 consistent with that agreement? A. No, sir, it's not. Q. As a down payment? A. He didn't ask for it. Q. As a down payment? A. No, sir. He asked for $200, he got $200. Q. Okay. Well, the release hadn't actually been -- the release hadn't been issued yet as of 7/19 when you gave him the money? A. 7/19, no, sir, it was not. Q. Okay. But as of the date -- well, that's asked and answered. And where did Larry do the work on the C program as opposed to the Quick Basic version? A. He did that code in July. That was done in his cab, as far as I know, and at home. Q. Well, when you say he did it early in July, is it possible he completed the program before July 19th when you gave him $200? A. Yeah. It could be, sir. I don't know. I have no idea, knowing what Larry says. Q. And he did it in his cab and at home? A. Yeah. As far as I know. Q. And you've already testified that they are substantially similar, the Quick Basic and the C? A. Yes, sir, they are. Q. And there was just a translation from one language to another? A. That's what I'm saying, yes, I am. Q. Like English to Russian? A. That's what I'm saying, yes. Q. Now, with respect to the copyright notice on the Quick Basic version, I believe you stated that you saw that about a week after it came out? A. Yes, sir, I did. Q. Okay. A. Roughly a week. I'm not positive exactly, the exact moment that it was brought to my attention. Q. And when did you become aware that he, that he had a copyright notice on the C version? A. I think probably just before I went to press. MR. KITCHEN: I'm sorry. I didn't hear that. THE WITNESS: I think it was in July, just before I went to press. BY MR. OSTROWSKI: Q. In July? A. Yes, sir. I think. I'm not sure. Q. Before you went to press? A. Yes, sir. Q. And you went to press -- A. On the C version, yes. Q. And you went to press knowing that he had a copyright notice on it? THE COURT: To press? THE WITNESS: Remanufacture. What was that, sir? BY MR. OSTROWSKI: Q. You went to press knowing that he had a copyright notice on it? A. Yes, sir, I did. Q. And that came out on, it actually got back to you from the manufacturer on August 2nd or thereabouts? A. Well, it was cut August 2nd, so we'd probably get it back maybe eight, nine days later, depends how, you know, sometimes it's on a two day turnaround, three day turnaround. It could be a normal five day turnaround. So if the disk was manufactured the 2nd, you would not get that disk back probably till the 7th. Q. And when did you consult a lawyer about suing him? A. I have no idea. Q. When did you, when did you go to Court? It was December, right? A. December. Q. Now, I'm showing you Plaintiff's 19, which is Brian Martin's first -- well, his version as of 12/13/91, is that correct? A. Yes, sir. Q. And this is Defendant's 1, which you've identified as a file retrieval program? A. It appears to be, yes. Q. Now, with reference to -- I believe it's your testimony, although we went over this quite a while, I'm a little confused myself, you're saying that Brian, Brian Martin's program there, 19, is substantially different from Larry James' last program? A. No, sir. When I went back last night to my home I checked this out. This is Larry James and Brian Martin's code. This are the both fixes (sic). This is not Brian Martin's code. It's Larry James' code. THE COURT: This is what? You have it in your right hand. What's the number on it? THE WITNESS: 19, Exhibit. THE COURT: Plaintiff 19. So that's a combination? THE WITNESS: This is a combination of both codes together, Larry James' and Brian Martin's. This is not the completed code that I handed in. BY MR. OSTROWSKI: Q. Okay. You've already -- what does it say on there, as far as your handwriting describing it? A. Completed code of Brian's work. Q. Okay. A. Brian's work in this code, in this actual code right here, Larry's. Q. Okay. So when you say that it is Brian's work, quote, that's not correct? A. Well, no, not Brian's work completely, no. This is not Brian's complete work. Q. That's not correct, is it? A. No, it's not. Q. In fact, it's 90% Larry James' work, isn't it? A. I don't know source. All I know, that the bugs were taken out. We never claimed this to be our code. Q. Well, you claim it right on the code, didn't you? A. I got complete source code of Brian's -- Q. Please answer the question. Did you claim it on the code? A. -- work. This was the complete code of December of 1991. Q. Did you claim it on the code that it's Brian's work? A. Yes. That's how I marked things at home. Q. And that's what you're referring to in Court in December when you said it was completely rewritten? A. No, sir, I did not. Q. Okay. Well, the record will speak for itself on that. And you've also testified that this, Plaintiff's 19, is incorporated in at least one CD ROM release, isn't that correct? A. Yes, it is. Q. In fact, it's -- A. It's actually in three releases. THE COURT: Excuse me? MR. OSTROWSKI: Okay. THE WITNESS: It's in three releases. BY MR. OSTROWSKI: Q. Which releases are those? A. I think three releases. The combination of this code was released in version -- Q. Here's the Exhibits. A. -- version 5. THE COURT: Excuse me? THE WITNESS: Version 5. THE COURT: Plaintiff's Exhibit 8. BY MR. OSTROWSKI: Q. Could you give us the whole code name? A. PDSI-005. Okay. Q. And any other versions? A. And PDSI-006-1, and PDSI-006. Q. Okay. So it's in 005, 006? A. Yes, sir. Q. And 006-1? A. Yes, sir. Q. And it's essentially substantially similar to Larry James' last program? A. The last program Larry wrote was, right, 9/1. Q. Right. Okay. So you were incorrect at the preliminary hearing when you said it was completely rewritten? A. If you read the back, go on to the next page, it says January that code was to be finished. I couldn't finish a code before December. It's almost impossible. Q. Well, you were asked about the value of your program, and you stated in your Affidavit that it was $60,000, right? A. I sure did. Q. You were talking about a non-existent program? A. To me, the retrieval that I had, even Larry James', the property of mine, for me to be able to produce disks, yes, to me that value was worth $60,000. Q. The one that Larry produced? A. Larry's, Brian's, whoever. To me that program was worth $60,000 -- Q. Well, you denied at the preliminary hearing that it was the, it was Larry's work that made it worth that much? A. Larry's work made -- I never said Larry's work did not make my program good. Q. Didn't you say at the preliminary hearing, on cross examination, that it wasn't, and I'm paraphrasing, I'm not quoting, it wasn't Larry's work, it was, I'm having it rewritten by Brian Martin, and that's what's making it so valuable? A. I could have said that. Q. Well, you did say that, didn't you? A. My exact words? Q. No, just your, the substance? A. I'm trying to think of what I said. That conversation was two years ago. Q. Well, we went over it yesterday, I'm not going to belabor it. Now, you said on direct that the program was rewritten by Brian Martin and was started from scratch, didn't you? A. There was two programs written by Brian Martin. Brian Martin was working on Larry James' code, catching bugs, and he also was working on his own release. Q. Now, Larry wanted to fix those bugs, didn't he? A. No, sir, he did not. Q. He didn't offer to help you straighten out the bugs? A. No, he did not. Q. In the taped phone conversation? A. That's not what, if you read, listen to the phone conversation, that's not what he offered. Q. Just asking you what he said? A. To my recollection he did not offer. Yes, he did offer to come to my house, but I wouldn't have him in my house after he turned my computer down. Q. Okay. So he did offer to fix the bugs, right, except he didn't want to take his copyright notice off? A. He probably would have fixed the bugs if I let him in, yes. Q. Okay. A. Maybe he would have. Q. There's bugs in programs. I think it's come up a few times? It happens in programs? A. Yes, sir, I admit that. Q. And the same person who writes the program can often fix the bug. It's just extra work. Okay. I don't know if that was an audible. Was that a yes? A. What's that, sir? Q. That there's bugs in programs and that they can be fixed? A. Oh, yes, sir, there's bugs in programs. Q. By the original programmer, just with extra work? A. There's bugs in all kinds of programs, sir. Q. Okay. Now, when you were testifying on direct about a program written from scratch by Brian Martin, weren't you talking about the 006-1 release? A. No, sir, I was not. Q. Okay. Well, the record will speak. Well, which -- can you identify by Exhibit which -- what other program did Brian Martin do? A. Brian's own work come out on version NOPV-7. Q. Any other releases that his second version came out on? A. NOPV-8. Q. Is that the current one that you're out with? A. No, sir. NOPV-9 is out now. Q. And who wrote the program for that? A. Phil Swanson. Q. And did he have access to Brian Martin's work? A. He had access to Brian Martin's last final codes, yes. Q. Did you have any written agreements with Martin -- or, Swanson? A. Yes, I do. Q. And they grant ownership to you of the programs? A. They sure do. Q. Now, I don't know if Brian Martin's second program is an Exhibit, but is that it, Plaintiff's 20? A. Yes, sir. That looks like it. Q. Okay. So this is -- A. I have it in my brief there. Q. This, Plaintiff's 20 is Brian Martin's second effort and the one that came out on -- A. 7. Q. -- 7 and what else -- 6 and -- well -- A. No. Q. You tell me. A. Came out on 7 and 8. Q. Okay. 7 and 8. THE COURT: Came out as what? THE WITNESS: 7, NOPV-7 and NOPV-8. BY MR. OSTROWSKI: Q. And this first version, which is Plaintiff's 19, that came out on 5, 6 and 6-1? A. Yes, sir, PDSI. Q. Okay. Now, have you compared the similarity of Plaintiff's 20 with Plaintiff's 19? A. No, sir, I have not. Q. Did you issue -- did he have, did he have access to Plaintiff's 19 when he wrote 20? A. He had access to code right up until, of Larry's code, of the 9/1 code, that's the date that he's got, September 1, 1991, C source that he had of Larry's up until, well, he probably still had it, I don't know, up until 5/4 of '92. Q. Well -- A. Because that was -- Q. -- I don't know what -- I'm confused. All I'm asking you is, when he wrote Plaintiff's 20, did he have access to Plaintiff's 19 source code? A. Yes. Q. Okay. But you don't know how similar they are because you're really not that good of a programmer on C anyway? A. No, sir, I'm not. MR. OSTROWSKI: Your Honor, it appears that the witness is referring to notes in his testimony. I would ask that they be marked as -- for identification, and I be allowed to examine them. THE COURT: Well, you may examine them. BY MR. OSTROWSKI: Q. Now, I believe it's your testimony that PDSI-004 was Brian Martin's program, Plaintiff's 19? Well, I'm just asking you. A. Let me have my notes. Q. Do you need to refer to your notes? A. Yes, I sure do. Q. Okay. A. When I got that -- THE COURT: Wait a minute. Why are you testifying from notes? THE WITNESS: I have all these, all -- I have, I've got so many dates. THE COURT: Well, I want to get what you remember. Now, if you come to a point and say, I don't remember, then if you need to look at something, we can have you look at it. THE WITNESS: Okay. THE COURT: Put it down, see if that refreshes your recollection, and then if it does, you can testify from your refreshed recollection. But we want it coming out of you and not from pieces of paper. THE WITNESS: Thank you. BY MR. OSTROWSKI: Q. Is it your testimony that PDSI-005, that CD ROM, had Brian Martin's first version, Plaintiff's Exhibit 19, as the file retrieval system? A. I'm not absolutely positive if version 5, it could have just been Larry's 9/1 code, I'm not absolutely positive. Q. Okay. Would it help you to refresh your recollection if you looked at your notes? A. On version 5, yes. Q. Okay. MR. OSTROWSKI: Your Honor, may I allow him to examine his notes? THE COURT: You can do anything you want. MR. OSTROWSKI: Thank you, Your Honor. THE COURT: Within bounds. THE WITNESS: That is Larry James' code. THE COURT: Now, he's just reading what's on the piece of paper. BY MR. OSTROWSKI: Q. Does that refresh your recollection as to whose program is on PDSI-005? A. Yes, Larry James'. THE COURT: And what is that recollection? Whose was it? THE WITNESS: That was Larry James' code, sir. BY MR. OSTROWSKI: Q. In what, what language? A. That was in C. THE COURT: In C? THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q. Is that a second release in C of Larry's code? A. Yes, sir, it is. Well, actually three releases he's got. Q. I'm sorry, I didn't hear you? A. Larry James come out on version 4-1. Q. In what language? A. In C, sir. Q. Okay. A. And he come out on -- he corrected a bug. He did have a bug in 4-1. He straightened that out. That was on the monochrome monitor. 4-2 came out. Then 5. THE COURT: 004-2? THE WITNESS: Yes, sir. THE COURT: And then 5? Is that right? THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q. Okay. And 004 is what program? Plaintiff's 5. A. That's -- that C code, you mean? Q. What, that was Larry James' program, wasn't it? A. Yes, sir. Anything before -- Q. And what language was that in? A. C Plus. Q. Okay. Didn't you testify yesterday that that was in Quick Basic? A. Which one? Q. 004? A. Well, 004 is Quick Basic. I misinterpreted your question. I thought you said -- THE COURT: It's not C Plus? THE WITNESS: No, sir. It's Quick Basic. BY MR. OSTROWSKI: Q. Are these all -- all these programs, 4, 4-1, 4-2 and 5, have some copyright notice about Larry James, is that correct? It's different, but they all say that he has a copyright on it. One is with you and the other is not. A. To my recollection, yes. Q. Okay. And those are out there around -- A. Yes, sir. Q. -- and possibly still being sold? A. Possibly. Q. And you never made any attempt to recall any of them, for the reason that he had a copyright notice on them? A. No, sir. Q. Now, you testified that -- well, I believe you corrected your testimony, that you had said that Brian Martin's program was on 005, but that's Larry's correct? A. To my recollection, yes, sir. Q. And Brian Martin's first program, which is Plaintiff's 19, that's on 006 and 006-1? A. To my recollection, if the code date is after 9/1, yes. Q. And his second program is on NO -- who's on NOPV-00 -- well, there's a PDSI-006, correct? A. Yes, sir. Q. And that is Brian Martin's first program, right, Plaintiff's 19? A. That's part Larry's and part his, to my recollection. Q. And who is on NOPV-006, whose program is that, authorshipwise? A. That one I'm not absolutely positive. I think it still may be the two. THE COURT: Still may be what? THE WITNESS: It may be the two codes, that both worked in. BY MR. OSTROWSKI: Q. Well, I'm not following your answer. What -- A. That may be still Larry James' code that Brian was working in. THE COURT: Well, let me ask this. Now, you have one that's a program identified as PDSI-006. THE WITNESS: Yes, sir. THE COURT: Then you have one NOPV-006. Is that the same program with a different lead-in letters? THE WITNESS: It's the same disk, but we recalled PDSI series, so we replaced it with -- THE COURT: So it's just a change of the name of the series? THE WITNESS: No, sir. THE COURT: Oh, PDSI went out the window. THE WITNESS: Right. And -- THE COURT: NOPV came in. THE WITNESS: Yes, sir. That took the place of that. THE COURT: When you did that as to a particular disk, 006, what was on the disk, the program there remained the same? THE WITNESS: Yes, sir. THE COURT: All right. THE WITNESS: Except for the retrieval. Now, that's where I'm not sure at. The retrieval would change because we remastered that disk. BY MR. OSTROWSKI: Q. What do you mean when you say you recalled PDSI series? A. The PDSI series was all recalled, the PDSI-006 and the PDSI-006-1. Q. Well, what do you mean when you say it was recalled? A. We recalled it from the marketplace and from -- Q. Pardon me? A. We recalled it from the marketplace. Q. And how many of the disks that were distributed did you get back? A. We haven't taken a full inventory yet. We still get some back to the day. Q. Do you have any idea what the percentage is of those you've gotten back? A. I'd say there's still about 40% out, roughly. I'm not sure. I have no calculation of what's out there. Q. And I believe it's your testimony that NOPV-007 was Brian Martin's second version, which is Plaintiff's 20? A. That's his first release, right. Q. Well, I don't know what you mean by first release. A. That's his first published work. Q. So are you conceding that the, that Plaintiff's 19 is really Larry James' program? A. Larry's program with the bugs fixed, yes, sir, from Brian Martin. Q. But the substance of it is the same, isn't that correct? A. The substance is basically the same. Some routines changed, not much. Q. And then the last one is NOPV-9 and that was done by Phil Swanson? A. Yes, sir. Q. Now, did he have access to Brian Martin's last work? A. Yes, he did. THE COURT: Which is -- THE WITNESS: Not the last work, not 12/13/91, on this sheet here. Was it Plaintiff 20? BY MR. OSTROWSKI: Q. Well, I assume you would have given him the best program that Brian Martin did, to start with, right? A. Brian Martin started -- or, yes, sir, he started from the final code of his, Brian Martin. Q. So the one that Brian Martin had on 007 and 008, NOPV, you gave to Swanson? A. That is very correct. THE COURT: Among the Exhibits which have been marked, I don't see an NOPV-9. MR. OSTROWSKI: I don't believe that's in the case at this point. THE COURT: No. 6, 7 and 8. MR. OSTROWSKI: I did Subpoena it. I don't know if it's arrived. THE WITNESS: What's that? Which one? MR. OSTROWSKI: I Subpoenaed all the programs, basically. BY MR. OSTROWSKI: Q. Now, you said -- THE COURT: Is it time for a recess? MR. OSTROWSKI: Yes, Your Honor. I probably need a little time to get re-organized. (Recess taken.) CONTINUED CROSS EXAMINATION BY MR. OSTROWSKI: Q. Now, Mr. Graham, yesterday something came up about what you said in the initial hearing in December '91, and I believe you stated that you did not say, you did not pay Brian Martin $3,000 to rewrite the program? A. To my recollection at that time, right. Q. What I'm asking you is in fact disregarding the hearing and the transcript, did you in fact pay him $3,000? A. For the new retrieval. Q. Well, did you pay him $3,000 for rewriting Larry James' program? A. Yes, I did. Q. Okay. Did you state yesterday that you did not pay him $3,000? A. Yes, sir, I did. Q. And did you also state that the transcript was incorrect? A. I thought it was -- Q. If it said that you paid $3,000? A. I thought it was in error because it was two codes that we were talking about. The actual 12/4 code I paid $400 for. MR. OSTROWSKI: Your Honor, I would ask that the recording of the preliminary hearing with respect to that episode be played. THE COURT: It's a matter of whether or not the transcript is correct. Now, you have the tape, you've listened to it. Anybody else can listen to it, decide what, whether the transcript is correct. If the transcript is correct, it stands as it is. If it needs correcting, we'll correct it. MR. OSTROWSKI: Okay. THE COURT: And the main thing, Mr. Graham has said, I did not say that. When you read him whether he had been asked this question and gave this answer. Now, has Mr. Graham listened to the tape? MR. OSTROWSKI: I don't think so. I haven't listened to it either, Your Honor. THE COURT: Oh, no one has. Well, I'm not just going to listen to it out of the blue. MR. OSTROWSKI: Well, I'm informed by the Court Reporter as to the contents of the tape. THE COURT: She has what? MR. OSTROWSKI: I was informed that the, the tape is correct. The transcript is correct, based on the tape. THE COURT: You want her to - - swear the Court Reporter? MR. OSTROWSKI: Yes, Your Honor. THE COURT: No. We're not going to. When you have someone taking it down on stenotyping, you do, you have to get up there with reefs of stenotype paper and she reads it from what she actually has and says, yes, that's what's in the transcript. MR. KITCHEN: Your Honor, is there still a problem? I believe Mr. Graham has now changed his testimony from yesterday. THE COURT: Well, go back to the question there. Were you asked this question, did you give this answer. We'll see where he is. Maybe he now has changed his mind on that. Do you have in mind what you had read before? BY MR. OSTROWSKI: Q. Are you now stating that the transcript was correct, that you did pay Brian Martin $3,000? A. Yes, I did. Q. Just to clarify, did you have -- were there any conversations with -- did you have any conversations with Mr. James where other people listened in? A. There may have been from time to time people at my house. Yes. I have, to bring them -- Q. Well, I mean -- THE COURT: Face to face -- MR. OSTROWSKI: I'm sorry. THE COURT: -- you're talking about now? THE WITNESS: If that's what he -- BY MR. OSTROWSKI: Q. Phone conversations? A. Oh, phone conversations? Q. Yeah. A. Have I had any phone conversations with Larry James? Q. With other people -- THE COURT: On which other, someone else was listening in? THE WITNESS: Not to my recollection. The only two I know of is the two. THE COURT: They were being taped. THE WITNESS: Taped. THE COURT: And you don't, you said you don't know whether Greg was listening in as he taped. THE WITNESS: No, sir, I do not. THE COURT: Right. BY MR. OSTROWSKI: Q. And were there any other conversations between Mr. James and anyone else concerning this program that's at issue in which you listened in? A. Which I listened in to? Q. Yes. A. Not that I'm aware of. Not to my recollection, I have no idea. THE COURT: How good is your recollection? THE WITNESS: Sir, that's two years ago. I really don't have any recollection of me listening to anybody's conversation with Larry. BY MR. OSTROWSKI: Q. Was there -- did you listen to a conversation between Larry and Robert Depew? A. Oh, yes -- well, no. I did not. I heard a answering tape message that Robert Depew sent to me, but I sent it back to him. It was on an answering machine, voice answering machine. Q. You didn't, you didn't hear a live -- THE COURT: An answering machine can do various things. Usually they repeat the message that the callee is leaving when he's not there, but sometimes the callee can be there and can push a button and have the whole telephone conversation recorded. Is that what you heard, the latter? THE WITNESS: No, sir. That's not what the, the one I got, the tape was, when Larry James was calling him. But I didn't listen in on any conversation that was -- that was the first I knew of that tape, and it was only about a few seconds. THE COURT: Was that a conversation? THE WITNESS: No, sir. THE COURT: What it would be would be Mr. James leaving a message in response to the message on the answering machine. THE WITNESS: Yes, sir. THE COURT: Is that what you listened to? THE WITNESS: Yes, sir. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. And there was no live conversation between Mr. James and Robert Depew in which you were listening in? A. Not to my recollection. Q. Well, is it that there wasn't one, or you're not sure? A. I would say I'm not sure. Q. Showing you Plaintiff's Exhibit 17, can you identify that? A. That looks like one of the Armenia tapes. Q. One of the Armenia tapes? A. Greg Armenia's tapes, it looks like one of them. Q. And how did that come to Court today? How did that come to be here in Court today? Did you have it? A. That's been in our attorney's hands since 1991. Q. Okay. MR. KITCHEN: Could we know what that's referring, what the witness is referring to? THE COURT: Well, the way you had listed it on your list was audio tape cassette, quote, Larry, Arabic 2, unquote. MR. KITCHEN: Well, I just wanted to know what the Exhibit number was, Your Honor. THE COURT: 017. MR. KITCHEN: Oh, I'm sorry. BY MR. OSTROWSKI: Q. Do you know what's on the tape? A. On that particular tape, no, I don't, sir. THE COURT: You haven't listened to it? BY MR. OSTROWSKI: Q. You haven't listened to it? A. I haven't listened to it. THE COURT: Ever? THE WITNESS: Oh, yes. I listened to it when they were first done, but I have no idea that it was two tapes, which one, you know what it is. THE COURT: You listened to both of them? THE WITNESS: Yes, sir. THE COURT: And not since that time. THE WITNESS: Not since that time. That was when they were taped. MR. OSTROWSKI: Your Honor, I would ask -- THE WITNESS: In September. MR. OSTROWSKI: -- to be allowed to play the, just the beginning portion of the tape and -- THE COURT: They're not in evidence. MR. OSTROWSKI: Your Honor, I need to have the -- THE COURT: I know. I know. MR. OSTROWSKI: -- witness listen to the tape. THE COURT: I'm just telling you where we are in the relay race. MR. OSTROWSKI: I can't offer it in evidence until he identifies it and he can't identify it until he listens to it, Your Honor. I'd ask that, just silently to himself, the tape, the tape recording could be played at a very low volume, to identify his voice. I've listened to the tape. So that he can identify the tape and then it could be offered into evidence. This was a tape supplied by the plaintiff in response to my Subpoena. THE COURT: I was looking for Mr. Kitchen's list of Exhibits. He has a copy. And on there, 17 says, audio tape cassette, quote, Larry, Arabic 2, unquote. Now, I would suggest, though you run your own ball game, that you would offer that in evidence, and then you'd see what Mr. Kitchen's response to it is. MR. OSTROWSKI: I just listened to it for the first time last night, Your Honor, because the, I did receive a prior version but it was essentially inaudible. THE COURT: Whatever you want to do. Mr. James wants to talk with you. MR. OSTROWSKI: It was my intention to simply play a short portion of, of this tape, but I have no objection to it being admitted into evidence. THE COURT: Are you offering it? MR. OSTROWSKI: Yes, Your Honor. MR. KITCHEN: I have no objection, other than the fact that if it's offered into evidence, the entire thing should be played. THE COURT: Well, he's offering the whole tape. We haven't come to the point of playing it. MR. KITCHEN: I understand, Your Honor. Okay. THE COURT: So you have no objection to Plaintiff's Exhibit 17 being received in evidence. MR. KITCHEN: That's correct, Your Honor. THE COURT: It's in evidence. (Plaintiff Exhibit 17 for identification was received in evidence.) MR. OSTROWSKI: May I play the beginning of the tape, Your Honor, to lay a foundation for further questions of the witness? It's a very short portion, less than a minute or two. MR. KITCHEN: I'll object to him playing just a part of it, Your Honor. THE COURT: I was going to say, Mr. Kitchen has no idea of what part you're intending to play, whether it's -- MR. OSTROWSKI: I'm going to start at -- I'm sorry, Your Honor. THE COURT: -- just a simple burp by somebody -- MR. OSTROWSKI: No. THE COURT: -- or whether there's some continuity, something ripped out of context -- MR. KITCHEN: Right. THE COURT: -- something that's complete unto itself, or -- MR. OSTROWSKI: I'm going to play the absolute beginning of the tape, and I'm going to play the tape for about a minute or two, and then ask Mr. Graham some questions. If Mr. -- it's like any other thing in evidence, if Mr. Kitchen wants to play it, any other part, in his case, or whatever, or to cross examine any other witness -- THE COURT: How long a tape is it? MR. OSTROWSKI: This tape I think is about -- THE COURT: It can't be more than 15 minutes. MR. OSTROWSKI: I think it's about half an hour or 20 minutes. THE COURT: Both sides? MR. OSTROWSKI: I think there's just one side. I -- THE COURT: Does it run that long on one side, Mr. Graham? You know more about tapes than I do. THE WITNESS: I'm not absolutely positive, Your Honor. I didn't do the taping. I know I've been on the phone for a half hour. THE COURT: Maybe I get cheated in what I buy, but it seems to me it's always 15 to 18 minutes a side. MR. KITCHEN: Well, Your Honor, I think if I could look at that -- THE WITNESS: That's the big one. MR. KITCHEN: This does say it's a 90 -- THE WITNESS: That's 90 minutes. MR. KITCHEN: -- which I believe would be 90 minutes total, meaning 45 minutes on each side. THE COURT: Each, 45 each side. MR. KITCHEN: Now, I listened to the thing not that long ago. I don't think it occupies the whole side, I don't think the conversation is that long. I think it's about -- THE COURT: How long do you think it is? MR. KITCHEN: I think it's maybe 10 or 15 minutes, but I might be, I might be way off. I -- you know -- THE COURT: Well, not having a transcript and so forth, the only thing I can suggest is playing the whole thing in. MR. KITCHEN: Yeah. That's what I would ask the Court to do. THE COURT: What do you have to play it on? MR. OSTROWSKI: May I just have a moment, Your Honor? (Off the record.) MR. OSTROWSKI: I wasn't intending to play the whole thing, but -- THE COURT: I know you weren't. MR. OSTROWSKI: I can play it -- THE COURT: Now -- MR. OSTROWSKI: I have no objection to playing it now. THE COURT: Now, if this were a transcript of something, you could proceed as we did earlier, of asking him whether he was asked particular question and gave a particular answer. Here you could ask whether John Jones said this, and whether he, Mr. Graham, said that. See what he says. MR. OSTROWSKI: Well -- THE COURT: He may admit it. MR. OSTROWSKI: The reason I was intending to play the tape, and I have no objection, there's nothing -- I have no objection to playing the tape by anybody at any time, except it disrupts the flow of my cross examination. I was simply going to ask him about the very -- I don't want to testify, but there's a conversa -- THE COURT: Well, why don't you ask him about it? MR. OSTROWSKI: Because I already have asked him about it, but he has not heard the tape. I'd like to, I'd like to impeach him with the tape. MR. KITCHEN: Your Honor -- THE COURT: Well, use a hypothetical question, assuming that on the tape it says, blah, blah, blah, what is blah, blah, blah. MR. KITCHEN: Your Honor, with all due respect, to characterize the progress of this cross examination as a flow is questionable. Could we -- I mean, if it's going to take 15 minutes, we've spent half of that arguing about whether we should play the whole darn thing. Why don't we just play it? Is there a problem? Mr. Ostrowski could always replay portions if they had to be -- THE COURT: Mr. Ostrowski says the part that he is interested in is at the very start. So what do you have to play it on? You have -- MR. OSTROWSKI: I have a tape recorder, Your Honor. THE COURT: Like what? Does it have some volume to it? MR. OSTROWSKI: It's pretty loud. It can be pretty loud. THE COURT: All right. Why don't you start playing it. If you want to stop it at some point, that's your prerogative. MR. OSTROWSKI: Shall I hold it near the microphone? THE COURT: Put it right there where all those jewel boxes are. This is at the start. THE COURT: Right at the beginning? MR. OSTROWSKI: This is Plaintiffs' Exhibit 17, beginning of the tape. (Starting to play tape recorder.) MR. OSTROWSKI: Your Honor, can you hear that? THE COURT: Very easily, yes. Even with my hearing aids. MR. OSTROWSKI: I'll rewind it, start again. (Plaintiff's Exhibit 17, tape being played.) BY MR. OSTROWSKI: Q. Now, Mr. Graham, is that your voice on the tape? A. Yes, I heard my voice on the tape. (Tape being played.) Q. Now, do you recognize those voices? A. Yes, I do. Q. And who are those voices? A. One was, I heard Greg Armenia in there, and I heard Robert Depew. THE COURT: Which, this last little bit or the first segment? MR. OSTROWSKI: Your Honor, with respect to the -- we heard a phone being dialed and then two people introducing themselves -- THE WITNESS: I didn't hear the first -- THE COURT: Then you asked Mr. Graham if he recognized a voice, and Mr. Graham said, yes, that's my voice. Then you played some more. MR. OSTROWSKI: Yes. THE COURT: The phone rang. Somebody answered. Now, are you talking about that second segment -- MR. OSTROWSKI: Yes, Your Honor. THE COURT: -- or the first. MR. OSTROWSKI: I probably should have done it in order as I started. BY MR. OSTROWSKI: Q. In the beginning of the tape, who are the people that we hear on the tape? A. Greg, myself and Robert Depew. Q. Greg Armenia? A. Yes, sir. THE COURT: Wait a minute. Greg and yourself and who? THE WITNESS: Robert Depew, Depew. BY MR. OSTROWSKI: Q. And then just at the point where I stopped it, Mr. Depew had phoned Mr. James, is that correct? A. That's correct. Q. And those were the two voices on the tape? A. I didn't quite hear the last voice, but I know the first was Robert Depew. Q. Well, I'll play some -- you have identified Mr. Depew? A. Right. (Portion of tape played.) BY MR. OSTROWSKI: Q. Is that Larry's voice? A. That's Larry's voice, yes. Q. Okay. So this is a phone conversation between Larry and Robert Depew? A. Yes. Q. And you're listening in? A. Yes, I am. Q. Okay. You denied that you did that, just a moment ago, didn't you? A. I said, to my recollection. I don't remember. Q. But you've played this, you've heard this tape? A. I've heard that tape, I think. Q. And you -- A. I think I've heard that tape. I'm not sure. Q. And you heard the phone conversation, because you were listening? A. Well, if my voice is on that tape, I probably heard the tape. Q. Okay. But you denied in Court under oath that you had eavesdropped on a phone conversation between Robert Depew and Larry James, correct? A. I had not said that I knew of a phone conversation. I knew there was two tapes made. I did, was not sure. My wife even reminded me last night. Q. And did you, could you hear the conversation on this tape? THE COURT: You mean as he was listening to it -- MR. OSTROWSKI: Yes. THE COURT: -- while it was being taped? BY MR. OSTROWSKI: Q. As the conversation was occurring, could you hear the conversation? A. I'm not quite sure what the conversation was -- I can make, what I think it was about. Q. No, that's not what I'm asking you. A. If it's what I think it's about, then that's -- Q. As the conversation -- THE COURT: As the conversation was going on and was being taped, you were listening to it. THE WITNESS: As far, to my recollection, yes. THE COURT: Well, how good is your recollection? THE WITNESS: On that phone tape? THE COURT: No, that you were listening to it. THE WITNESS: Oh, as I was listening now? THE COURT: No, as it was being taped. As the telephone conversation was being had and taped. THE WITNESS: I really don't recollect that tape, Your Honor. THE COURT: You don't recall the episode? THE WITNESS: I don't -- that's what I mean. I -- THE COURT: You don't recall Depew calling James? THE WITNESS: It's coming back. I know Bob Depew did call him, yes, sir, I do, because Bob -- THE COURT: Did you listen in as they talked? THE WITNESS: Yes, sir. THE COURT: All right. BY MR. OSTROWSKI: Q. Is your memory refreshed then as to whether you eavesdropped on a Larry James phone call? A. Yes, I did. Q. And you did. You didn't speak during that conversation, after Mr. Depew had rung up Larry James, correct? A. I don't -- no, I don't think I spoke. MR. KITCHEN: Your Honor, I'll -- THE COURT: Excuse me. Did, Mr. James then did not know that you were listening in, to the best of your knowledge. THE WITNESS: To the best of my knowledge, no, he didn't. THE COURT: Did Mr. Depew know that you were listening in? THE WITNESS: Mr. Depew did, yes, sir. THE COURT: All right. Yes, Mr. Kitchen? MR. KITCHEN: I'm just objecting to the characterization, eavesdropping, which I think -- THE COURT: Well, it's intentional. It's meant to tear down the reputation of Mr. Graham. Cross examination and all that. MR. KITCHEN: Yes, but I -- THE COURT: Obviously the Court has listened to much testimony in similar lines through many years. MR. KITCHEN: I -- MR. OSTROWSKI: He's adopted the language, Your Honor. MR. KITCHEN: Your Honor, I object to the term because I believe technically it means listening to a conversation where neither party is aware that this, that the person is living. THE COURT: This is why I brought out that Mr. Depew knew that Mr. Graham was listening. MR. OSTROWSKI: Right. Mr. Kitchen at one point yesterday was wondering about whether we had today available. The way the trial is going, you may be wondering about next week or something. MR. KITCHEN: Since the Court has brought this up, assuming we do not conclude today, and it would appear that we may not, will we simply continue tomorrow? THE COURT: Tomorrow is available. Are you going to be able to complete tomorrow? That's what's bothering me at this point. MR. OSTROWSKI: This is the longest witness, Your Honor. I anticipate that even Mr. James will not take as long. THE COURT: Well, he won't take as long on your examination, but I assume there will be a quantum of cross examination. MR. OSTROWSKI: In retort to Mr. Kitchen's remarks about me, I predict that that's not going to be as long as one would think. BY MR. OSTROWSKI: Q. Okay. Mr. Graham, you stated yesterday that you filed an Affidavit with the Court in December as part of the initial lawsuit, is that correct? A. I filed what, sir? Q. Did you sign and file an Affidavit with the Court in support of your injunction motion? THE COURT: Wasn't that in seeking an order to show cause with a restraint? MR. OSTROWSKI: Yes, Your Honor. THE COURT: I think you'll find it was not filed. It was submitted to me. MR. OSTROWSKI: Okay. What -- yes, Your Honor. BY MR. OSTROWSKI: Q. Did you sign an Affidavit in support of your injunction motion, back in December '91? A. Did I sign a what? Q. I'm showing you Defendant's Exhibit 5. Can you identify that document? A. Yes, sir. I've seen this. Q. That's your Affidavit? A. My Affidavit? Q. Yeah. THE COURT: Did you sign it? THE WITNESS: Yes, sir. THE COURT: Did you swear to it? THE WITNESS: Yes, sir. THE COURT: When did you swear to it? THE WITNESS: I'm pretty sure this was in Denis Kitchen's office. THE COURT: When did you swear to it? Is there a Notary Public on there? THE WITNESS: December of 1991, sir. THE COURT: December what? THE WITNESS: I don't see a date. BY MR. OSTROWSKI: Q. Well, do you see that -- A. 1. Q. Could that be a 6? A. Could be a 6 or a 1. It looks like a 6, Your Honor. THE COURT: So December 6, 1991. BY MR. OSTROWSKI: Q. Now, you stated earlier that Mr. James was employed by you starting in, was it March of April? A. He started writing source code in April, yes -- or, no, March. Q. That's not what I'm asking you. When was he employed by you? A. In-house, September 1st, October, the last week in October, or the first week in September. Q. Well, I'm not talking about in-house. You stated previously that he was employed by you, I believe it was in April, it could have been March. A. It was March of '91. Q. He was employed by you in March of '91? A. He wrote source code -- Q. Is that correct? A. -- March of '91, yes. Q. Didn't you say in your Affidavit to the Court that he was employed in August and September? A. Full time, yes. In September, right. Q. Well, showing you paragraph 3 of your Affidavit, does it, does the word full time appear in the Affidavit? A. No, sir, it does not. Q. Okay. So in your Affidavit to the Court you stated that defendant Larry James was my employee during the months of August and September 1991? A. Yes, sir. Q. Okay. But that's false, isn't it? A. It depends how you look at it, what you call an employee. Q. Well, you stated in your testimony today, or yesterday, that he was an employee in March or April? A. When he wrote in code, no matter where he wrote, home, at my office, I consider -- Q. Okay. So this, but this Affidavit as we stand today is false? A. I wouldn't say exactly false, no. Full time wages is full time employment. Q. Now, you stated in the preliminary hearing that your file retrieval program is worth $60,000? A. Yes, sir. Q. And what is it worth today? A. Just the retrieval? Q. Just the retrieval, yes? A. I'd say $2,500, $3,000. Q. It's only worth $3,000 today? A. Yes, sir. Q. When did it stop being worth $60,000 and become worth $3,000? A. Because the $60,000 was asked what it's worth to me, not what it sells for out in the marketplace. THE COURT: At that time? THE WITNESS: At that time, yes. BY MR. OSTROWSKI: Q. Well, what is it worth -- THE COURT: Well, it could not have been sold for $60,000 at that time? THE WITNESS: At that time, it couldn't be sold for that, no, sir, not for $60,000. The assets to me it was worth $60,000, the program itself. BY MR. OSTROWSKI: Q. And what is it worth to you right now? A. With all the retrievals I have, really $2,500 to $3,000, what you'd pay for anybody to program for you. THE COURT: That's, it's worth to you. THE WITNESS: To me, about $3,000. THE COURT: Not what it could be sold at. BY MR. OSTROWSKI: Q. So to you it was worth $60,000 back in December '91 and to you it's now worth $3,000? A. Now that I have more retrievals, yes, sir. THE COURT: Now that you have more what? THE WITNESS: More retrievals. BY MR. OSTROWSKI: Q. Well, which version are we talking about when you say it's worth $3,000? Are we talking about the Larry James program? Are we talking about the Jeff Swanson program? A. I'm talking about all of them. I'm talking about the other codes that I own from other programmers. One in California, that's only worth $3,000. Q. Okay. Now, you stated that the, his copyright notice, a joint copyright notice appeared on the Quick Basic version, correct? A. Yes, sir. Q. And you saw that about a week after it came out? A. Yes, sir, roughly. Q. And the first thing you did was ask Larry James to write a new program in C, correct? A. I didn't ask Larry James to write a new program in C, no, I did not. Q. Did he write a new program in C? A. He wrote a new program in C, yes. Q. For you? A. I assumed it was for me because it was from our codes. Q. Did he just plop it on your desk? A. No, he did not. Q. Did he talk to you about it before that? A. Yes, he did. Q. So after he put this -- the copyright notice is incorrect in your opinion, isn't it, the joint copyright notice? A. No, it's not correct. Q. Okay. After he put an incorrect -- now, it's your property, right, the program in Quick Basic? A. The program in Quick Basic belongs to Night Owl Publisher. Q. And, well, when somebody puts a copyright notice on something you own, it's kind of like stealing it from you, isn't it? A. Yes. Q. And after he stole half of your program, because you have a notice on there, too, you kept doing business with him, and he did another program for you? A. We figured, I figured we could work something out, yes. Q. Okay. What does the term co-sysop mean? THE COURT: Excuse me? MR. OSTROWSKI: Co-sysop? COURT RECORDER: How do you spell that? MR. OSTROWSKI: C-O, it's a acronym, I think, or -- THE COURT: C -- MR. OSTROWSKI: C-O-S-I-S-O-P. THE COURT: C-O-S -- MR. KITCHEN: Y-S-O-P. THE COURT: C-O-Y-S-I -- MR. KITCHEN: C-O-S-Y-S-O-P. BY MR. OSTROWSKI: Q. Do you know what that means? A. It means a co-sysop of my bulletin board. Q. Now, with respect to the Quick Basic program that Mr. James worked on, that was PDSI-004? A. PDSI-004, yes. Q. And how much was that sold for in the market? A. It was not -- Q. The entire CD ROM? A. The entire CD ROM? The program wasn't sold. The CD ROM was sold. Q. I know that. A. CD ROM was -- Q. How much did the CD ROM sell for? A. It was either $159 or $139. Q. And how many did you sell? A. I'd have to get my notes. Q. Well -- A. They're in my briefcase. Q. -- I Subpoenaed your financial records. Are they here? Do you have any financial records that indicate that? A. No, I don't. I have a inventory from Nimbus of what was bought and the months they were bought. MR. OSTROWSKI: I have no objection to the witness looking at that. BY MR. OSTROWSKI: Q. Well, you don't recall -- THE COURT: He brought some paper to the box with him. THE WITNESS: I got them accounts from Nimbus. It was Friday that we called them and asked them for what, they went back through their computer. That's their notations on what day them products was ordered and the amount of disks, for all the versions, I think, in question. BY MR. OSTROWSKI: Q. Well, these notes here, they have to do with PDSI-005 and 4.2, is that correct? A. 4.1, 4.2 and 5. Q. Well, do those notes help you refresh your recollection about what the, how many of version 004 were sold? A. 004? Q. Yeah, the Quick Basic version? A. No, sir. That gives me no idea how, what -- how many 4's were sold. Q. Do you have any idea? A. No, I don't. I'll tell you it would be less than either one of the other two versions. Q. Well, do you have an estimate? A. Oh, okay. I'll say, I'd say maybe 4,000. Maybe. I'm not sure. Could be more, could be less. Q. Is that still being sold? A. To my recollection, no. Q. Well, is it -- do you publish catalogs of what you have in stock? A. No, I don't publish catalogs. I don't carry it in stock. No, sir, I don't. Q. Well, how does a distributor know, how does a retailer know what you have available? A. By calling. Q. They call you? A. They're, whoever they distribute off of, or whoever I sold to, they call whoever they bought it off of. Q. You don't advertise, correct? A. No, sir, I do not. Q. Okay. With respect to version 004-1, that's the one with Larry James -- there was a bug in that, right? A. Yes, sir. Q. And -- THE COURT: Which one? THE WITNESS: 4-1. MR. OSTROWSKI: I take it it's Plaintiff's 6, that's -- THE COURT: No. You mentioned 00 something and I missed the digit. MR. OSTROWSKI: PDSI-004-1. BY MR. OSTROWSKI: Q. That's the Larry James C version that had a bug in it? A. Yes, sir. Q. So those were all recalled? A. No, sir, they were not. Some were, mostly of them were sent back. Q. Well, the ones that -- well, what percentage were sent back? A. I'll say, I'd say maybe 35% of them were sent back. Q. And how much did those sell for, generally, the ones that weren't sent back? A. I have no idea what they were sold for. They were sold to a distributor. They could have been anywhere from $595 up to $725. Q. Per, per disk? A. Per disk. Q. You saying that these, this version was more expensive than the previous one? A. You asked me retail, didn't you, on the $159 -- THE COURT: Yeah. You're on two different platforms here, retail and wholesale. MR. OSTROWSKI: Well, Your Honor, I'm asking him what he sold them for. THE COURT: You didn't ask him that. You said, what do they sell for. BY MR. OSTROWSKI: Q. Okay. I'm now asking you, what -- well, with respect to the Quick Basic version, you stated that you sold them for either $139 or $159, correct? A. That's what I resaled them at, yes. Q. Okay. And what do you sell -- THE COURT: Wait a minute. What did you wholesale them at? THE WITNESS: I wholesale them for anywhere from $5.25 at that time to $7.25. THE COURT: You mean you're paying more at wholesale than at retail? A little screwed up, isn't it? THE WITNESS: I sell more wholesale to distributors than I do sitting there trying to -- THE COURT: And that wholesale price is lower than retail? THE WITNESS: Yes, sir. THE COURT: All right. BY MR. OSTROWSKI: Q. Well, what's the -- THE COURT: You got yourself mixed up, I think, if you want to go back over it. BY MR. OSTROWSKI: Q. What is the wholesale price of the Quick Basic version 004? What was it? A. It ranged from $4.25, or up to $7.25. It could have been -- THE COURT: Excuse me. Now this is retail or wholesale? THE WITNESS: That's wholesale? BY MR. OSTROWSKI: Q. You saying $4.25? A. Yes sir I am. Q. To what? A. Up to $7.25 or $8.25. THE COURT: I see. When you're saying $5.75 you're saying $5.75. THE WITNESS: Yes, sir. THE COURT: I see. All right. BY MR. OSTROWSKI: Q. Okay. And what percentage of the Quick Basic version 004 did you sell retail versus wholesale? A. 99%. Q. Which? A. 99% went wholesale. Q. And with respect to 004-1, what was the -- how much -- what was the retail price? A. The retail price on that disk was, I think we had just moved down to market on price and I'm thinking it's down to $139, $129, re -- or that's whole -- or retail, wholesale -- Q. How many did you sell retail? A. How many did we sell retail? Probably a half a percent. Q. Okay. How many -- A. And I got 99-1/2% or so wholesale. Q. Well, how many did you sell total? A. Total sales on 4-1, period? Q. Yes. A. 4-1, 1100 disks. Q. And what was the wholesale price? A. Wholesale price was $4.25 to $8.25. Q. And was the recut of 4-1 Larry James' C version on there? A. Yes, sir. Q. And what were the figures for that release, as far as the price? A. What disk are we talking about again? Q. PDSI-004-1? A. You just asked me that one. That was 1100 disks. Q. Well, no. I was asking you about the one that had to be recalled or sent back? A. You want 4-2 then. Q. No, I asked you about 004-1? A. 004-1, we sold 1100 versions of that disk. Q. Well, was that the one that had to be recalled or the -- A. That's the one that was recalled. Q. Well, that's what you just told me. Now I'm asking you about the recut. Was there a recut? A. Recut was 004-2. Q. Okay. MR. OSTROWSKI: Is that an Exhibit? THE COURT: I don't think so. MR. KITCHEN: Well, our Exhibit list shows an 01 -- or, excuse me, a 004-1 and a 004-1 recut, which is number 7. So our Exhibit number 7 -- THE WITNESS: Let me look at number 7. MR. KITCHEN: Now, maybe he's -- THE WITNESS: I can tell you better if it's a disk. MR. KITCHEN: Frankly, I get a little confused myself. THE WITNESS: I don't think so. I don't think that's 4-2. I have 4-2 in my briefcase, if you want me to enter it. MR. KITCHEN: Well, why don't we get that out. That may help. Your Honor, we have one with PDSI-004-2 on it. Let me mark that as Exhibit 32. I have another Exhibit that I've already marked 31. And I'll put the stickers both on the case and on the disk itself. (Plaintiff Exhibit 32 marked for identification.) BY MR. OSTROWSKI: Q. Okay. Showing you Plaintiff's Exhibit 32, what is that item? A. That's PDSI-004-2. Q. And whose file retrieval is on there? A. Larry James. Q. And can you give me the figures for that release? A. 4-2. 4-2 is 1100 versions. Q. And what was the retail price? A. Total retail on that was, I believe $139. Q. What was the wholesale price? A. Wholesale price was $4.25 to $8.25. Q. What was the average wholesale price for CD ROM's in the industry? A. At that time? Q. Yes. A. Oh, I have no idea because I didn't know the market at that time, when we first started really pushing it. Q. Is it possible that it was quite a bit more than $4.25? A. I doubt it. Q. I'm sorry? A. I doubt it. Q. But you don't know? A. No, sir. Q. And what, how many did you sell of that 1100 retail versus wholesale? A. On 4-2 was, I'd say 99-1/2% was sold wholesale. Q. You don't have any records that indicate that, do you? A. I could pull records from my accountant, yes. Q. Well, I've Subpoenaed the records. MR. OSTROWSKI: I'd ask that he be directed to bring them in. THE WITNESS: I have not been aware that the records had to be brought in. BY MR. OSTROWSKI: Q. I'm sorry? A. I was not aware any records had to be brought in. MR. OSTROWSKI: Well, I served a Subpoena on counsel, Your Honor, an exhaustive list of financial records. THE COURT: Talk with counsel. MR. OSTROWSKI: The rules allow me to serve counsel of the party. THE COURT: Pardon me? MR. OSTROWSKI: The rules allow me to serve the counsel, and that's what I did. THE COURT: Well, you served counsel. Ask counsel about the production then. MR. OSTROWSKI: I will, Your Honor. THE COURT: You don't serve it on the witness, or the party. BY MR. OSTROWSKI: Q. Okay. With, with respect -- what was the next one you put out? Was that -- A. PDSI-005. Q. And whose program is on that? A. Larry James. Q. And how many were sold? A. According here, 3202 disks. Q. And what was the retail and wholesale prices? A. Retail on that I think was $99, $99 or $79, one of the two. THE COURT: Excuse me? THE WITNESS: $99 or $79. BY MR. OSTROWSKI: Q. And what was the wholesale? A. Wholesale on that, I think it went from $6.25 to $11.75. Q. And what was the next release in order on the calendar? A. PDSI-006-1 -- or, I'm sorry, PDSI-006. Q. Now, was that Larry James' retrieval or was that the one that Brian Martin worked on? A. No, that was a Larry James. Q. Okay. A. I think, with Brian's work. I'm not sure. Q. But you've already stated they were substantially similar, correct? A. Yes, sir. Q. Okay. What were the figures on PDSI-006? A. I do not have that figure. MR. OSTROWSKI: Okay. I'd ask that he be directed to produce that, Your Honor, under Subpoena. THE WITNESS: I'll write that down. THE COURT: I suggest, the request went to counsel, and I would think you would ask Mr. Kitchen about it. BY MR. OSTROWSKI: Q. With respect -- THE COURT: You don't want to do that. MR. OSTROWSKI: I will do that, Your Honor. THE COURT: I see. You will do it. All right. Meanwhile, you want me to direct the witness to do so. MR. OSTROWSKI: Well, I -- THE COURT: Mr. Kitchen may be sitting on it. MR. OSTROWSKI: Mr. Graham has the records, it seems to me. THE COURT: I don't know anything about that. I don't know. BY MR. OSTROWSKI: Q. With respect to, what was the next release? Was that -- there's some confusion in my notes about that. Is that NO -- A. No. There was PDSI-006-1. Q. Okay. I take it you -- was there a -2? A. No, sir. Q. And I take it you don't have the figures for those also? A. No, sir. The PDSI's were recalled. That's why I didn't really think that was necessary, but I will bring it. Q. Do you have any of the figures for NOPV-006? A. No, sir. Q. Okay. And -- A. 6 or 6-1 I don't. Q. And 007? A. 007 was not Larry's code. Q. Is that the finished, is that the second version of Brian Martin's? A. That was the number 1 version introduced to the market, right. That was after another disk before that. It was, version 1 was the first disk that came out. That was not Brian Martin code. That was Jeff Woods' code -- or, Jeff Anderson's code. Then we released NOPV-7, which was our new code. That's how I was instructed to do it. Q. Now, after the, you had a dispute with Larry, did you -- you've already testified that you talked to some people out on the West Coast about the dispute. What did you tell them about what Larry was doing? A. They asked me certain questions and I gave them certain answers. Q. What did you tell them about what Larry was doing? A. I didn't tell anybody Larry was doing anything. They asked me if the program was mine, and I answered their question. Yes, it is mine. Q. So all you said was -- A. That's all I said. Q. Okay. But did you tell them that Larry put a copyright notice on something that was yours? A. I said there was a copyright notice on it by Larry James, but we owned the program. That's what I said. Q. Okay. And how many people did you tell that to? A. I'd say three people. Q. Did you ever write any memos on any computer bulletin boards about this case? A. Not that I recollect. I know I answered a big -- oh, yeah, I did. Q. Oh, you did? A. Yes, sir. MR. OSTROWSKI: That's, I'd ask Mr. Kitchen to produce that under Subpoena. BY MR. OSTROWSKI: Q. Is that available? A. What, the rebuttal, that I put out? Q. You, you wrote a memo on, that ended up on computers? A. You want me to get it? Q. Yeah. I just want what you wrote. Did you make, did you write anything about Larry James and this dispute? A. To my recollection -- Q. I'd ask you not to refer to the document unless we need it to -- you can -- MR. KITCHEN: That's asked and answered, Your Honor. He said he did and he got up to get it. Now he's got it. THE COURT: I don't even have in mind what the question was. There was so much interruption. Start from scratch. MR. OSTROWSKI: Well, that's why I re-asked the question. BY MR. OSTROWSKI: Q. Did you write any, did you write anything about Larry James and this lawsuit? A. Did I say anything to anybody -- THE COURT: Did you write? THE WITNESS: In this letter. BY MR. OSTROWSKI: Q. Okay. And what, what's the date of the letter? A. The date is -- MR. OSTROWSKI: Can we mark it? THE WITNESS: 2/6 -- 2/26/93. MR. KITCHEN: Mark that Plaintiff's Exhibit 33. (Plaintiff Exhibit 33 marked for identification.) BY MR. OSTROWSKI: Q. What's the date of the letter which is Plaintiff's Exhibit 33? A. 2/26/93. Q. And where did this go to? A. That was sent out on the Echo Mail system from -- THE COURT: Sent out what? THE WITNESS: On the Echo Mail, electronics system, electronic mail. THE COURT: Is that E-C-O, or E-C-H-O, or neither? MR. KITCHEN: E-C-H-O, Your Honor. BY MR. OSTROWSKI: Q. Okay. And how many -- THE COURT: Now, electronic mail system, what do you mean? What do you mean when you say electronic mail system? THE WITNESS: It's a computer bulletin board mail system which you put messages in. THE COURT: Into a bulletin board? THE WITNESS: Yes, sir. THE COURT: And you said there were a whole bunch of bulletin boards, 55 or something, and you had one. THE WITNESS: Yes, sir. THE COURT: Go to yours? THE WITNESS: No, sir. THE COURT: All of the others? THE WITNESS: Pardon? THE COURT: It go to all the bulletin boards? THE WITNESS: It goes to almost all of them, but I was not in the Echo mail at the time that was done, no, sir. THE COURT: I see. BY MR. OSTROWSKI: Q. Where does the Echo operate out of? A. The Echo operates out of -- that one there where I -- that one is out of Virginia. Q. And do you know -- THE COURT: We got all these bulletin boards, but now you're talking of, quote, that one, unquote. BY MR. OSTROWSKI: Q. The Echo operates out of Virginia? THE COURT: Is Echo a bulletin board? THE WITNESS: Yes, sir. THE COURT: And that's in Virginia? THE WITNESS: This one is. This is a network off of it. There's more than -- THE COURT: Echo is nationwide, maybe worldwide. THE WITNESS: Yes, sir. THE COURT: And this is a, quote, an offshoot, unquote? THE WITNESS: Yes, sir. THE COURT: What do you mean, an offshoot? THE WITNESS: Well, it means that really it's not like Compuserve. Compuserve is a big E mail system. This is not a big -- it's big, but not big. THE COURT: Not a subscriber to this worldwide Echo? THE WITNESS: Not on most systems, no, sir. THE COURT: So it gets what, dribs and drabs? THE WITNESS: Some people apply to it, some people don't. THE COURT: Some people what? THE WITNESS: Some people, you know, sign up for it, some people don't. THE COURT: But they would sign up for it to get information from it. THE WITNESS: Yes, sir. THE COURT: And if the Virginia, whatever it is, isn't on the full worldwide Echo network, then it doesn't get everything that's on the network. THE WITNESS: Yes, sir, that's correct. THE COURT: It does not. THE WITNESS: It does not. THE COURT: Now, that would have nothing to do with what people sign up to get from it, would it? THE WITNESS: No, sir. THE COURT: They would, people would sign up to get from it whatever was there. THE WITNESS: Yes, sir. THE COURT: All right. BY MR. OSTROWSKI: Q. How many people have access to the Echo bulletin board system? A. I have no idea how many users. Q. Well, do you know of anybody else in this area who uses it? A. I do not. Q. Why do you use it? A. I do not use it. Q. Did you want this memo to go out to a lot of people? A. That was sent out for me, yes, it was. THE COURT: Sent out for you? THE WITNESS: Yes, sir, it was. THE COURT: By? THE WITNESS: A Ray Harold. THE COURT: Who is he? THE WITNESS: He owns a computer business, TCM Computing. BY MR. OSTROWSKI: Q. Do you recall making the statement, anyone implying that we're using a program that does not belong to us is spreading an outright lie? A. Yes, sir, I remember that statement. Q. Do you recall writing -- well -- THE COURT: Not in evidence. BY MR. OSTROWSKI: Q. Showing you Plaintiff's Exhibit 33, this is your writing, is that correct? A. No, sir, it's not. Q. Well -- A. It was drafted by Ray Harold, and I signed it and approved it to go out. Q. Okay. MR. OSTROWSKI: I'd offer it in evidence, Your Honor. MR. KITCHEN: No objection. THE COURT: Received. (Plaintiff Exhibit 33 for identification was received in evidence.) BY MR. OSTROWSKI: Q. Well, on the second page at the top, I'd ask you to look at it, and there's a reference to this particular individual, four lines down. Does that refer to Larry James? A. No, sir, that does not. Q. Okay. Who does it refer to? A. Greg Armenia. Q. Other than the three people in California, have you spoken to anybody about the case? A. To my recollection, no, sir. Q. Have you made any efforts to encourage people not to hire Larry James as a computer programmer? A. No, sir. Q. Have you been -- have you told people that he's a liar? A. No, sir. Q. Or that he stole your program? A. No, sir. MR. OSTROWSKI: Your Honor, I don't have much more. I'm just looking through my notes to make sure I haven't missed anything. THE COURT: Mr. James has some more for you. BY MR. OSTROWSKI: Q. You did talk to Robert Depew about the case, didn't you? A. Robert Depew called us about it, yes. Q. And did you tell him that Larry James took your program? A. He already knew that. Q. Did you tell him? A. No, I did not. Q. Now, the program that Jeff Anderson wrote for you in Quick Basic, you weren't happy with that, correct? A. For that period, yes, I was happy with it. Q. Well, did you state at the preliminary hearing that, quote, that Night wasn't the way I wanted it? A. It wasn't the way we wanted it, no. Even Jeff knew that. Q. Okay. And you didn't really think that Jeff could fix it up for you, did you? A. Yes, I do think he could. Q. Okay. A. He didn't have the time. Q. But didn't you say at -- I'm sorry? A. He didn't have the time. Q. Okay. He -- didn't you say at the preliminary hearing that, he couldn't do what I need done? A. I don't recollect saying that that way, or meaning it that way. Q. You wanted an abstract of view added? A. Yes, sir, I did. Q. PK.UNZIP? A. Yes. PK.UNZIP, yes, sir. Q. And I think there's already been testimony about that, that you compress the program and UNZIP allows you to use it? A. Yes. Q. I don't understand it, but, you wanted it to, quote, do DOS commands. What, did you -- does that ring a bell? A. The PK.UNZIP, yes, PK.UNZIP is a DOS command. Q. And you wanted it -- A. Copy is a DOS command, and be able to exit the DOS and stuff like that, yes. Q. You wanted to be able to copy files to a hard disk? A. A hard drive or a floppy, yes, sir. Q. Okay. And Larry added those features, didn't he? A. Yes, sir, he did. Q. You don't dispute that? A. No, I don't dispute that. Q. And that the new, the version that he produced was more convenient, easier and faster, you agree with that? A. To part of it, yes. Q. Wasn't that, isn't that what you testified to in the preliminary hearing, that it was, quote, it was more convenient, much easier, faster, quote? A. I'm not quite that sure what I said, but it did do everything he said it would do. Q. Okay. Showing you the transcript of the preliminary hearing, page 42, line -- MR. KITCHEN: Excuse me. What? MR. OSTROWSKI: Page 42, line 17. BY MR. OSTROWSKI: Q. Could you just read those few lines, down to the bottom of the page, and ask if that refreshes your recollection about what you said? A. You want me to read the question. THE COURT: Beginning at what line? MR. OSTROWSKI: Just to yourself. THE COURT: Beginning at what line? MR. OSTROWSKI: Line -- THE WITNESS: 17. MR. OSTROWSKI: Line 17. THE COURT: Well, that, you got to go back earlier. THE WITNESS: Yes, sir. All right. MR. OSTROWSKI: Well, what this can -- THE COURT: I was asking him what DOS meant, isn't that the line, page 17 -- 42, I'm sorry. I'm on -- MR. OSTROWSKI: I'm sorry, Your Honor. Page 42. THE COURT: I was on page 17. BY MR. OSTROWSKI: Q. Now, specifically with respect to lines 19 through 21, you've had a chance to look at those? A. I looked at 19. Q. By the way, if you look at the top of the page, was that, does that say direct? A. It says Graham direct, yes. Q. Okay. And is it fair to say that you stated at the hearing that it was more convenient -- I'm paraphrasing, but you've had a chance to look at it -- it was more convenient, much easier, and faster? A. Now you've added things in that's not even in there. Yes, sir. Q. Well, doesn't line 17 say, is this another way of saying it was essentially more convenient. Answer, more convenient, much easier, is that your answer? A. That's, yes, well, that's the two answers, yes. Q. Okay. And then, question, all right, by Mr. Kitchen. Was it, was it faster for the user to be able to get around in the thing. Answer, yes, sir? A. Now that was another question. Q. Right. Did you give -- is that the question that was asked? A. Yes, sir. Q. And you gave that answer? A. Yes, sir. Q. Okay. Is it correct that the first release with the Larry James program was May 6th, 1991? A. No, sir. Q. When was it? A. April 23rd, 1991. Q. Did you have that Quick Basic program in your own computer? A. At one time I did. Q. I'm sorry? A. At one time I did. Q. Well, at the time when, you know, back in April of '91, when -- A. Yes, I did. MR. KITCHEN: Excuse me. But I'm confused when he says the Quick Basic program, does he mean the commercial Quick Basic program or does he mean the Quick Basic version of Night.EXE? MR. OSTROWSKI: No, I'm -- yeah, I'm sorry. I mean the programming language Quick Basic. THE WITNESS: On my computer on what date? BY MR. OSTROWSKI: Q. At the time when Mr. James was writing his first version, around April '91? A. No, sir, I did not. Q. At the preliminary hearing, did you state that you sold 4,000 disks last month? A. I think I said 400. I might have said 4,000. I don't quite recollect. And that's not talking about one individual product. Q. Well, when we talk about selling disks, here we're concerned with CD ROM disks? A. Right. Q. Are there some other disks that you sell? A. Yes, sir. Q. Well, let me ask you, did you sell, did you sell 4,000 disks in November of '91? A. I'd have to look at my records and find out. Q. And do you recall what you said at the preliminary hearing? I'm not sure what you said just a minute ago. Do you recall what you said at the preliminary hearing, whether you said 4,000 were sold in November? A. I'm not positive if it was 4,000 or 400. Q. As far as what you said at the hearing, or what happened? A. I'm not sure. THE COURT: The question is what he said at the hearing. THE WITNESS: I'm not sure what I said at the hearing. BY MR. OSTROWSKI: Q. Showing you -- A. I know I went off financial reports though. Q. -- page 83 of the hearing, at line 6, does that refresh your recollection as to what you said? A. Right here? Q. No, up here. A. I'm sorry. Okay. That's got to be it, close, yes. Q. And those were CD ROM disks, correct? A. Yes, sir. Q. And those were CD ROM's with Larry James' program on, correct? A. November. Q. November of 1991, well, when you say last month in here, what, this was December 21st. A. So it would be November. Q. So were you talking about November? A. Right. Q. I'm sorry? A. That would be November, right. Q. And those 4,000 disks have whose file -- A. I'd say a percentage of all of them had Larry's on it, right. Q. A large percentage? A. Yes. Q. And did you say at the hearing that you were selling 400 a week on a contract? A. At that time, yes, we were. Q. Is that wholesale or retail? A. That was wholesale. The 4,000 was wholesale, too. Q. And you stated that your file retrieval system at that time was the best on the market? A. My opinion, yes, it was. Q. And you were referring to Larry James? A. Yes, I was. Q. And that you could sell it to other, your other competitors for about $6,000? A. I never offered to sell it. Q. Well, could you have? I'm asking you what you testified? A. I have no idea because I never tried to sell it. Q. Well, did you testify to that, that you could? A. Yes, I did. Q. And how many other people were in the market at that time? A. Five of us, six of us. Q. I'm sorry, five? A. Five or six. Q. Well, there was more like 20, weren't there? A. Not to my recollection. I can name the five of them pretty much right now. Q. Do you recall being asked how many there were? A. Yes, I do. Q. And what did you say? A. I think I said 20, but I think there was only five. Q. Well, were you trying to inflate the amount of damages you were -- A. No, I was not. Q. Well, let me just ask the question. What were you at the hearing for? To get an injunction, correct? A. Yes, sir. Q. And were you trying to inflate the amount of damages that you were at risk for by saying it was 20 instead of five? A. No, sir, I was not. Q. Okay. You said it was 20 though, didn't you? A. I think I said it was 20, but I'm not sure. Q. I'll show you in a second. Showing you page 102, cross examination, at line 14. Would you just read those lines and down. A. Okay. Q. And did you say there were 20? A. Yes, sir, I did. Q. And that you could sell the program to 20 for $6,000? A. No, sir. Let me read it. I didn't read that. Q. Well -- A. You didn't tell me to read down there. Q. You're right. I am skipping ahead. A. Yes, I guess you are. Q. But you did say there were 20? A. Yes. Q. And you did say that you could sell to one company a license to use your program for $6,000? A. I didn't say I was selling it. I never claimed to try to sell the retrieval. Q. I know that. A. I never tried, so I don't know. Q. Well, did you testify to that? A. You asked me if I could sell it. Q. I know I did. Did you testify to that, that you could sell it for $6,000? A. If I sold it, I thought I could. Possible, yes. Q. You didn't want to, but you could have? A. Possibly. Q. Okay. And $6,000 times 20 is $150,000, isn't it? A. No. $120,000. Q. You're right. My math is bad. Well, yeah, you corrected me at the hearing, too. Your math is much better than mine. A. I didn't mean to do that, sir. Q. Well, I don't want to be inaccurate by $30,000. So at that time the program had a potential value of $120,000? A. Yes, sir. Q. Okay. A. Well, that's if you sold it. Q. Right. A. And you can get $6,000. Q. Larry James was trying to sell it, wasn't he? A. That's what I was made aware of, yes. Q. And that's why you got the injunction? A. That's why I got the injunction. Q. And since it was the best program on the market, these other companies were likely to have been interested in it, if it had been offered, correct? A. It's possible. Q. Now, we went over this before a little bit, but did you say at the preliminary hearing that the Brian Martin program, his first one, I think that's Plaintiff's 19, the one that has Brian's work on it in your handwriting. A. Yes. That's, that was where he introduced code into Larry's, yes. 12/13 of '91. Q. Do you recall being asked at the hearing about that and saying that Larry's work had been 85% removed, redone? A. Yes, that's what I was told, yes. Q. That's what you testified to? A. That's what I testified to. Q. Okay. But that's not true? A. I'm still not sure. Q. Plaintiff's Exhibit 16, can you identify it? A. Yes, sir. I think that was the other tape that Greg made of Larry. Q. Now, this was a phone conversation between you and Larry, correct? A. Yes, sir. As far as I know. Q. I don't intend to play it. I represent to the Court, I don't think it's in dispute that this is between Larry and, Larry James and Mr. Graham. This was a conversation between you and Larry? A. Yes, it was. Q. Would you like me to play a snippet of it just so you can verify the voices? MR. OSTROWSKI: Any objection? THE COURT: Not in evidence. MR. OSTROWSKI: I'd offer it in evidence. MR. KITCHEN: No objection. THE COURT: Received. (Plaintiff Exhibit 16 for identification was received in evidence.) BY MR. OSTROWSKI: Q. With respect to -- well, you haven't played it, so I'm not going to ask you specific questions about it. MR. OSTROWSKI: I have nothing further, subject to hopefully recalling the witness when we receive further documents that have been requested and not received. THE COURT: You haven't even talked with Mr. Kitchen about that. I've suggested it a couple times, and I don't think you've even asked Mr. Kitchen about documents requested and not produced. MR. OSTROWSKI: I -- THE COURT: You keep talking with the witness about it, who wasn't the addressee of your request. MR. OSTROWSKI: I did Subpoena the records. I have not discussed it with counsel. THE COURT: Talk with Mr. Kitchen. He's sitting there right behind you. What is it that you've requested that you haven't received? MR. OSTROWSKI: Well, we haven't received the financial records from several of the releases. MR. KITCHEN: Your Honor, I was under the impression that the figures brought in by my client essentially covered the requested or Subpoenaed data, and apparently they do not. They fall short. THE COURT: And now you produced these just very recently. MR. KITCHEN: Oh, yes, sir. THE COURT: Yeah. MR. KITCHEN: Now -- THE COURT: And since that time you've had no colloquy with Mr. Ostrowski about it. MR. KITCHEN: That's correct, Your Honor. THE COURT: Yeah. So I suggest that you have that colloquy and find out where you are and get it straightened out. Shall we say 1:15? MR. KITCHEN: Yes, sir. THE COURT: All right. Recess. (Recess taken.) MR. OSTROWSKI: I just received some financial records from Mr. Graham. They look to be about 20 or 40 pages. I'm sure it's not as complicated as it looks. I would prefer to be able to recall the witness later just to cross examine him on these documents. A cursory look indicates that they are relevant. They have to do with profits from the business. If I were to put that off to a later time in the trial, I believe it would take less time, being more organized in my -- basically just gross revenue figures of his business, or, and whatever else I find in there. So I guess I'm asking you -- THE COURT: Any objection, Mr. Kitchen? MR. KITCHEN: Well, Your Honor, I guess my problem with that is that the cross examination was kind of lengthy and I thought somewhat repetitious, and I'd like to get to the point where Mr. Ostrowski says that he is done. I -- THE COURT: I guess the answer to that is we just take the time you need to go through and get yourself organized, Mr. Ostrowski, and then we'll pick up. We'll just stand in recess until you're ready. MR. OSTROWSKI: Well, the other issue, Your Honor, is with respect to -- well, the other remaining issue would be with respect to the sales figures of the disks that Mr. Graham stated he doesn't have the figures on those yet, but he's going to attempt to get them. And that's obviously relevant. Some of them were I believe even releases that he admitted were similar to Larry James, but we're not conceding anything at this point. So that would be another issue that I would ask to recall him on that specific basis, once I receive those documents. THE COURT: Do you have another witness here? MR. OSTROWSKI: I believe -- THE COURT: Mr. Kitchen? MR. OSTROWSKI: -- Mr. Kitchen has several. MR. KITCHEN: Oh, yes, I do have other witnesses, Your Honor. THE COURT: Why don't we interrupt the testimony of Mr. Graham and go on with another witness. MR. KITCHEN: That would be fine. Let me go get the witness. (CHARLES W. MORGAN, Plaintiff Witness, Sworn) THE COURT: And what is your name? THE WITNESS: Charles Morgan. THE COURT: Charles Morgan. You use a middle initial? THE WITNESS: W. THE COURT: And where do you reside? THE WITNESS: In Lake View, New York. THE COURT: Street address? THE WITNESS: 5943 Rosewood Terrace. THE COURT: Lake View. THE WITNESS: Lake View, two words. THE COURT: Thank you. New York? THE WITNESS: That's correct. DIRECT EXAMINATION BY MR. KITCHEN: Q. Mr. Morgan, are you acquainted with Richard Graham? A. Yes, I am. Q. About how long have you known him? A. Five or six years. Q. Are you in business, sir? A. Yes, I am. Q. And what is your business? A. Computer related sales. Q. Okay. THE COURT: What? THE WITNESS: Computer related sales and things. THE COURT: What's that mean? THE WITNESS: I sell computer equipment. I sell -- I do things for people that involve computers. THE COURT: You're a fixer and a seller? THE WITNESS: I service computers, too, yes. BY MR. KITCHEN: Q. Where is your business located? A. It's located in Derby, New York. Q. Okay. Is there a name for the business? A. The Evans Square Computer Center. That's the name of the store. THE COURT: The name is what, Mr. Morgan? THE WITNESS: Evans, the Evans Square Computer Center. My personal business name is Custom Computer Concepts. BY MR. KITCHEN: Q. How long have you been in this business? A. Actually started the business in 1989 out of my home. I've been in business at the Evans Square Computer Center for one year and a few days. Q. How, how did you happen to become acquainted with Richard Graham? A. I guess basically we met over the bulletin board services. Q. And what is your business, what's your current business relationship with Mr. Graham? A. I do contract work for Richard on and off. Q. Like what? What does that usually involve? A. Well, occasionally he'll get overloaded with files that need sorting. He asks me if I want to, you know, sort some files for him or correct directories, make sure the spelling is correct on them and -- THE COURT: Sorting of files I take it is not a physical endeavor but it's done through computer. THE WITNESS: It's done on the computer, yeah. BY MR. KITCHEN: Q. Okay. Have you ever done any programming? A. Many, many years ago. Q. Okay. What kind? A. Basic. Q. All right. And are you a programmer? A. No. Q. Do you do any programming now? A. None. Q. Have you been involved at all with somebody who's been writing or making a program? A. Only when Richard started writing his retrieval, I tried to give him some guide -- he was trying to write in Quick Basic, which is a computer language, and he didn't know how to do some things in it, and I was trying to guide him with my rudimentary basic knowledge. And it turned out that really the stuff that I was trying to help him with, what I said to do, would not work anyway, so -- Q. Okay. Approx -- do you recall approximately when this was? A. Well, probably at least four years ago. Q. Okay. And do you know Jeff Anderson? A. I've met him. Q. Okay. Did -- when you were trying to assist Richard in writing this retrieval program, was there anybody else helping him at that time? A. No. Q. Did you have any discussions with Richard about getting somebody else? A. Not really. I, you know, we sat down, both of us were sitting there trying to think about how things might work, and when I left Richard, he was still working on it. And it was maybe a few days later, maybe a week later, that I spoke to Richard again about it, and by that time he had hooked up with this Jeff Anderson fellow that I guess was helping him make the retrieval work better. Q. Okay. Did you subsequently see that retrieval? A. Yes, I did. Q. Did you see that it, whether or not it worked? A. Yes, I did. THE COURT: Did it? THE WITNESS: Yes. BY MR. KITCHEN: Q. Yes. Okay. Now, during the course of your contact with Richard, have you had an opportunity to form an opinion as to his, his business practices and honesty? A. Yes, I have. Q. Okay. And what is your opinion? A. My opinion is that he's too honest. Q. Why do you say he's too honest? A. I've never known Richard to -- MR. OSTROWSKI: Objection. He's a character witness. I believe he's only allowed to testify as to reputation and not specific instances of honesty. THE COURT: Well, he was starting to generalize that he's never known him to do such and such. That's generalization. I'll allow that. BY MR. KITCHEN: Q. Okay. Go ahead. A. Like I said, I've never known Richard to set out deliberately to hurt somebody in business. I've always complained to him that I thought he was too honestly doing business. He took too many people's word for things, and when he gave his word he meant what he said. And he's always been that way, to my knowledge. And he expects people to be the same way with him, but obviously, you know, not. Q. Have you been at all involved in the sale of CD ROM disks? A. Yes. Q. Okay. How about the Night Owl that Richard makes? A. Yes, I do. Q. Okay. Do you retail that to people? A. Yes, I do. Q. Is that in your store, you have it available? A. At this particular moment, yes, I have it. Q. Okay. How long have you been carrying his CD ROM disks? A. I've carried Night Owl's products right from the beginning, or right from the time we opened the store up. Q. Okay. Is there, is there like a manufacturer's suggested retail price on those disks? A. There has been manufacturer's retail prices, yes. Q. Okay. And that, by the way, is that commonly referred to as an MSRP? A. Yes. Q. Okay. What is the MSRP on the Night Owl disk? A. Currently? Q. Yes, sir. A. $49.95. Q. Okay. And what is it actually sold for in your store? A. $29.95. Q. Okay. And who, do you buy them directly from Richard? A. Yes, I do. Q. You don't buy them through a middleman or a distributor or anybody? A. No. Q. Okay. What do you have to pay for them? A. $16 apiece. Q. Okay. How many quantities do you buy at one time? A. He's never held me down to a particular quantity. I've been known to buy as many as 25 at a shot of a particular version, and I've also been known to buy one or two. Q. Now, which version is the current one? A. Version 9. Q. Okay. And have you paid the same amount for previous versions? A. Yeah. In fact, on previous versions I've paid more. Q. Okay. So the wholesale price has gone down a little bit for you? A. A little bit. Q. Okay. MR. KITCHEN: No further questions. CROSS EXAMINATION BY MR. OSTROWSKI: Q. Mr. Morgan, I'm James Ostrowski, Mr. James' attorney. A. How do you do? Q. I'm fine. How are you? You stated, how many -- have you been buying CD ROM's from Richard throughout the whole series of 1 to 9 and so on, or how far back? A. Oh, no. I, with the exception of CD ROM's for my own personal use, I haven't, you know, I bought earlier versions for my own personal use on my bulletin board, but buying them for resale, I only bought them, oh, this past year. Q. Oh, so just version 9? A. No. For resale I've had version 5, 6, 7, 8. Q. Well, how much did you pay for version 9? You buy these wholesale from Richard, right? A. Excuse me? Q. You buy these wholesale from Richard, correct? A. Yes, I do. Q. And how, if you recall, how much did you pay Richard for version 5 disks? A. Without going through my records I really, I don't, can't recall, to be honest with you. Q. Can you estimate? I believe you said it was higher in the past. A. I think what I said is that I paid higher prices in the past for CD ROM's that I bought from Richard. I didn't specify which one. Q. Right. Well, that's all I'm asking you, if you recall, can you give an estimate as to the wholesale price you paid for 5. If you can't, you can't. A. For 5, $18. Q. And now version 6, are you aware that there's a couple different version 6's, or does that ring out in your mind? A. Yes, I am aware of it. Q. Do you know which ones they were, 6, 6-1/2 or so on? THE COURT: 6-1/2? THE WITNESS: I know what the versions were. MR. OSTROWSKI: 6, I'm sorry. THE COURT: 6.1, 6-1. BY MR. OSTROWSKI: Q. 6-1. A. I know which version there were out, 6, 6-1, 6-2. Q. Well, do you recall, and if it's different for each one you can tell me, but do you recall roughly estimating what you paid wholesale for this version 6 CD ROM? A. Again, I want to say $18. Q. And how about 7, version 7? A. I can't, I can't recall on version 7. Q. But presumably it was either $18 or $16 or thereabouts? A. Well, prices have fluctuated up and down, depending on the market, and I believe that 7, I think I might have been paying around $20 apiece for them. Q. 7, $20? A. Yeah. Q. Okay. Now, how much, let's say in the last, in the last year, how much -- you said Richard hires you to do work. How much total -- is that a yes? You've got to -- it's being taped, so, was that a yes? A. I have no idea. Are you asking me a question? I'm -- Q. You do work for Richard on occasion? A. That's what I was, I was shaking my head yes. Q. Yeah, okay. I'm just pointing out that this is the new version, and it's taped, so, but even under the old version we'd ask you to say yes or no for the record. In the last year -- and he pays you for this work? A. That's correct. Q. In the last year how much has he paid you for any of the work you've done for him? A. All the work that I have done for him, you talking about 1992 and '93? Q. Last 12 months? A. Last 12 months. Q. However you want to specify it, but basically the last 12 months? A. $2,000 plus. Q. And in prior years, was it roughly the same or different? A. No. Q. More or less? A. Less. Q. Okay. Are you familiar with any reports that Richard had cheated Larry James out of his program? A. I've heard that. Q. You have heard that. How many different people? A. Well, let me -- MR. KITCHEN: I'll object, Your Honor. Calls for hearsay. MR. OSTROWSKI: He's a character witness. THE COURT: Bears upon his character, testimony, I'll allow it. BY MR. OSTROWSKI: Q. I'm sorry. How many different people have you heard that from? A. Can we clarify the word heard? Q. You used it. A. Could I have read it somewhere? Q. Read or heard? A. Okay. In the, in the bulletin board Echo mail, I've seen it from a number of people. I couldn't give you a count on it. It's just very prevalent. Q. Okay. Have you heard from anyone that Mr. Graham cheated, I can't remember the man's name, I've got a mental block, but are you familiar -- THE COURT: That isn't going to help, that isn't going to help the witness. BY MR. OSTROWSKI: Q. Have you heard that Mr. Graham cheated someone out of a business known as C.A.R.R.S.? A. No. Q. Does Mr. Graham advertise? A. No, I don't think he does. Q. Can you give an estimate of how many CD ROM's you've bought wholesale from Mr. Graham just, let's say starting with, I think you said you started with 5, 5 through 9? A. In my retail operation, probably it was version 5, yes. I probably totally purchased maybe 50 disks from him of all versions since I've been in business at the store. Q. I'm sorry. I forgot to ask you about version 8. How much did you pay for that? A. Again somewhere between $18 and $20. I'd have to consult my records. Q. I'm just asking you for an estimate. A. Excuse me. Q. I'm just asking you for an estimate. When you say you saw Jeff Anderson's retrieval system and it worked, how do you mean that? Did you run the program as a user would run it, trying to get into the CD ROM programs? A. I saw it run from the CD ROM. I also saw it run before it was on a CD ROM. Q. In what format did you see that? A. As a program that was supposed to be up and running, a working program. Q. Did you ever lock Richard Graham out of your computer system? A. Did I? Q. Yeah. A. Never. Q. Never. Did Richard Graham ever destroy any of your programs? A. Repeat that. I didn't hear it. Q. Did Richard Graham ever destroy any of the programs on your computer? A. On my computer? Q. Right. A. No. Q. What, do you know what the term dropping to DOS means? A. Yes, I do. Q. What does that mean? A. Related to a bulletin board, it means when the person using the board from a remote system actually drops out of the bulletin board program to the DOS level on your computer, on the bulletin board's computer. Q. And did you ever prevent Richard Graham from doing that after you had allowed him to? A. No. MR. OSTROWSKI: No further questions. MR. KITCHEN: Nothing further. THE COURT: Thank you, Mr. Morgan. THE WITNESS: You're welcome. (Witness excused.) MR. KITCHEN: I have another witness I could call, Your Honor, if that would, if Mr. Ostrowski still needs some more time. THE COURT: Well, I'm sure that Mr. Ostrowski hasn't had the opportunity he needs to get up to speed on his further cross examination of Mr. Graham. MR. OSTROWSKI: No, I have not, Your Honor. MR. KITCHEN: Okay. I'll call the next witness then. (RALPH A. Markwardt, Plaintiff Witness, Sworn) THE COURT: And you are? THE WITNESS: Ralph Markwardt. THE COURT: Spell the last name. THE WITNESS: M-A-R-K-W-A-R-D-T. THE COURT: You use a middle initial? THE WITNESS: A. THE COURT: And where do you live? THE WITNESS: Buffalo, New York. THE COURT: Street address? THE WITNESS: 334 Newburg. THE COURT: Take the witness chair, please. MR. OSTROWSKI: Your Honor, can I borrow that transcript again, unless you're using it, of course. Thank you. DIRECT EXAMINATION BY MR. KITCHEN: Q. Mr. Markwardt, are you employed? A. I'm self-employed. Q. Okay. And in what capacity? What do you do? A. I sell and service computers. Q. Okay. Do you have a business name? A. RAM Enterprises. Q. Graham Enterprises? A. RAM, R-A-M. Q. Oh, RAM, okay. How long have you been doing that? A. For about two years now. Q. Okay. What does that involve, what do you do? A. I sell computers, build computers for different people for certain applications, and service them if they have any problems. I sell peripherals for computers also. Q. Are you acquainted with Richard Graham? A. Yes, I am. Q. How long have you known him? A. For about six years. Q. Okay. And how have you known him? What has been the circumstances of your knowing him? A. Through bulletin boards. I was co-sysop on his bulletin board, and as a friend. Q. Do you recall who introduced you to Mr. Graham? A. Larry James. Q. How long have you known Larry James? A. About the same if not a little bit longer. Q. Okay. Have you had any kind of employment or business relationship with Mr. Graham? A. I have had some business relations with Mr. Graham. I have sorted out files for him and I was co-sysop of his BBS. Q. Okay. Could you describe for us what a co-sysop is? A. The co-sysop helps the sysop run a bulletin board system. It's a, where you can call in with your computer and leave messages, upload, download files, and different information, get information retrieval and stuff like that. Q. Okay. Anything else you've done for Mr. Graham, businesswise? A. Not that I can recall right at this time. Q. Okay. What was the nature of your relationship with Larry James? A. We were in the same users group. He was the President and I was Vice President for a while. And let's say we were friends also. Q. Have you done any business with Larry James? A. I've sold him a couple products. Other than that, not business associates, no. Q. Okay. Do you do any computer programming? A. I used to a long time ago, but nothing, you know, professionally. Q. Okay. So you don't consider yourself a computer programmer? A. No. Maybe a hacker, which gets into programs and changes some times, but nothing more than that. Q. Okay. Are you acquainted with the Night Owl Retrieval System? A. Yes, I am. Q. Okay. You're acquainted with the Night Owl CD ROM disk? A. Yes, I am. Q. Do you remember when the CD ROM disks, the Night Owl CD ROM disks, were first prepared? A. Roughly, yes. Q. Okay. When was that approximately? A. In around '91, early part of '91. Q. And that was, you were acquainted with Richard Graham at that time? A. Yes, I was. Q. Okay. Have you used those disks? A. Yes, I do. Q. Okay. And are you acquainted -- well, are you acquainted with the retrieval system used on the disk? A. Yes, I am. Q. Could you just describe for us what your understanding is of what the purpose of the retrieval system is? A. The purpose of the -- MR. OSTROWSKI: Objection. I don't think there's a foundation as an expert witness. MR. KITCHEN: Well, we're not asking him as an expert witness. We're just asking him, he's seen the disk, he's operated the disk. I just want his, as a user, his telling us what he's observed about the retrieval system. MR. OSTROWSKI: I withdraw the objection. THE COURT: I'll allow this answer. THE WITNESS: The retrieval system that is on the Night Owl disk, goes out, get the program, and either executes it or extracts programs from with inside the -- THE COURT: What do you mean, goes out? THE WITNESS: The program gets the file -- THE COURT: You said it goes out. THE WITNESS: It goes out onto and gets a file from the CD ROM. THE COURT: It's set up in here, the computer is here, it goes into itself and gets it? THE WITNESS: It goes into, onto the CD and gets the program. THE COURT: From itself. THE WITNESS: From the compact disk. THE COURT: Yeah. THE WITNESS: Yes. THE COURT: From its own self. THE WITNESS: And it either extracts the file and uses the programming within it. You could read the programming within it, and you can execute the program. MR. KITCHEN: Okay. THE COURT: Now, what do you mean, execute the program? THE WITNESS: Run -- if it -- as an example, if it's a game, you would go onto the CD -- THE COURT: You can play the game. THE WITNESS: -- and you would extract the game. You would have maybe documentation that you could read, or you could execute the game and play the game. THE COURT: Execute it means you put it up on your screen or monitor? THE WITNESS: Yes. THE COURT: And then you can, by use of the keys, play the game? THE WITNESS: Yes. THE COURT: Once you have brought up this particular program, you've retrieved this file or program from the disk? THE WITNESS: Yes. BY MR. KITCHEN: Q. Did Mr. Graham's earliest disks have this retrieval system? A. It had a crude version of it, yes. Q. And were you acquainted with Mr. Graham's efforts at making the system less crude? A. Yes. My part was that I introduced Larry James, who was doing basic programming, and I figured I would get the two gentlemen together to improve the retrieval system. Q. Well, what was your understanding of how the situation existed before Larry James was brought into -- A. Could you repeat that? Q. Well, what was your understanding of what the current situation was with regard to the retrieval before Larry James was introduced to Richard? A. 'Cause at the time Richard was trying to improve it, the retrieval system. Q. Did he have a retrieval system? A. Yes, he did have a retrieval system. Q. Was it on one of the published disks? A. Yes, it was. Q. And did it work? A. Yes. Q. Did you use it? A. I had run the program, yes. Q. Okay. And it did retrieve? A. Yes, it did retrieve. But I figured it could be improved. Q. Did you have any, did you have any ideas yourself as to how you thought something like that might be improved? A. Yes, I have several ideas -- Q. Okay. A. -- on how it could be improved. Q. Like what? A. Different type of menuing, of how to select the file, and different options in the program. Q. Like what options? A. One of the options was that I suggested if the scroll bar would only go down halfway and the programs go up. THE COURT: Scroll bar? THE WITNESS: Which is a bar across the screen that would select something, and as you move it down -- THE COURT: It's not a physical bar, but it's something that appears to be a bar horizontally -- THE WITNESS: Yes. THE COURT: -- the screen you're looking at. THE WITNESS: Yes. THE COURT: All right. And you can move that up or down. THE WITNESS: Yes. THE COURT: All right. THE WITNESS: I suggested that you could move the bar down halfway and have the text move up from there on. BY MR. KITCHEN: Q. Now, was this suggestion based upon your knowledge as a programmer? A. Not as a programmer, as a suggestion of a user. Q. Okay. You, have you seen, had you seen feature like you were suggesting on, say, other programs? A. I think I have, but I could not state what the program was. Q. Now, you mentioned that this was on a menu, right? A. Yes. Q. Have you seen menus on other programs? A. Most, a lot of programs do have menus. We have a selection of which way you want to go. Q. Can you give us some estimate as to the years you have been working on these computer, computers and that sort of thing, how many different programs you looked at? A. Thousands. Q. Okay. Is the use of a menu at the beginning of a program, is that in common -- THE COURT: Use of a what? BY MR. KITCHEN: Q. Of a menu, in the beginning of a program, is that in common use? A. Pretty much so. A lot of the larger programs have different options to do different things, and they will give you an option of picking from the menu. Q. Now, this idea -- THE COURT: Once you have brought up, so to speak, a particular program, then you would find a menu for that program as to specific functions you might want to have it perform? THE WITNESS: Yes. BY MR. KITCHEN: Q. And this use of a light bar on a menu so that it appears over one selection and you can move it up and down to other selections, is that -- THE COURT: Is that something different than the scroll bar? THE WITNESS: No. It's -- MR. KITCHEN: Yeah, when I said light bar, I meant to say scroll bar. THE COURT: Scroll. BY MR. KITCHEN: Q. Is that in common use? A. Pretty much so. Q. Yeah, okay. Any other features that you thought you'd like to see on this retrieval system? THE COURT: Anything he'd like to see? MR. KITCHEN: That he would have liked to seen at the time that he was, before Larry James got involved. THE COURT: What relevancy does that have? MR. KITCHEN: Well -- THE COURT: What Mr. Markwardt would have liked to have seen? MR. KITCHEN: Well, Your Honor, I think we have -- THE COURT: Unless he somehow got together with Mr. Graham in that hope. MR. KITCHEN: Well, that's what I'm, that's what I'm leading to. THE COURT: Then start there. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Did you convey your, your ideas or thoughts to Mr. Graham? A. Yes, I did. Q. Okay. A. And I made a suggestion that Mr. James could help Mr. Graham out because Mr. James was doing programming. Q. Did, what did Mr. Graham think of your ideas for proposed improvements to the program? A. He thought it was a good idea. That's why he suggested that we meet at his house. Q. Did, did Mr. Graham -- THE COURT: We being who? THE WITNESS: By -- Mr. James, Mr. Graham and myself, meet at Mr. Graham's house. BY MR. KITCHEN: Q. Okay. Did Mr. Graham have ideas for improvements himself? A. Yes, he did. Q. Okay. And this is before Mr. James became involved? A. Yes. Q. Okay. And did he indicate that he wanted to make those changes on the program? A. Mr. James indicated that he wanted to make the changes, yes. Q. Mr. James or Mr. Graham? A. Would you repeat the question. Q. Well, I'm asking if Mr. Graham indicated that he wanted to make these changes -- A. Yes, yes. Q. -- in his program? THE COURT: You're not only leading, but you're correcting the witness. MR. KITCHEN: Well -- THE COURT: But go ahead. THE WITNESS: I'm sorry. MR. KITCHEN: Well, I asked a question with Mr. Graham in it -- THE COURT: Well, you don't understand, I'm trying to keep Mr. Kitchen from testifying and letting you do the testifying. MR. KITCHEN: Yes, Your Honor, my question I think originally involved Mr. Graham and the answer included Mr. James, so I'm not -- and by the way, to complicate the whole thing, Your Honor, I occasionally misspeak myself because I happen to know an individual named James Graham, and that's just been -- BY MR. KITCHEN: Q. But in any event, I'm talking about before Mr. James was actually pulled into the thing. I'm asking, you had discussions with Mr. Graham about changes that should be made? A. Yes. Q. Okay. A. I was at his house when he was trying to struggle to get the retrieval, you know, working properly. Q. Okay. A. And trying to make improvements on it. Q. Well, what did you do to bring the two together, James and Graham? A. I called Mr. Graham and asked him if he'd be interested in talking and have somebody improve his program for him. And he says yes, because he had other commitments that he had to do with his business, and so that's why I got Mr. James involved with the three of us. Q. What made you think that, that Larry James would be able to help Mr. Graham? A. Because I knew Mr. James did programming in Quick Basic, and I knew the program Richard Graham was using was, I think it was, I don't know if it was in Quick Basic or Basic. And it could be changed, and I thought Mr. James could help him out. Q. Okay. Did you feel that the, the common language between what Richard Graham's program was and Larry James -- MR. OSTROWSKI: Objection. Leading. THE COURT: Sustained. THE WITNESS: They're basically the same. THE COURT: Wait a minute. Wait for a question. BY MR. KITCHEN: Q. What was the importance of noticing that Richard's program was in Quick Basic and Larry's programming experience was in Quick Basic? A. I knew Mr. James' expertise was in Quick Basic. Q. Okay. A. Or his knowledge was in Quick Basic. Q. Yes, but why would that have been important? A. Because Mr. Graham had a retrieval that needed some work and modifications, and I figured that Mr. James could do it for him. Q. Okay. But why was it important that the, that the languages matched, the language of Mr. James' knowledge and -- A. Because if you're not knowledgeable in a specific language, you cannot make corrections and stuff like that efficiently. Q. Okay. So what did you do when Richard responded to you? What did you then do? A. So I contacted Larry James and asked him if he'd like to meet, and so we met at Mr. Graham's house to talk over the agreement. Q. What did -- did you tell Larry James what, what you had in mind, what you expected Richard would want him to do? A. I explained to him that he'd like him to modify his code for him. Q. Did you tell him what kind of a program, did you tell Larry what kind of a program -- A. It's a file retrieval program. Q. Okay. Did you tell him what it was for? A. I'm not sure I mentioned if it was for a CD disk or what it was for. Q. But you definitely told him it was a file retrieval program? A. Yes. Q. What did Larry say? A. He said that he'd be interested in talking to Mr. Graham about it. Q. Now, did Larry indicate to you at all at that time that he had already written a file retrieval program? A. At that time he didn't mention it, no. Q. Okay. Well, did -- well, okay. So you got the two together? A. Yes. Q. And were you present at the time? A. Yes. Q. Where was this? A. At Mr. Graham's house. Q. And approximately when was this? A. About mid-March. THE COURT: Of? THE WITNESS: Of '91. BY MR. KITCHEN: Q. Okay. And what occurred at that meeting? A. Mr. Graham had showed the code that he had. I think he had it from Mr. Anderson. Between Mr. Anderson and, had made up the code, and was showing Larry James the code and saying, you know, different things about the code and what he would like to have put into the code. And the two parties agreed that they could work on it, and at the time, Mr. James wanted a CD player for the payment to do the changes in the code. Q. So you were, you were just, you were kind of a witness to the conversation that took place during this meeting? A. During that meeting, yes. Q. Okay. Would you say that they appeared to have struck an agreement between them? A. I would assume they did, yes. Q. And your understanding of the terms of that agreement were, were what, in a nutshell? A. For the CD player. Q. Okay. For, for doing what? A. For updating the retrieval program. Q. Okay. Now, you said that he showed him some code, Richard showed Larry some code, right? A. Yes. Q. And this was for, from a prior program? A. Yes. Q. And you understood that program was made -- THE COURT: Wait a minute. Ask questions. MR. KITCHEN: Pardon me? THE COURT: Ask questions. MR. KITCHEN: Yes. BY MR. KITCHEN: Q. And did you know who made that program? A. Mr. Anderson -- Q. Okay. A. -- initially wrote the program and wasn't able to continue working on it. THE COURT: How do you know that? THE WITNESS: That's what I was told by both gentlemen, Mr. Anderson and Mr. Graham. BY MR. KITCHEN: Q. Now, what was actually shown to Larry James at that first meeting? A. It was the basic code that the two gentlemen wrote. That's what was showed to -- THE COURT: Which two gentlemen? THE WITNESS: Pardon me? THE COURT: Which two gentlemen? THE WITNESS: Mr. Anderson and Mr. Graham wrote the code, and that code was showed to Larry James. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Was there any discussion at that meeting of copyright or ownership of the program? A. Nothing was really said at that point. Q. Okay. And when, when Larry James left that meeting, did he take with him anything, any programs, anything that he would receive from Richard? A. For monetary value, you mean? Q. No, no, no, no. A. I think he took, I'm pretty sure he took the program on the disk because he was going to modify the program. Q. In other words, the Anderson-Graham program? A. Yes. Yes. Q. Okay. Now, during that meeting, at any time during that meeting, did Larry James say, oh, by the way, you know, I've already -- MR. OSTROWSKI: Object. Objection. This is obviously a leading question. THE COURT: Pardon me? MR. OSTROWSKI: It's about to be a leading question. He's giving a direct quote from something. MR. KITCHEN: Well, and I'm going to, I'm going to ask him whether he heard it or not. I don't know what -- THE COURT: Well, let's attack the matter more generally, rather than going right to the core of the thing. MR. KITCHEN: Okay. THE COURT: In other words, bring out the testimony from the witness. BY MR. KITCHEN: Q. Was there any discussion during the meeting about a file retrieval program previously written by Larry James? A. Nothing was mentioned, no. Q. Did Larry ever say anything during that meeting about writing a program, a file retrieval program himself? A. Not at that time, no. Q. Okay. A. What was contracted is to update the code. Q. Did, did Larry give any indication during that meeting with regard to his ability to do these, make these changes? A. He was confident that he could do it. Q. Did he, did he give any explanation for that? Did he say why he thought he was capable of doing it? A. Well, he has been doing programming, and I was confident that he could do it. That's why I got the two gentlemen together. Q. Well, okay. But did he, did he make any mention of previous experience with file retrieval systems? A. Not with file retrieval systems. Q. Okay. Following that meeting, did you have any subsequent contact with Larry James? A. Yes, I did. Q. Okay. A. Like I say, at -- may I continue? Q. Yes. A. At the time, Mr. James did not -- THE COURT: Wait a minute. No. No, you can't continue. Wait for a question. BY MR. KITCHEN: Q. What was that contact after the meeting? A. The contact was, Mr. James came over to my house to test out the code because at the time Mr. James did not have his CD player and was not able to test the retrieval program. Q. Now, you testified -- THE COURT: When was this? THE WITNESS: Within weeks after the meeting at Mr. Graham's house. THE COURT: 20 weeks, one week, or what? THE WITNESS: Two weeks, three weeks. BY MR. KITCHEN: Q. Were you present -- oh, excuse me. You said that one of the terms was for Mr. Graham to give Mr. James a CD ROM player? A. Yes. Q. Do you, were you present when this CD ROM player was ultimately delivered, if it was? A. I wasn't present when it was delivered, but I assumed by both parties that it was delivered. Q. Okay. Well, did Larry James ever indicate to you that he finally had gotten the CD ROM player? A. Yes. Q. Okay. And about how long was that after that initial meeting? A. Couple, few weeks. Q. Okay. A. A little bit after he was, you know, but he still was, we were working together, I was giving him different enhancements, Mr. James. THE COURT: Him is who? Him is who? BY MR. KITCHEN: Q. Him? A. As Larry James. Q. Okay. A. In the direction that Mr. Graham was very busy and wasn't able to, you know, give him all the instructions, and I had a lot of ideas about it. So Mr. Graham had me give him suggestions on what to put into the code. Q. Okay. And were these suggestions that you made to Larry, were they based upon conversations you had had previously with Richard Graham? A. Yes, it was. Q. Now, you say that you worked with Larry Graham, about how often did you get together -- excuse me. You said you worked with Larry James after this initial meeting. About how often did you get together for that purpose? A. Maybe once a week. Sometimes twice a week. And sometimes, it varied. Q. Okay. A. It depends on how the code went, and stuff like that. Q. And typically when you did get together, about how much time would you spend together? A. A couple hours, maybe a few hours. Q. All right. And where would you get together? A. Mostly at my house. Q. Okay. And for how long a time did this getting together process go on? A. A month, maybe two. I couldn't, I wouldn't -- roughly. Q. Okay. Did there come a time when, when he appeared to have completed his task? A. Yes. Q. Okay. Was that at the end of the meetings that you had? A. I think then he went to another version. Q. Okay. A. And then we continued for a while after that. Q. Well, before we get to that then, the meetings that you had, what would take place? He would come over to your place? A. Show me some of the changes that he's made in the code, and things that he's added and things, suggestions that I've made that were added into the code. Q. Any particular reason he would come to your place? A. I don't live that far from Mr. James. Q. Okay. But I mean, you could have met on a street corner to do this? A. We'd have to have a computer. Q. Ah, that's what I was driving at. Did he use your computer? A. Yes. Q. Okay. And what did he do? He'd come over, you have your computer, what would he do? A. He'd have, show me the code, or the program that he compiled, and would show me the features of it, of the program. Q. Okay. And then you'd discuss possible changes? A. Changes from that, yes. Q. Okay. Would he do any of the work like right there? A. If there was a, like a, like a mistake in the program, he may make a modification, and what you have to do is recompile it. And then we would run a working version of it. We did. Q. Okay. Did you get any remuneration for this, by the way? A. Like I say, I was doing file retrieval for -- or, looking through zip files and, from Richard Graham, and I felt that was enough of payment. Q. Were you getting -- THE COURT: What were you doing for Mr. Graham? THE WITNESS: Sorting files for copyright notices. BY MR. KITCHEN: Q. Did you get paid for that? A. Yes. Q. What, how much was, were you paid for that sort of thing? A. About $100 a month or so. Q. Okay. Do you know what that would work out to hourly? A. Not very much. But I didn't do it as a job per se. I did it part time. Q. Were you working at the time? A. No. Q. How were you supporting yourself? A. At the time, I was on unemployment. Q. Okay. What was your previous work? A. I worked for Westinghouse. I -- well, I was working for Kenilworth Electronics a little bit before that. Then I worked for Westinghouse. Q. Okay. After this initial program was completed by, the work was completed by Larry James, do you know if that was used in one of the published versions of the Night Owl disk? A. Yes, it is. Q. Okay. And were you aware of any other programming done for Richard Graham by Larry James after that? A. I don't, I'm not sure of how many retrievals he did for Richard Graham, I'm not sure. Q. Okay. Do you know what other languages Mr. James might have -- THE COURT: You say you don't know how many retrievals. You're saying, you don't know how many retrieval programs he -- THE WITNESS: How many updates or different retrieval programs, yes. THE COURT: Programs, yes. Not retrievals per se. THE WITNESS: Retrieval programs, because each program would be on a specific CD, and each CD would have an update to the retrieval. May I continue with your question? THE COURT: I interrupted. Rephrase, restate the question. MR. KITCHEN: To tell you the truth, I've forgotten what it was. BY MR. KITCHEN: Q. Whether or not Mr. James was, was experienced in any other programming languages that you're aware of. A. Well, while Mr. James was writing the retrieval, there was a introduction of Quick Basic -- or, C Plus Plus, which is a different computer language. THE COURT: You mean, that language came into the computer field at that point? THE WITNESS: It was in the computer field already. THE COURT: Already. THE WITNESS: But it's just a faster language, a language that can be, makes the program run faster. THE COURT: So that was around but then the decision or provocative thought that perhaps it could be used to make this retrieval system run faster. THE WITNESS: Faster and better, yes. THE COURT: Yeah. BY MR. KITCHEN: Q. And did Mr. James say anything to you about his abilities regarding the C language? A. He was in the process of learning the language. Q. Did he indicate to you how he was learning that language? A. I don't know what, if he -- THE COURT: Did he or did he not? THE WITNESS: I don't know how he -- THE COURT: Did he or did he not indicate to you? BY MR. KITCHEN: Q. Did he tell you how he learned it? A. Through a lot of help files and books. THE COURT: Did he tell you? THE WITNESS: Yes. THE COURT: All right. That was just the answer. Yes, he told you. THE WITNESS: Right. BY MR. KITCHEN: Q. Yeah. If the answer is yes, then the next question would be -- A. Yes. He did a lot of reading, and through a lot of books, yes. Q. But he didn't, did he indicate to you that he had any formal training with regard to C? A. No. Q. Okay. And were you present at any other meetings between Larry James and Richard Graham? A. Not that I know of, no. Q. Are you acquainted with a program called Folio? A. I have run it, but I don't know much detail about it, no. Q. Okay. A. It is also a file retrieval program. Q. All right. Do you know if it ever has been used or, in any connection with any of the Night Owl disks? A. Yes, it has. It has been on, I think it was one of the versions, maybe two of the versions, I'm not sure, of the disk. Q. Okay. Was this before Larry James became involved, if you know? A. Must have been after. Q. Okay. In your contact and acquaintanceship with Richard Graham, have you had an opportunity to observe his business practices? THE COURT: You've gone into that. You started with that, I thought. MR. KITCHEN: Yes, that's true. I'll withdraw that question. BY MR. KITCHEN: Q. Have you had the opportunity to form an opinion as to Mr. Graham's honesty and business practices? A. Yes, I have. Q. Okay. What is your opinion of his honesty? A. He's a hard working, honest person. MR. KITCHEN: I have no further questions. THE COURT: We'll take a brief recess now, about 10 minutes. (Recess taken.) MR. KITCHEN: Your Honor, I have a couple more questions, if I may, of this witness. THE COURT: Never take a recess, I guess, until somebody says, yes, I am finished. CONTINUED DIRECT EXAMINATION BY MR. KITCHEN: Q. When, when you were having these meetings with Richard -- excuse me, when you were having the meetings with Larry James, did you testify that he showed you the program in its various stages, as he was working on it, is that correct? A. Yes. Q. All right. And did he happen to show you the copyright screen, the screen with the copyright notice? A. Yes, there was. Q. Okay. And did you happen to notice then, you know, what it said? A. There was several modifications to the wording of the copyright. Q. Did you have any discussion at all with Larry about the contents of that screen? A. One of the screens I mentioned to him that it should be changed. I thought it would be different wording. It said copyrighted by Larry James for Richard Graham. I made a comment about that. Q. Okay. What was your comment, to the best of your recollection? A. That should be changed to that. Q. Okay. Did, did you have anything in your mind at that time as to who was supposed to have the copyright to that program? A. I always assumed Richard had -- MR. OSTROWSKI: Objection. THE COURT: Sustained. MR. OSTROWSKI: It's not within his knowledge, and he's assuming now. THE COURT: All right. You're a little tardy on your objection, but sustained. MR. OSTROWSKI: I'd ask that it be stricken, Your Honor. MR. KITCHEN: Well, Your -- THE COURT: It wasn't finished. MR. KITCHEN: Your Honor, what I asked was if he had any particular impression in his mind at that time. THE COURT: Yeah, and what he had in his mind is not material. BY MR. KITCHEN: Q. Well, did you indicate to Larry during any of these discussions as to what you believed the ownership of the program was, or the copyright of the program was? A. That's why I specified it should be -- THE COURT: Your answer is yes? THE WITNESS: Yes. MR. KITCHEN: Okay. All right. BY MR. KITCHEN: Q. And what did you say to him? A. I mentioned to Larry that it should be changed to, copyrighted by Larry James for Richard Graham. Q. Did, did Larry have any disagreement? A. I don't think so. Not at the time, no. Q. Okay. Do you know whether or not the final version that Larry James did of the Quick Basic program was in compliance with your suggestions regarding the copyright notice? A. I have seen one after that, that it was changed, but in the final version I couldn't say if it was put in there or not. Q. All right. Did you, did you have any discussions with, with Larry James afterwards about writing or programming for you? A. Yes, I did. THE COURT: For Mr. Markwardt? MR. KITCHEN: Yes. THE WITNESS: At the time I was -- THE COURT: Excuse me. Your answer is yes. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. And when did these discussions take place? THE COURT: What's the relevancy of this? Is it relevant? MR. KITCHEN: Well, yes, because it occurred at or about the same time that the ongoing dispute with Mr. Graham -- THE COURT: This is work supposedly by Mr. James for Mr. Markwardt. MR. KITCHEN: Yes, sir. THE COURT: What does that have to do with Mr. Graham and Night Owl? MR. KITCHEN: Well, I think this goes to essentially the issue of whether Mr. James was trying to market the same program elsewhere. THE COURT: Rephrase your question. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Did you have any discussions with Mr. James subsequent to what we've, the period of time we've been talking about here, about a retrieval system? A. Yes. Q. Okay. And when did that take place? A. In about the same time that Mr. James was writing a retrieval for Mr. Graham. Q. Okay. Was it during this, this period, these first couple of months when he was writing the Quick Basic version? A. Yes. Q. Okay. And what, what was the substance of those discussions? A. I was making up a CD ROM for myself to publish and I asked Mr. James if he would write a retrieval for myself. Q. And what did Mr. James say? A. He said he'd have to talk to Mr. Graham first. Q. And -- A. And he did, and I guess Mr. Graham said it was okay for him to write the retrieval for me. Q. And was this going to be the same retrieval that he had already written for Richard Graham? A. The suggestion was made, yes, but I didn't want it that way. I wanted a complete fresh retrieval. Q. And was Mr. James willing to write you a fresh new retrieval? A. He didn't mention if he would or if he wouldn't. Q. Okay. Well, is there some time that that discussion stopped or that you no longer pursued that? A. At that time Mr. Graham had Mr. James as a full time employee, or Mr. James worked at his place of employment, and I decided not to have Mr. James write the retrieval for me. Q. Okay. Did you ever publish a CD ROM? A. No, I did not. Q. Okay. MR. KITCHEN: I have no further questions. CROSS EXAMINATION BY MR. OSTROWSKI: Q. Good afternoon. A. Good afternoon. Q. You stated that you asked Mr. James to change the copyright notice to copyrighted by Larry James for Richard Graham? A. Yes. Q. How would you compare the programming skills of Mr. James and Mr. Graham? A. Mr. James is a, does a lot more programming and could be considered a programmer. THE COURT: He's better? THE WITNESS: Better, yes. THE COURT: More capable? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Did you say that Mr. Graham suggested the initial meeting between your -- between the three of you -- among the three of you? A. I made the suggestion. Q. Okay. You didn't just state that Mr. Graham suggested it? A. I made the suggestion to Mr. Graham that he should hire Mr. James to do some programming. Q. And what did he do in response to that suggestion? A. He said we should meet, and we met at his house. Q. So as far as that, the step before that meeting, he was taking the initiative? THE COURT: He who? BY MR. OSTROWSKI: Q. Mr. Graham? A. I took the initiative to make the suggestion to Mr. Graham that he needed upgrades in his program. Q. I know that. That's initially. I'm asking after that, Mr. Graham took the initiative and wanted to have the meeting? A. Yes. Q. Okay. THE COURT: Who among, who between you and Mr. Graham, if either of you, contacted Mr. James? THE WITNESS: I contacted Mr. James and see if he's still interested, and then we got together. BY MR. OSTROWSKI: Q. Are you are aware of any taped phone conversations among James Graham, yourself, Greg Armenia, concerning -- A. I heard there were some, but I didn't hear them. Q. Well, did you hear that from Mr. Graham? A. Yes. Q. And what did he say? A. That there were some conversations that were taped. Q. Do you remember how many he said? A. No, I don't. Q. Do you remember who the parties to the conversations were? A. I -- at this time I do not know. I know there were taped conversations. Q. Well, were any of your conversations taped? A. I don't think so. Nothing was mentioned to me that they were. Q. Did you have a conversation with Mr. Graham about this case in which he said to Rich, I need a 210 megabyte hard drive, and he said, don't worry, I'll take care of you? A. That wasn't a conversation with me. Q. Well, was it somebody else's conversation? A. I don't know. Q. Okay. So -- A. I couldn't say. Q. -- you were never a party to a conversation with Mr. Graham in which that's what took place? A. Not that I can recollection, no. Q. Did he ever give you a 210 megabyte hard drive? A. No, he didn't. Q. Do you know what Mr. Graham's practices were with regard to taping conversations? A. I do not know his -- Q. Generally? A. I don't know if he did, if he ever did. Where the taped conversations come from, I do not know. Q. Are you familiar with -- have you heard from other people that Mr. Graham stole Mr. James' program? A. I didn't hear anything like that. Q. Well, have you heard from anyone that Mr. Graham was using a program that belonged to Mr. James? A. The reverse of that maybe, yes, I heard, but not that way, no. Q. Well, so the answer is no, you didn't hear that? A. No. Q. During this time you were, when you were working with Mr. James you stated that you were on unemployment? A. I'm not sure if I was starting unemployment, I think, or if I may have just ended it. I'm not sure. Q. Richard was paying you $100 a month approximately? A. Yes, maybe a month and a half, two months, maybe. Q. Well, do you remember what months that may have been in '91? A. I'm not sure if it was '91. Q. That he was paying you $100 a month? A. Yes. Q. Okay. Did you ever use Larry James' BBS? A. Yes, I have. Q. Is that, what kind of a -- are you aware what kind of program he had to allow people to use that? A. PC Board, which is a bulletin board system, from a Clark Development Company. Q. Now, are you familiar with the Quick Basic version that Larry James did, that was the first program that he wrote for Richard? A. I have seen it. Q. Now, what was your relation -- when Richard was putting that together for the CD ROM, what was your relationship with Richard at that time? A. I was helping Larry James put the program together. Q. And when Larry -- A. With suggestions, not necessarily programming, with suggestions. Q. General ideas? A. General ideas. Q. Okay. What happened, I mean, what happened to that program when it was finally -- I mean, a program's never done, I guess, but when that was done to the satisfaction of everyone, what happened to it next in order to get -- A. The program went on the compact disk. Q. How did that happen, in that case? A. I assume that Mr. James gave the program to Mr. Graham and Mr. Graham sent it to the, I don't know if you'd call it a publisher. Well, a person that makes the CD's. Q. You say you assume. Do you have knowledge, either personal or from what Mr. Graham told you, that that is true? I know that's a confusing question. Let me ask you, did you see Mr. James give the program to Mr. Graham? A. A couple versions, but nothing, I don't know if it was a final version or not. Q. I'm talking about the Quick Basic. This is back around April roughly. A. Okay. Q. Does that make sense, datewise? A. When they first started? Okay. Yes. March -- Q. March or April? A. Yes. Okay. Q. It's not all that important which. So Mr. -- now, what form did Mr. James give the program to Mr. Graham? A. On a floppy disk. Q. Source codes? A. Yes. Q. Okay. And did you see -- now, this is -- was this before the Quick Basic -- are you familiar with which release that was? A. No, I'm not. Q. Numberwise? A. I don't know what numberwise. Q. But do you recall at some point that there was a CD ROM with Larry's Quick Basic program as the retrieval system? A. This is when they were first starting? Q. Right. Yeah. A. This is when they -- THE COURT: This is when they mentioned the floppy. THE WITNESS: Yes. THE COURT: Yeah. BY MR. OSTROWSKI: Q. What I'm asking you is, did Mr. Graham get that floppy before the disk was manufactured and released and distributed? A. He put the program on the disk. THE COURT: Floppy? THE WITNESS: Floppy disk. BY MR. OSTROWSKI: Q. Well, he is who? THE COURT: Wait a minute. Have you finished your answer? MR. OSTROWSKI: I'm sorry. THE WITNESS: Mr. Graham put the program on the floppy disk, gave it to Mr. James to modify and update and correct. BY MR. OSTROWSKI: Q. Well, you've completely lost me here. Are you talking about the first time they had the meeting? A. Yes. Q. Okay. That's not what I'm talking about. I'm talking about Larry, Mr. James had, was working on the program, you were giving him a few tips. At some point it was done? A. Yes. Q. At least for that time period. Is that correct? A. Yes. Q. And he then gave that program to Mr. Graham, correct? A. Yes. Q. Was that before the release of the CD -- A. It would have to be, yes, because the program would go onto the CD. Q. And Mr. Graham would put it there? A. Yes. Q. How would he do that? A. He'd correlate all the data and give it to a publisher. Q. Well, I'm just -- I'm sorry. Go ahead. THE COURT: So the actual physically putting it on the CD is done by a publisher? THE WITNESS: Yes. THE COURT: In a process which has been referred to as cutting? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. What format -- would Mr. Graham get Larry's source code on a disk? A. I'm not saying it's a source code. I assume that he gave him the program, the executable program, to put on the compact disk, to cut. Q. Well, you know more about computers than I do. When you say executable program, what -- A. The finished product. Q. Is that -- and how does that appear if you take that and put it on a screen in a computer, what do you see? A. Well, you would write a program, and by writing a program you'd have source code. Q. Right. A. You'd put it to a compiler that would compile it and make an EXE file out of it that you would execute. THE COURT: This comprise a bunch of zipped up packages? THE WITNESS: No. It would make a executable file that you would run, and, just like the game I mentioned before. You would execute the game or you'd execute the menu program. BY MR. OSTROWSKI: Q. I'm showing you Plaintiff's Exhibit 18. Does that look like source codes for a file retrieval system? A. Yes, it would. Q. Now, is this what Mr. James gave to Mr. Graham? A. I'm not sure -- Q. Either in paper or floppy disk? A. I do not know what was transpired between the two gentlemen. I know the -- this is the source code. The source code has to be compiled -- Q. Right. A. -- to a executable file that can be run to bring up a menu and retrieve some zip files or whatever it has to do. Q. Is what you're saying that Mr. James did give Mr. Graham the program before the release, correct? A. Yes. Q. In the form of an executable file, which means, I take it, pretty much what the user is going to use -- A. Yes. Q. -- when it's ultimately -- A. Yes. Q. Okay. So that the form -- and Mr. Graham had this before the release of that Quick Basic program, its manufacture and release? A. It would have to be before -- Q. Before. A. -- the manufacture and release because it has to be put on a disk. Q. And Mr. Graham did that? A. Mr. Graham put this together, yes. Q. And what, did he -- THE COURT: Mr. Graham didn't put it on the disk. The publisher does. THE WITNESS: The publisher put, makes the disk. BY MR. OSTROWSKI: Q. But Mr. Graham puts the tape together, correct? A. He correlates all the data, puts it together, and gives -- Q. On tape? A. On tape. Q. What kind of tape? This is another confusion. A. It's a storage media where you put data on a tape. It's like storage media. THE COURT: Cassette? THE WITNESS: Like a cassette. MR. OSTROWSKI: Okay. THE WITNESS: It has computer information. THE COURT: A larger, like a reel, more tape? THE WITNESS: I'm not -- THE COURT: A greater capacity? THE WITNESS: Yes. It's a greater capacity storage media. BY MR. OSTROWSKI: Q. Okay. So the, the form -- now, well, let me ask you. Did you see the completed program? By which I mean completed at that time for the Quick Basic version and the CD ROM, did you see that in executable form? A. I've seen several versions as it was being worked on, yes. Q. Well, did you see the -- A. And once the product was released, I have seen it, yes. Q. Okay. So do you know what, do you know what the -- when you execute the program, do you know what you see as far as any copyright notices? A. There's a copyright notice in it. Q. Okay. And where? Once you execute the program? A. If I'm not mistaken it's at the end screen. Q. Well, let me ask you this. Were the copyright notices in different places for the Quick Basic versus the C version? A. I'm not sure. Q. Okay. A. I think it was the same place. Q. So what you're saying is, at least on one of these versions, the copyright notice was at the end? A. Yes. Q. Okay. THE COURT: The end? Or screen? THE WITNESS: When you exit the program. MR. OSTROWSKI: Exit screen. THE COURT: Where you exit. THE WITNESS: Yes. THE COURT: Screen is up front. THE WITNESS: When you exit the program, it will show the copyright notice. BY MR. OSTROWSKI: Q. Right on the monitor? A. On the monitor. THE COURT: Is that what they call a screen? Whatever is on the monitor -- THE WITNESS: Yes. THE COURT: -- is a screen? THE WITNESS: Yes. THE COURT: All right. BY MR. OSTROWSKI: Q. Was there any other version which, that you saw, that had the copyright notice on the front screen, or whatever you want to call that? A. I think it was mostly at the ending. Q. Okay. But in any event, with respect to the Quick Basic version, this, the first one that he did for Richard, Richard had that program before it was distributed in executable form? A. I don't know what was transpired between the two gentlemen, if it was the executable file or the source code. I couldn't say. Q. Well, I'm not -- A. I wasn't part of that. Q. You've already -- A. I -- Q. You've already stated that -- okay. Go ahead. A. Mr. Graham would have to have the finished program in order to send it to the publisher to make it, make the CD. Q. There's no other way to do it, right? A. There's no other way to do it. Q. And that, if he had that program he would have tested it out, correct? A. I would assume so. Q. And in testing it out, he would have seen the opening screen? A. I would assume so. Q. And then he would have worked around with the programs? A. I don't know if Mr. -- Q. Well -- A. Like I say, this is hearsay, because, you know, I didn't see it. Q. But I'm just -- okay. I'm sorry. I'm just asking you how essentially anybody runs any program since you're an experienced -- A. I would assume, yes, it should be -- Q. -- guy. A. -- final test -- THE COURT: Well, wait a minute. You cannot both talk at the same time. Ask a question, give your answer. THE WITNESS: I'm sorry. BY MR. OSTROWSKI: Q. When you have a program in executable form, you can see the opening screen, then you work on it, and then you see the closing screen, correct? A. Yes. Q. Okay. Did, did Mr. Graham have discussions with you about taking Mr. James' Compuserve number out of the copyright notice? A. There was discussion that Mr. James did not want it in there. Q. By Mr. Graham, you mean? A. By Mr. Graham, yes. Q. Okay. THE COURT: Which? Who didn't want it in there? THE WITNESS: Mr. Graham did not want it in there. BY MR. OSTROWSKI: Q. Now, you said that, at some point, that Mr. James was the, an officer in a users group? A. Yes. Q. And where is that, at UB? A. University of Buffalo, yeah. Q. They meet at UB? A. Yes. Q. But it's a private group? A. Well, it's a public, it's a computer users group that is open to the public. Q. It's not part of UB? A. No. Q. Just, they meet there. How many people are in that? A. Less than a hundred. Q. Okay. And as part of being an officer in that, would people come to him for consultations on programming? A. Yes. Questions. He runs the club, its different operations and stuff like that. THE COURT: The he we're talking about now is -- THE WITNESS: Mr. James. THE COURT: -- Mr. James. BY MR. OSTROWSKI: Q. This Anderson/Graham program that you're familiar with, is it fair to say that it needed a lot of work? A. Yes. Q. It was kind of awkward? A. Yes. Q. I think in fact you may have used that word at the hearing. A. Yes, I did. MR. OSTROWSKI: I have no further questions. THE COURT: Anything, Mr. Kitchen? REDIRECT EXAMINATION BY MR. KITCHEN: Q. Now, all that series of questions in which you assumed that Mr. Graham did this or did that to get the program to the publisher, was that based on, you know, an actual example, or are you just telling us -- A. I wasn't physically there when the information was passed from one person to another person. Q. Also, you had previously said something about when the Folio program was used on these disks. Do you remember when, and you I think had said that that was before or after -- A. I think I was mistaken at the time. Q. Okay. Do you know when Folio was used on any of these Night Owl -- A. It was before Mr. James wrote the program. Q. Okay. MR. KITCHEN: Nothing further. THE COURT: Anything? RECROSS EXAMINATION BY MR. OSTROWSKI: Q. You are familiar with Mr. Graham's business practices, the way he did business? A. Not completely all of his business practices, no. I'm not part of his business. Q. Well, you were supporting his BBS, correct? A. Yes. Q. And you're a very experienced -- you're not a programmer, but you are experienced using computers? A. Yes, I am. Q. And your testimony concerning what programs, concerning the transfer of data to Mr. Graham from Mr. James was based on, in part on your experience and knowledge of the industry and how computer users and programmers work, is that correct? A. Basically. MR. OSTROWSKI: No further questions. THE COURT: Thank you, Mr. Markwardt. (Witness excused.) MR. KITCHEN: I have another witness, Your Honor. THE COURT: You have no more witnesses? MR. KITCHEN: Pardon me? I have -- THE COURT: You say, do you have another witness? MR. KITCHEN: Yes, sir. THE COURT: Yes. Just go. MR. KITCHEN: Okay. (PHILIP C. SWANSON, Plaintiff Witness, Sworn) THE COURT: And what is your name? THE WITNESS: Philip Swanson. THE COURT: Philip. THE WITNESS: Swanson. THE COURT: S-O-N. THE WITNESS: S-W-A-N-S-O-N. THE COURT: S-O-N, yeah. Middle initial. THE WITNESS: C. THE COURT: Where do you live? THE WITNESS: Jamestown, New York. THE COURT: Street address. THE WITNESS: 24 Allendale, A-L-L-E-N-D-A-L-E, Avenue. THE COURT: One L, Philip? THE WITNESS: Yes. THE COURT: Lots of Swansons in Jamestown? THE WITNESS: Oh, yeah. THE COURT: Take the witness chair. Having been raised there myself, I know that. DIRECT EXAMINATION BY MR. KITCHEN: Q. Mr. Swanson, are you employed? A. I'm an independent contractor. Q. Okay. What -- are you self-employed then? A. Yes. Q. Okay. Does your business have a name? A. PCS Enterprises. THE COURT: Excuse me? THE WITNESS: PCS Enterprises. THE COURT: PCS Enterprises. BY MR. KITCHEN: Q. P as in Peter, C as in cat, S as in -- A. Philip Charles Swanson, PCS. Q. Oh, gotcha. And what, what is the nature of that business? A. Computer consulting. Largely software development is what I, where most of my business comes. Q. Okay. How long have you been doing that? A. 11, 12 years. Call it 11. Q. What do you actually do? A. I develop -- okay. I can do, take any, take a project from brand new. I'll go out and I'll visit a client, and they say, well, you know, maybe they're experienced, maybe they're not. We need this, this, this pieces. We need equipment, we need software. Mostly what it is now, you know, most of the business I'm seeing is like, well, we need a program that does this, and I get together with them and I say, okay, let me make sure we know just what you want. Then I go and I write it, and we'll come back, and we'll just tweak it until the customer is satisfied that, this is what I want. Q. Do you actually do software programming? A. Yes. Q. Okay. And are you acquainted with various programming languages? A. Yes, I am. Q. What programming languages do you use in your software programming writing? A. The most recent ones, I'm using C a lot now, d Base, Clipper, which is a d Base variant. THE COURT: D Basis? THE WITNESS: d Base. THE COURT: D-Base? THE WITNESS: The name is, it's little d, large B-A- S-E. And their latest version is 4.0. And there's also a language called Clipper, which is very much like d Base only it's compiled instead of interpreted, which I'll spare you the tech, if you want. And that's, that's the bulk of it, you know, Fortran, you know, I've done some other stuff, but I've not seen a lot of anything. THE COURT: Fortran, F-O-R-T-R-A-N? THE WITNESS: Yes. BY MR. KITCHEN: Q. Fortran is usually associated with what kind of computers? A. You used to see a lot of it, more on, well, this is before like a lot of mainframes. Fortran formula translation. It was big for, well, NASA like it. Big, greater number crunching, it's strong in number crunching. Q. Have you had any formal training? A. Yes. I have a Bachelor's from RIT. Q. In what? A. Applied systems software. It's a computer degree with specialization in software. Q. When did you get that? A. I got that in 1988, August, I believe. Q. Were you doing this sort of thing though before you completed your degree? A. Yes, I was. Q. Okay. Do you own any computers yourself? A. Yes, I do. Q. How many software programs have you written? A. Oh, two, three dozen, I guess, yeah. Q. What language did you use for most of those? A. Most of those were d -- well, okay. Let's call, let's made d Base about a third, maybe Clipper about a third, well, I put C at a third. I'm probably a little under a third because I've done, I'm about a third on each, I guess. Q. What does somebody have to do to program? A. Well, you need to know what you're programming, and when all your specs are clear, you need to design supporting data structures, and this is your -- well, how can I say this in a couple sentences. You make your supporting data structures or data base files. You have an organization -- well, okay. You use the tools that are available to you in the language. For statements, if then statements, and because you're trained and you know what to do, what to do with them -- that's a tough one to put in a paragraph. What do I do. Okay. You get the specs clear. You've got to have your supporting data structures clear. And I like to use top down approach, okay, which is a programming method where you design and make sure your design is complete from, at this layer, before you proceed on down. That's, I can clarify, I know. Q. Okay. At one time were you -- well, are you acquainted with Richard Graham? A. Am I acquainted with him, yes. Q. Okay. When did you make his acquaintance? A. September '92, I think. Q. So it would almost a year? A. Yes. Q. And what were the circumstances of your meeting? A. A mutual friend of ours, Wayne, well, I don't know, you know, how you came in contact with Wayne, but a friend of mine, Wayne Berg, passed me the job. He said, you know, I know this guy, he wants a C program or he wants a program or whatever, maybe you can fill the bill. And he just put us in contact. Q. Okay. And so did you have a meeting then with Richard? A. Yeah. We met and talked a time or two and decided we, you know, I could fill the bill. Q. Okay. Well, what was the bill to fill? What was the, what was the work that needed to be done? What did he want you to do? A. He wanted me to take Brian's, you know, the Night Owl, the Night Owl code at that time that, you know, that I understood that Brian had just completed, and continue to -- THE COURT: Who is Brian? THE WITNESS: Brian Martin, the -- he was the programmer who worked on it just before I did. THE COURT: I just wondered because Brian sounds like a very good friend. THE WITNESS: No, well I know him, you know, I've heard the name bantered around. I figured, well, you guys have been through it so I figured you'd know Brian. Brian, I think it's Brian Martin. He's a programmer out in Kodak and he had, you know, I understood he had reworked the code, and I got it, I picked it up after that. And I was going to continue to, you know, enhance it, and whatever was needed. BY MR. KITCHEN: Q. Well, let me show you Plaintiff's Exhibit 20. Do you recognize that? A. Yes. Q. Okay. What, what is it? A. This looks like Brian's stuff. This looks like this, this looks like some of the early code that I was got, you know, the stuff I was probably initially given. Q. Okay. Now, you've initially described this as Brian's stuff? A. Yes. Q. So could you tell us exactly what that is really? A. Code that Brian wrote. Q. Okay. Is the term source code -- A. Yes, this is source code. Q. When you write a program, and print out what you've written, is that what it looks like? A. Yes. Q. And what does this, how does this source code relate to what it is that you're trying to accomplish? A. This, these are the directions that humans can read, that you're going to give to a compiler than changes it into something the computer can understand. And this is, well, the source. This is where the description of the computer's, the computer program's functionality begins. Q. Now, did you also have a working copy of the program itself, the compiled program? A. Yeah. Well, when Rick gave me one, yeah. Q. Yeah. So you -- A. Rick, Richard Graham. When he, you know, I didn't have it before. He was, that was going to be the program I was going to work on so he supplied the code. Q. So you had both the source code and you had the working program? A. Yes. Q. Okay. And what did Richard want you to do? A. Rick had a number of enhancements. Okay. Now, the first, the first things he wanted me to fix, the first weeks he wanted me to make on it, boy, I'm not sure. Okay. There were cosmetic errors. Search command was one of the early ones, we wanted to enhance the search command, I believe. I think the copy command had problems with it. Okay. I'm, I can't be sure on this but these are, like, some of the early things I recall. Q. What do you mean by enhancements? A. Improvements, yeah. Q. So you would not, I mean, these are small changes as compared with large changes? A. Yes. Q. Okay. Now, what would that involved in terms of code writing? How much, you know, how much change? A. Depends on the specific type of enhancement, of course. But I'd go in, I'd look at the existing code and I'd trace down to the point where, okay, these are the instructions that we want to change. And I'd add, subtract, change routines until that, at a section to the code until it's as desired. Q. Okay. Let me show you Plaintiff's 21. Do you recognize that? A. Yeah. This is, this is this early code. This -- I think this is stuff Larry wrote. This is the stuff Larry wrote, isn't it? Let me make sure. Wait a minute. This is, this is a little bit different than the code I had reviewed. I don't remember, I don't remember a switch statement in there. I'm not sure I've seen this code before. No. This has got to be, no, I don't think this is stuff Larry wrote. This, okay. There are some routines here, there are some of Brian's routines in here. Maybe this is real early stuff from Brian because it doesn't have, you know, it doesn't have all the features we added. Yeah. This is what I think, this looks like Brian's, you know, there's the mouse, because this is not -- Q. Does the copyright notice at the top give you any indication of -- A. 1993. Oh, okay. No. Wait a minute. Wait a minute. Is this my stuff? Because this has the, see these angle brackets right there? Q. Yes. A. This is something I put in there to emphasize that text, and that's just a little code I used. Maybe this is my stuff. Q. Well, make sure. A. Let me find some, let me try and find some -- okay. This is my stuff. I recognize my routine headers. Logo free. Yeah, this is my stuff. THE COURT: I understand there's six separate packages there. Are you looking through all of them and is your conclusion that all of them -- THE WITNESS: Let me check, Your Honor. THE COURT: -- comprises your stuff? THE WITNESS: Okay. Let me page through. Okay. Yeah. This is -- I had written in this code. This is the code that I was handed initially and it's modified because I see some of Brian's headers and I see some of my headers. Here's a -- THE COURT: No. You said before, it had some of your input. THE WITNESS: Yeah. I recognize -- THE COURT: That wouldn't have been then something you received. THE WITNESS: No. This is -- I didn't receive this code. This is code that I had received from Brian and I had since modified because there's, yeah, there's my stuff in there. THE COURT: So this is Brian plus Swanson. THE WITNESS: Yeah. BY MR. KITCHEN: Q. Did you do any program along this line from scratch, from, beginning from nothing? A. From this, you mean write a whole new thing? Q. Right. A. No. Q. Now, were you acquainted with what the function of this particular program was supposed to be, what the specs were? A. Yeah. That was part of our, you know, when we set up the meeting, we defined the problem. Q. Okay. And when you saw the program in operation and you saw the source code you received from Brian, I mean, did that make some logical sense to you? A. Oh, yeah. The source code in -- there was a source code for that executable. Yeah, there was definitely a relationship there. Q. Okay. What -- did you end up doing anything, when you made these changes, did you end up doing anything particularly differently to accomplish what the program was supposed to do? A. As far as programming technique or as far as -- Q. Right. A. No. I'm bound by the strictures of the language. I didn't really do anything new, a whole new leap away, no. Q. Well, I guess what I'm saying -- well, let me ask it then, really. If you were to have started from scratch and were shown what a program was supposed to look like in its final version, and you were asked to write the thing yourself, didn't have access to the previous source code, how much would your source code of your new program look like the source code of the program that had already been written? A. They'd be different. Q. Okay. How different? A. Okay. I'm -- you know, everyone has their own style. You're going to have tabs different. You're going to use, you know, some people like -- you're going to be saying things a little bit differently. You're going to be using a little bit different data structures. Just, you're going to -- you know, inside the code, the source code, you're going to have different style of commenting. Q. Oh, okay. Okay. But are we talking about changes in appearance, if one compares one person's source code to another then? MR. OSTROWSKI: Object to leading. THE COURT: He may answer. THE WITNESS: Changes in the -- you could see the difference between the source code, but you could write two different -- you know, you're talking about differences in the source code and not in the final XE, the executable version? BY MR. KITCHEN: Q. Well, yeah. I guess what I'm asking is, how many different ways are there to write a file retrieval system that does exactly the same as another file retrieval system? A. A lot. You know, yeah, you can do it a lot of different ways. You're going to -- two different people write it, it's going to be different just about every time. Q. Okay. THE COURT: You seem to be implying that each programmer, his work would be identifiable, a certain characteristic as it showed up in the final product. THE WITNESS: You usually can, yeah. You know, there's a standard that some people use for C. Like they indent three spaces, and some of that. But if you have big strips of code and you know what a guy codes like, you can usually look at them and say, yeah, this is his stuff. THE COURT: Well, would you know his stuff, or his, either his and one of several others? THE WITNESS: Well -- THE COURT: You're implying again a group of people, a few people might use the same method or give the same look. THE WITNESS: Yes. THE COURT: Is that right? Or can you look at it like a fingerprint and say, this is John Jones who did that? THE WITNESS: No, you can't. THE COURT: All right. THE WITNESS: You're just, you're taking an educated guess, based on your, you know, you know how people do things. BY MR. KITCHEN: Q. Would you be able to tell different programmer by how the final program looked, if they both had the same specifications and the same requirements for the program? A. If they had the same specifications and they held tight to those specifications, you shouldn't be able to look at the final product and say, this is his or this is his, because -- THE COURT: So within that strict guideline you wouldn't have any different tabbing or different commentary? THE WITNESS: No. Because this is, the end program is what the user sees on the screen, and that's what I'm assuming we're talking, well, okay, we want our program to look this way on the screen. You can build it five different ways. THE COURT: Well, you're talking about a situation of seeing it on the screen and being told to clone it, duplicate it. THE WITNESS: Right. Okay. If you see it on -- okay, seeing something on the screen is a great functional spec because you know for sure what it's supposed to look like. And then, yeah, sure, you can go and write it, and you know, it should look the same. If you -- you can -- THE COURT: Well, why, why if you're shown what it's supposed to be and told to duplicate it, why do you have any work to do? Isn't it there and done already? THE WITNESS: What -- okay. You cannot -- I believe I think, I think I know where you're coming from. I can't take an executable file, okay, like's on the disk or something. These are files that computers understand and they read. Humans don't read those and -- THE COURT: Of course not. THE WITNESS: What you need to do is you need to take it all the way back to step one and go through again. Okay. I set up my own way of doing this, my own instructions to get it back up to the final product. THE COURT: So what you're saying, when you start with something like this Plaintiff's 19, this printout of the C source code that you looked at earlier, which is readable by humans and not by a machine, if you had the machine product, something that this could read, you'd have to print it out, for example, in some way so you could understand it or somehow transform it into readable directions. You wouldn't print it out but you'd have to decipher it and put together a glossary of readable directions, wouldn't you? THE WITNESS: Okay. If I understand, if I understand correctly -- THE COURT: If you don't, don't answer. THE WITNESS: I don't understand correctly. I'm not sure what you're saying. THE COURT: All right. Go ahead. Go ahead. THE WITNESS: If you want to restate the question. THE COURT: No, no, no. I don't want to restate anything. THE WITNESS: Okay. BY MR. KITCHEN: Q. All right. Now, is what -- well, to go back to our example of being given a final specification of, this is what something should look like, can you program it, if you can see the thing on the screen, will you be able to write a program that duplicates that? A. If you can tell me what you want, I can write it. Q. All right. And -- THE COURT: No, he's not telling you. He's showing you something. THE WITNESS: Tell me or show me, okay. Yeah. BY MR. KITCHEN: Q. Is this something unique to Phil Swanson, or is this something that any capable programmer should be able to do? A. It's -- no, if you're a capable programmer, you should be able to get specs and do what they want. Q. Well, how about something like a file retrieval system for a CD ROM, is that something particularly unusual or unique? A. No. Q. And if somebody needed a retrieval system, could any reasonably competent programmer be able to sit down and write one? A. Sure. Q. And if you had, if you had, let's say, an example of a previous CD ROM retrieval program where you could show what the screens looked like and that sort of thing, and you wanted it to look pretty much like that, would that be fairly straightforward and simple to do? A. Yeah. Having the screens is great specs. Q. Okay. Now, you talked about routines, what do you mean by a routine? A. A conceptual unit. Okay. We have -- okay, let's take an example here. Q. That's what I wanted you to do, yes. A. All right. Display category menu. These are the comments I'm reading from. This routine displays the main category menu. Okay. That's a routine. THE COURT: You're reading from what? THE WITNESS: I'm reading from Plaintiff's Exhibit 21. BY MR. KITCHEN: Q. Okay. Now, when you say display, it means it takes some information from somewhere and it puts it up on the screen? A. Yes. Q. And there are some -- COURT RECORDER: Was that answer yes? THE WITNESS: Yes. Sorry. BY MR. KITCHEN: Q. And I take it there are some commands for doing that sort of thing? A. Yeah. The language commands, yes. Q. Okay. Now, how many -- are there, if you're a programmer in C, are there a dozen different ways that you could, you could perform that particular function, or is it pretty standard that you do it one way or another? A. There are a couple methods. Yeah, but, there -- you could probably do five or six methods and they're generally accepted. You could do, you could try and do something real weird just to be different, but it wouldn't be as good. Q. Now, I'm not talking about fancy borders or anything like that. I'm talking about the simple routine of finding some information in this case, apparently file categories, which is some text written somewhere? A. Uh-huh. Q. And put it -- THE COURT: You've got to say yes or no. THE WITNESS: I'm sorry. Yes. BY MR. KITCHEN: Q. And then putting it up on the screen. How many commands are involved with grabbing some information from a particular part of the file and putting it up on the screen? A. Okay. Now, when you say commands, I'm assuming you mean a single line of source code or a single routine call. Q. That's right. Right. A. Okay. And you want to throw up a menu? Q. Well, I want to throw up some categories and put them on the screen, yeah. A. Let's, let's call it 200 lines. We'll say we got a, yeah, sure, you know, you have the 60-90 line routine and maybe you got a couple short routine calls in there. Maybe 200 lines include, you know, for your initial routine and supporting routines. Q. Okay. Well, let me ask you something else, too. At the top of the program there is several lines that begin with the word, include. A. Uh-huh. Q. You see those? Is there anything you describe that kind of block of text as? THE COURT: You're fastened onto that uh-huh. THE WITNESS: Yes. Sorry, Your Honor. BY MR. KITCHEN: Q. Okay. And that block of text is called, is referred to any particular way? A. That's -- I've always called it the include block. Q. Okay. That makes sense. And, and what do those lines mean? A. These are libraries of standard routines that you're going to need to support your program. Q. Standard routines. A. Okay. When I write in the C language, I don't write everything from scratch. If I want, if I want to send output to the screen or, I can say, print F. This is a standard, that's a standard routine, and you get it with, through one of these libraries. Beyond the basic, beyond the basic routines that they give you to work with, and beyond the commands within the language, you know, if-then, all this kind of stuff, you build from there on up. Q. Is this a little like, oh, if you're going to paint a house, you don't have to make the paint brush, you can simply buy the paint brush? A. Yeah. That works. Yes. Q. Okay. Now, among those, for example, there's an include for I believe it's a program that has the word mouse in it? A. Yes. Q. Okay. Is that a subroutine? A. No. This is a -- well, it's a group of routines developed by Brian. Q. A little more complex? A. More complex? Q. Well, I mean more complex than just one routine, like some of the others? A. Oh, yeah. I don't know how big it was. He had, yeah, this is more than one routine. He's handling all this mouse stuff in there. Q. Okay. And did he, he write that himself? A. That's what I understood. Q. Okay. You used that in your -- A. Yes, I did. Q. Okay. What was in that mouse routine? A. Oh, okay, in general, things to support the mouse. When you scroll the mouse down you had to handle highlighting the menu bar you're on. Just that kind of stuff. Q. Computer people like to use the word support a lot, and I take it it relates to something other than what we consider to be in the category of, let's say, child support, or something like that. Can you give us kind of a, if you can, just kind of a definition of support as computer people use it? A. Routines and any other tools that are necessary to complete the job. In other -- okay, if you go back to the analogy, if you don't have a paint brush, the house is not going to get painted. That's a support. Q. Okay. Now, could you have written the mouse routines yourself? A. Yes. Q. Rather than using Brian's? A. Yes. Q. Now, is, was there anything particularly unique or unusual about the mouse routines written by Brian for the program? A. As compared to the entire other family of mouse routines? Q. Yeah. As it compared with any other programmer who might have written the mouse routine? A. Nothing drastically different, no. Again, there's little style differences, but this is not a giant leap away from the other stuff. Q. Well, anything that would be, let's say the mouse routine of the century, something that was hailed by all as, say, better than sliced bread? A. No. Q. Okay. Is it, was it something comparable to what you might have come up with yourself if you had to write the mouse routines yourself? A. Yes. Q. Now, the other include lines there include some other things. Coneosis or something like that. What -- A. Okay. On which Exhibit, because I -- Q. Well, let's stick with yours, 21. A. 21. Q. What others do you have on those? A. Okay. The big one there is C.H. Q. Okay. THE COURT: C what? THE WITNESS: C.H, which is, that is an include file of includes files. The reason I did this, okay, this is something I usually do. Okay. Like on Exhibit 20 here we've got I don't know, maybe 12, 15 lines of include files there. All right. We've got maybe 12, 15 lines on Exhibit 20 here. On Exhibit 21 we got six lines, including the mouse high. The reason I do this is because I don't want to go in every time and type out all these standard things. I put all the commonly used subroutines in C.H and then I don't have to worry about it. It just gets what I want. BY MR. KITCHEN: Q. Okay. So C.H is a, a routine that's actually a library of other routines? A. It is not a routine. It is a, it is a listing of other include files. Q. Okay. Which contain routines? A. Yes. Q. And things. Now, where does that come from? Where does C.H come from? A. I think, I don't think I came up with it. I think a guy used to work with Evan Martin came up with the idea, but we've both been using it. Q. Okay. A. As far as this project is concerned, it came from me. Q. Okay. All right. Are there any of these include files which come from the C program itself, that is -- A. Yes. Q. By the way, what -- who publishes C? A. I'm using Turbo C. Q. Okay. A. Okay. Which is put out by Borlyn. Q. All right. A. There are a number of other flavors out on the market. Q. I see. So in other words, more than one software publisher publishes a, program writing tools and compiler for the C language? A. Yes. Q. Okay. A. Now. Okay. The C language, I don't want to digress, but they all have, they're antsy C compatible. There's antsy C, and everyone knows and understands, this is standard. Then you have, okay, Turbo C, which is, they conform mostly to antsy C, but they have some of their own special set, okay. So they're like a super set of antsy C. And this is, you know, everyone has their own, Borlyn C. Quick C has their own named routines. Q. Kind of like cars come in different brands but they all have four wheels on the bottom? A. Yeah, yeah. Q. Well, if you wrote something in, if you were a C programmer and you wrote in Borlyn's Turbo C, could you then turn around and write in someone else's C? A. Sure. The C's are, C's are pretty similar. You can cross over pretty easily. Q. Okay. Now, if somebody wanted to be a C programmer, and so they went to Borlyn and they bought the software routine, by the way, what's it cost for one of those packages? A. Maybe $300 for Borlyn C, yeah, $300 maybe. Q. Well, now, what do you get when you get one of those things? Do you just get that program that's called a compiler, and maybe a book, and that's about it? A. You get a set of manuals. The set of manuals I got with Turbo C is maybe four, five inches of books. You're going to get your compiler. You're going to get all these, you know, these libraries that the, you know, the processes, the things that are to be included in the include files. Q. Do you mean some of those include files actually come with the C program when you buy it? A. Yes. Q. So they have routines within them? A. Yes. Q. So this is a kit that comes with paint brushes, to some extent? A. Yes. Q. Well, now, when you're writing a more elaborate program or a program like a file retrieval system, is there more than one way to do something? A. Yes. Q. And is there anything that would dictate that you would do it a particular way, that one programmer would do it one way and one programmer might do it another way? A. A lot of the times the considerations come down to speed. Do you want to have speed over space. Do you want -- well, you know, cosmetics, the cosmetic look on the screen, that can get into it. Yeah. There are a number of things you've got to consider to figure out which way you think is best. Q. Okay. Have you had an opportunity to examine various source codes that have been involved with this Night Owl disk? A. Yes. I've looked at a few. Q. From various sources? A. Yes. Q. Which ones have you looked at? A. Okay. I seen this Exhibit 21. This Exhibit 20, which looks to me like Brian's original source code I've seen that, you know, because that was the original stuff I was handed. I examined the code Larry wrote. Okay. I've seen the Quick Basic source code. MR. OSTROWSKI: Your Honor, I object to a reference to an Exhibit. I don't know what he's talking about, Larry's -- THE WITNESS: Okay. The -- THE COURT: Well, Mr. Kitchen is going to straighten that out very quickly. MR. KITCHEN: Right. BY MR. KITCHEN: Q. Have you seen Exhibit 19? A. Yes. THE COURT: Yes? THE WITNESS: Yes. BY MR. KITCHEN: Q. And have you seen -- I was going to ask if you've seen Exhibit -- A. Yeah. The rubberband broke there. Q. Yes. We have to need a new rubberband requisition then. Have you seen Exhibit 18? A. This looks -- yeah. Yes. I have. Q. Okay. Now, have you received any information from either myself or Richard that, as to where, for example, Exhibit 18 came from, or whose that was? A. Okay. I understood that this was stuff that Larry had written. Q. Okay. MR. OSTROWSKI: Are you referring to 18? THE WITNESS: Yes. BY MR. KITCHEN: Q. And did you make a comparison between let's say 18 and 20? A. Yes, I did. Okay. Wait a minute, not 20 -- yes, yes, I did. Q. All right. 20 being Brian's, right? A. Yes. Q. And did you make a note of any similarities or differences? A. These are two different -- yeah, these are two different programs, no doubt. Similarities, they're all using the poor idea from the Quick Basic, you know, that you have, a big menu comes up and it pops off of that. This, okay, Exhibit 20 is a much nicer piece of code. You've got a lot, you've got more features in there. You have comments. You -- I could find -- the organization was clearer to me in Exhibit 20. Q. Could you look at a piece of source code and, and be able to maybe make an opinion as to whether it had been written by, well, let's say an amateur? A. Sure, sure, I can give you an opinion. Q. Versus a person who was a professional? A. Yes. Q. Okay. Have you had an opportunity to make that assessment with regard to 18, Exhibit 18? A. Yes, I have. Q. What would be your opinion in that regard? A. This was written by a novice programmer. This was -- THE COURT: By what? THE WITNESS: A novice programmer. BY MR. KITCHEN: Q. And what were the earmarks that led you to say that? A. Okay. Lack of documentation is a big one. Okay. Here, check out right in the front, up on top of his defines, he's defining the same thing twice. Up arrow was in a define, and then he's also got up arrow in a global, the same thing. He's using it twice. Okay. There was another statement down here where he was taking the same if statement. Okay. Yeah. Here we go. If -- two statements, one line, right after another. If X equals one, new environment equals one. Then again, if X equals one, new config. Put these both in one if statement. You're buying yourself time here by making this comparison twice. Okay. This increases the time of the code. There was, yeah, I could, you know, I could cruise for further examples, if you want. This is typical of -- Q. All right. How would you, how would you compare along the same lines Exhibit 20? A. Okay. Exhibit 20 has better code than Exhibit 18. Okay. He's got some comments here. I mean, installation modules, fine, great. It tells me a little bit about what it does. I haven't seen him, you know, doubling up on the defines and the, the organization is clearer to me in this one than in this one. Q. The left, this one being? A. The organization is clearer to me in Exhibit 20 than it is in Exhibit 18. He's doing things a little more the way you expect to see them. Okay. We got -- okay, yeah. Get key. Right there. There's a nice common routine. He's using the same routines again and again, these core, okay, a support routine that you make, okay. And over here it's like, it's like every time it's a whole new -- THE COURT: Over here is what? THE WITNESS: Over, on Exhibit 18, it's like every time it's a new thing. You know, it's -- use the same stuff again, if you wrote it, you know, use it again. BY MR. KITCHEN: Q. Now, did you also have an opportunity to look at what's been marked as Plaintiff's Exhibit 19? A. Yes. Okay. His comparison with these two? Q. Yes. A. This -- THE COURT: These two are what? THE WITNESS: Exhibits 20 and 18. Okay. I don't know if I've got a chance to go over 19 real well. It looks, you know, it looks like Exhibit 18. Is it exactly the same animal? I don't know. I'd have to tear into it a little bit, because I know I've, this I've seen, I remember this paper, okay. This looks like the same code, at least initially. I'm sorry. Could you repeat the question? BY MR. KITCHEN: Q. Whether you've had an opportunity to look at 19 and make any comparisons between that and 18? A. Okay. Well, I can tell you from right now, these are quite similar. Q. Okay. A. Quite similar. Q. 18 and 19? A. Yes. Q. Do you know whether there were any changes or improvements made in 19 over 18? A. No, I don't. I'd have to, I'd have to really go through it with a fine tooth comb. Q. Okay. Would you make any -- what -- how would you compare 20, the -- what was Brian's code, with your own that you wrote? A. I think my code is better than this. Q. Okay. MR. OSTROWSKI: I'm sorry. What Exhibit is his own? MR. KITCHEN: Oh, his own is 21. That's correct, 21 is your own? THE WITNESS: Yeah. MR. KITCHEN: Yes. THE WITNESS: Okay. This is some of the, this is some of the code that I had written on -- MR. KITCHEN: Right. THE WITNESS: -- and Brian had also written on it. BY MR. KITCHEN: Q. Why do you think yours is better? A. Again, there's better documentation as far as better functionality. I'm not saying it's better per line of code, but there are more features in this. The program is nicer and friendlier. That's better. Yeah. Within the code, I like to comment more. Now, okay, as an aside, I do my tabs different. Brian is blind. When I first got the code he had these eight space tabs and that was a pain to read. This is now more readable by sighted people. Q. Okay. MR. KITCHEN: I have no further questions. CROSS EXAMINATION BY MR. OSTROWSKI: Q. Good afternoon, Mr. Swanson. I'm Jim Ostrowski. A. How do you do. MR. OSTROWSKI: Could you hand me 21. THE WITNESS: There's a couple packets there. MR. OSTROWSKI: Are these all part of the same Exhibit, I take it. Was there a rubberband around -- THE WITNESS: There was. MR. KITCHEN: They previously had a rubberband, yes. THE COURT: Is it too thick for a spring clip like this? There's about a half inch spring clip. MR. KITCHEN: This is about, that might do it, Your Honor. THE COURT: If not, I can get a larger one. MR. KITCHEN: I have a rubberband. THE COURT: Here's two rubberbands, in case one breaks. That didn't quite make it? MR. OSTROWSKI: No. It worked, Your Honor. THE COURT: Good. MR. OSTROWSKI: Quite good. BY MR. OSTROWSKI: Q. Mr. Swanson, what is a module? A. You could, you could say that's a conceptual unit. It's a little bit different than a routine because a lot of people use it to refer to a group of routines, like a compilable module may contain several routines. Q. Do some people in the industry use those to mean the same thing? A. Yeah, module and routine. You can have a module that has one routine in it, sure. Q. And what's a subroutine? THE COURT: What is what? MR. OSTROWSKI: A subroutine. THE WITNESS: That is a routine that supports another routine. You know, it's, it's a support routine. BY MR. OSTROWSKI: Q. Are you familiar with which CD ROM releases of Richard Graham your program appears on? A. I couldn't quote them to you. I'd have to check back. Q. Now, which is the Exhibit that is the Brian Martin work that you started off with, not in Court but in, when you were working on your -- A. Oh, okay. Q. I have 21. I take it 21 is the program that you produced? A. I had done some work on 21, and this 20. It's like 20 is our baby here. Q. 20 is what you started with? A. Let me flip a couple more pages -- Q. Sure. A. -- and let me make sure I don't see any of my routine headers here. Q. Go ahead. I know it's long. A. Yeah. I'll be quick, but thorough. Yes. Q. Okay. So -- A. 20. Q. -- Exhibit 20, can I have that? A. Sure. Q. Exhibit 20 is the program you were given by Richard Graham to start off with? A. Yes. Q. I take it you were, you weren't given it on paper? A. That's correct. Q. Because it's pretty useless on paper. I'm showing you Defendant's Exhibit 4. Is that pretty much the same program, photocopy of it? A. Yeah. This looks like the same stuff. Q. Okay. Is Defendant's Exhibit 4 in such a -- is it readable enough to really analyze in any professional way? A. Yes. Q. You think it is? A. Yes. Q. Well, you just passed by one of the pages. A. Yeah. There's, this is -- yeah, there's trash on the bottom of this page, but you know, if I want to go through it with a fine tooth comb -- Q. Yeah. A. -- then I'd like to have every line. Q. Okay. A. If you -- I want to give a good opinion, I can give it with what's here. Q. Okay. Could you fasten that back? A. Sure. Q. Thanks. Were you given any other programs besides 20 to work with? A. While I was doing the work I looked at a number of versions, you know, of the code. Is that what you're referring to? Q. Yeah. What, what versions did you look at? A. This code has been under continual modification since I came on the screen. I've seen dozens of different -- I've seen dozens of, you know, different versions. Q. Well, did you see Plaintiff's 19? A. This one, this is the stuff that Larry -- Q. It says -- A. No. I haven't seen this until, geez, this Monday, the first day we came up here, was the first time I saw this. Q. Okay. Any of the Exhibits in front of you, other than 20, did you, can you identify that you saw? A. No. This is, no, these, I didn't see these before, 18 or 19, no. THE COURT: You came up here on Labor Day? THE WITNESS: No. Tuesday. I was up here yesterday, the first day. THE COURT: Yeah, right. THE WITNESS: Yeah, Tuesday. BY MR. OSTROWSKI: Q. Now, the, the duplication that you pointed out in, I believe that was 18, a couple lines were duplicated? Could you show me -- A. Oh, yeah. Okay. Here's define. Up arrow and down arrow. Okay. And then he's got a global right here. Up arrow, down arrow. He's, you know, page up, page down. You can see he's setting them equal to the same values there. Q. That's an absolute duplication, you say? A. Yeah. They're -- he's duplicating the functionality twice. One's a define, one's a global, but you don't need them both. Q. Okay. A. You should have, it should be one or the other really. Q. There's no other purpose for that, repeating that command in a different part of the program? A. Not that I could -- no. Q. Now, I take it that, you mentioned that you worked on a number of versions. Is that basically how it works in the industry, that a program is continually revised? A. This changes from client to client. Most of my work is, I come in and do a one time, and they say, okay, this is what we want. I go, here it is, and then I go away when it's done. And we've been, we've been modifying this one for a couple months. Q. And when you modify something, you take out some of the bugs and duplications, and so on? A. Yeah. If there's bugs you want to remove them. If you see something that's, that's bad, you know, you want to remove them. Q. That, the fact that a command is duplicated would not affect the -- it would still work, correct? A. It would work, sure. Q. And you say now that would slow it down, is that correct? A. This, this page up, page -- no, this won't slow it down. Q. Oh, the fact that that command is duplicated would not slow it down? A. Not so the user is going to -- this will slow you down in compile time, but the customer is never going to see that. Q. Well, when you say, slow us down in compile -- slow you down in compile time, you're talking, what, a microsecond? A. Yes. Q. Okay. And documentation is not strictly speaking part of a program? A. Sure. Q. Well, the computer doesn't read it. It's for the user? A. It's not part of the EXE. You usually don't include document -- you don't have any documentation on your executable. Q. So with zero documentation, the computer would -- the program would speak to the computer and the computer would respond the same, as if another program had a thousand page documentation? A. From the computer, from the computer's end? Q. Yeah. A. Okay. Q. Now, what's the difference between this Turbo -- what language is 18 written in, Plaintiff's 18? A. 18. Okay. I believe this is written in Turbo C. You know, the styles are very similar. I, I would go back to Larry on this, is this in Turbo C? You can't answer. Q. You can't ask questions. A. This looks like Turbo C. Q. Okay. And yours, Plaintiff's 21, which I have here, this is in Turbo C? A. Yes. Q. Okay. That's the one you did? A. Uh-huh. THE COURT: Uh-huh? THE WITNESS: Sorry, Your Honor. BY MR. OSTROWSKI: Q. Now, referring to Plaintiff's 20, that's what you got from, so Brian was the last programmer that worked on that, Brian Martin? A. Yes. Q. Is that correct? I have to keep this straight. That's why I'm asking you. A. Me, too. There's enough to track there. Q. Can you -- have you analyzed the structure of that program or the way the modules and functions and subroutines fit together and work? A. Yes. I've given it a look. Fine tooth comb, no. Q. Okay. A. Yeah, enough to -- Q. Is it fair to say that in comparing 20 to 18 and 19 you essentially simply looked at the source codes for literal -- now -- A. Yeah. I looked at the source. Q. Not to insult you, but just to make a point. A high school student could compare source codes from one program to another? A. It's -- how good a job can he do? Yes, he can, he can do the best he can with his skill. Q. Well, you could go through -- comparing source code is essentially reading, symbols? A. That's part of it, yeah. Q. Well, that's all -- a literal comparison of source code is simply reading, is that correct? A. Okay. Yes. Okay. I think I see what you're saying. Yeah. Q. So that any, anybody who's reasonably literate, including a high school student, although there's some question about that these days, could read two programs and say, look, mom, int held character locals 50 is the same here and here? A. Sure. They could -- Q. I looked at every line. A. -- give a limited, as their skill allows, they can make the comparison. Q. Is that, is it fair to say that that is the level at which you compared Plaintiff's 20 to Plaintiff's 18 and 19? A. No. Q. It's not? A. Well -- Q. You just said previously that you didn't do a structural analysis? A. I didn't, I didn't need to do a complete structural analysis to, to render my opinion. I've had enough experience so I can -- Q. Well, what is that opinion based on? That's what I'm asking you. Is it based on a literal comparison of source code or is it based on a structural analysis, or is it based on something else? A. Okay. It's based on certainly, you know, the literal documents that I'm comparing. Q. That's source codes, right? A. Yes. It's based on my experience, you know, 10 year -- or whatever, 11, 12 years of experience in seeing how things are done. It's based on a knowledge of the language in question, Turbo C. Q. Well, you mentioned some little quirks that different writers use, but that's not really -- that's not -- what was the quirk that you mentioned that you used? A. Okay. There's -- Q. I forgot. A. There's a couple. You're talking about the, when you say quirks, you're talking about 18, the -- Q. Well, the way you would accomplish, like, it doesn't really matter whether the tab is five spaces or six. Somebody in the industry might use six all the time, just so everybody knows who he is, but that doesn't affect the program, right? A. Yeah. Within limits, yeah, you can say these are the same. Q. But even that, even an unimportant source code is source code, and so that, isn't it correct that that's the level of your analysis and comparison here? A. No. Q. Okay. Then what I'm asking you is, did you compare the structure of Plaintiff's 21 with the structure of -- A. Routine structure, the supporting file structure? Q. Well, you're going to tell me because I don't know anything about computers. A. Okay. Q. Did you compare the structure of -- okay, you want to know what structure I'm talking about. What structure might I be talking about? A. I would assume -- Q. When you say structure of a program, what are we talking about? A. Okay. I'm assuming you're talking about the source code because that's the context of our conversation here. Q. Well, but couldn't you write the exact same -- well, couldn't you accomplish the same function with different source code? A. Yes. Q. In fact, there's different languages, right? A. Yes. Q. So you wouldn't even be the same, couldn't even be the same language, but it would be the same specific idea in different source code? A. As long as you have, you know, you know what you want on the end result, you can get that result a number of ways. Q. So what I'm asking you, did you do a structural analysis of these programs, above and beyond simply looking at the source code? A. I've done a structural analysis of 20, Exhibit 20, above and beyond the source code, certainly, because I've been involved with it. 18, no. The source, looking at the source code was sufficient to give an opinion. Q. Okay. With 18 you simply looked at the source code? A. That's correct. Q. No structural analysis? A. No. That's -- yes, I did do a structural analysis when I was looking at the, looking at the source, yes. Q. Well, I'm confused. THE COURT: Excuse me. Is it 18 or 19 that you did not do the analysis on? THE WITNESS: 18. THE COURT: 18. Thank you. BY MR. OSTROWSKI: Q. Okay. What did you do with 18? You looked at the source code? A. Yes. Okay. Included -- okay. I'm making a structural analysis as I'm looking at the source code because this is, this is my only document. This is -- I got to look at this to do any kind of analysis. Q. Did you do a complete and professional structural analysis of 18? A. No. I could -- you could -- complete, you're talking -- Q. Well, yeah. Did you do a structural -- A. You're talking exhaustive detail, is that -- Q. Okay. Well -- A. No, I didn't do exhaustive detail. Q. Well, detail, exhaustive detail would be the -- well, when you're looking at the structure of a program, you're looking at the modules, right? A. Yes. Q. And do you know how many modules -- A. That's part of it. Q. -- or functions there are in 18? A. I didn't count them. I can, you know, I can look at the thickness of the -- Q. Is it fair to say that there are about 50? A. Well, shall we -- Q. Pardon me? A. -- try them? Let's count them. I'm looking for a function prototype. That would save us some time, but it's, okay. One, count them -- can I write on this? THE COURT: No. MR. OSTROWSKI: I don't think so. THE WITNESS: Okay. There's not really a -- no, I just want to check them off. There's no nice visual boundaries between routines. THE COURT: Well, mark it on this so you're not -- THE WITNESS: Okay. THE COURT: -- wrecking the Exhibit, unless they agree that you may. I don't know if that's true or not. THE WITNESS: I don't need to. THE COURT: Mr. Ostrowski, Mr. Kitchen. His question is, does it contaminate the Exhibit if he puts little check marks on it? THE WITNESS: No biggie, one way or another. MR. OSTROWSKI: As long as they're -- MR. KITCHEN: As long as we know he's putting them on. THE WITNESS: I'm just -- MR. OSTROWSKI: As long as they're identified, perhaps with his initials. THE COURT: Should they be in pencil or not? THE WITNESS: I can just do check marks and go down through here. I just need something to -- MR. OSTROWSKI: I think a pen -- MR. KITCHEN: It wouldn't bother me if he wrote on it. MR. OSTROWSKI: -- would be -- THE COURT: Check away, Mr. Swanson. THE WITNESS: All right. BY MR. OSTROWSKI: Q. What did you say? A. Looks like we're going to be pretty close. Q. Close in what sense? Which means? A. 50. Q. Oh, to 50, oh. A. 50 routines, yes. Q. I was just guessing. A. Good guess. I got 49. Q. Okay. So I guess what I want -- I guess what we were talking about is, have you done, have you done a structural analysis of -- which has 49? A. Exhibit 18. Q. Have you done the structural analysis of 18? I believe you said no because it's too time consuming? A. Okay. I have not done an exhaustive analysis of 18. THE COURT: What are these things you were counting and got the 49? THE WITNESS: Routines, number of routines. THE COURT: In 18? THE WITNESS: I have done an analysis, not an exhaustive one. THE COURT: In 18? THE WITNESS: Pardon me? THE COURT: In Plaintiff 18? THE WITNESS: That's correct. BY MR. OSTROWSKI: Q. Okay. And you haven't done an exhaustive analysis, but what is your analysis of the structure of 18? A. Regarding? Q. It's a computer program, it has a structure. What is it? A. Okay. There's, this is the problem with computers. You can, things can -- this is -- I've got a lot, there's a lot of things I could talk about. I'm trying to, you know, what do you really want to know? THE COURT: You mean, you don't understand the question? BY MR. OSTROWSKI: Q. Well, do you know enough -- I'm sorry. A. The -- I could probably, you know, if I really wanted to, I could probably spend an hour -- THE COURT: Well, why don't you wait for a question and see if he can help you on it. BY MR. OSTROWSKI: Q. Do you know enough about the structure of 18 to compare it with the structure of 21? A. Yes. Q. Okay. Tell us. What are the similarities and differences between 18 and 21? A. Okay. 21 was the code that both Brian and myself worked on, I believe. THE COURT: Do you have it there? THE WITNESS: I don't -- MR. OSTROWSKI: I have it here. BY MR. OSTROWSKI: Q. Well, I thought 21 was the one that -- here it is. I thought 21 was essentially your -- that you worked on that alone, not that you didn't get other stuff to begin with. A. Okay. Both Brian's and my code is in here. Q. Well, in the sense that you got Exhibit 20 and you started with that as a point of departure. A. And changed it eventually into 21, yeah. Q. Okay. So, well, what can you tell us about the structural similarities and differences between 18 and 20 or 21? You can take either one. A. Okay. Similarities. They both follow, they're both addressing the same type of specs. Q. I'm sorry. Can you identify exactly by number, 18 versus which? A. Okay. 18 versus 21, they both, they are both doing the same real basic type of thing. 18 is like a junior version. Okay. It's got a few features. It's got your, the big menu you throw up, and you know, you select an option from that and you have a few options off it. 21 also has a big menu you throw up. You've got a lot more options off it and a lot more features. Q. Well, what are the options that you have off of the menu in 18? A. Okay. We got an extract and -- okay. You can select a category. Q. And how is that accomplished? A. The user enters the number of -- they're displayed a main screen and each category has a little number by it. They pick the number they want, they enter it. Q. Well, what I'm saying is, how is that accomplished in the program, in the source codes? A. Okay. He's got a do while here. Q. In which one? A. 18. Yeah. He's got a do while, which is -- THE COURT: He's got a what? THE WITNESS: A do while. It's a type of C statement. You do this set of instructions -- THE COURT: The word D-O, and a separate word, while? THE WITNESS: Yes. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. And what does he do with that? THE COURT: That's in 18? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. What does he do with that, that -- A. Okay. He's got a do while statement here. Let me be sure I'm checking the right loop. Q. Can you identify the page -- well, I guess that's not really numbered, is it? A. They're not really numbered. Okay. Do text only. Okay. Now, this is advanced. Okay. Here we go. Main loop. Yeah. He's got a do while. Q. What is the function name for that, the section where you're at? A. This, this is in the main line routine, the main -- Q. Does it have a function command that's sort of broken off to the left, like int int main? Is int main a function? A. Okay. Yeah. Int main is your, the head routine, the one that is supported by all the others. Q. Okay. And how does, what does he do with int main functionally-wise? A. Okay. As far as cruising for menu options? Q. Yes. A. He -- the specific command, he's doing a do while block. He performs a block of code while a condition is true. And what this condition eventually translates back to is, you continue to process menu commands until the user quits. Q. Okay. Can you find that similar function in -- A. Sure. Q. -- in 20? A. In 20. Okay. Okay. Yeah. Here's your main loop. Q. And what is the command title for that section? Is it the same? A. This is a do while block. Q. On the computer, I take it when there's a new function it's sort of broken off to the left, or at least has a name that's recognizable as a main function? A. Okay. Do while is not a function. It is a -- it's a command. Q. Okay. A. It's not a group -- a routine, a function, is a group of individual commands, very, very small pieces. Q. So what you're saying is that -- well, this -- we're talking about extract and view, is that correct? A. No. I was talking about how they were getting, selecting a main menu choice. Q. Okay. I thought we were talking about -- okay. I guess I got ahead of you. A. Oh, no, no. I'm sorry. I'm not -- Q. You're back, okay, this is how -- what, how the computer gets the menu on the screen? A. This is how the, basically how the computer gets and processes commands given to the main menu. Q. Okay. And is it fair to say that the way the two programmers did that is similar functionally? In 18 and 20? A. Yes and no. Q. Well, what are the similarities first? A. Okay. We've got a do while block, certainly, up at the top, which is, this is a common way of doing it. I've got no problems with it. Okay. We start out -- Q. Well, when you say do -- that's a type of program? A. No, that is -- that's -- a do while is a command. Q. Okay. A. And a do while block, okay, what a do while does, is, you say do -- here, let me show you this. Okay. See right here. Do, there's the do, and we have a angle bracket to group this whole block, and there's, where's our while here. Q. You might want to put a check mark where do is. A. Okay. Q. Or maybe just put your initials. A. Okay. Q. Let me know where you're referring. A. Okay. And there's your -- Q. I see a while. A. No, I'm looking at the wrong one. Okay. I might want to look at this heading, number of categories -- okay. Here we go, here's our do while. Okay. Q. Okay. A. See here's, this is a do while statement. Q. This is 19, right? A. This is 18. Q. Oh, 18, I'm sorry. A. Did you want to -- Q. No, no. 18 is fine. A. Okay. Okay. Here's our do, and we've got a brace here to group this whole group of commands. So we're going to say do this group while this condition is true. Q. Okay. A. So this, this is a command, although we've got part of it here and part of it here. It's a do block while condition. Q. Everything between do and while could be totally different in each program? A. Yes. Q. And everything after while till the next function could be totally different? A. Sure. Q. Okay. How, how is their do while -- how are their do while functions similar, the way they express the idea? A. Okay. Within the block, okay, he's checking, he goes in and he checks for a new config file within -- Q. Is that on 18? A. Yes. -- within the main loop, which I don't really, I don't understand what he's getting there, you know, what he's gaining. Okay. If dir-zero equals S, okay, he's positioning, he's positioning on the menu. He's putting the cursor down where, where you want to see it after your question. He's looking for the command. Okay. And this -- okay. This dir, yeah, okay, right in here, this is where he's going and pulling up the -- this is your route to a lot of the other subroutines. Q. Okay. Is there any similarities between that, the way he did that and the way it's done on 20? A. There are similarities, okay, similarities and differences. Okay. Yeah. Here's the do while we were talking about. Okay. Do this whole block while. And this is his, what we were just talking about, the supporting routine that gives him access to all the other things. Okay. And here, here's our main loop over here, in 20, Exhibit 20. Choice. Okay. See, it looks like -- okay. I'm assuming our braces aren't, the tabs aren't matching up on the braces, but that must be it. I'm not going to cruise for braces here. Okay. So in 20, what he's doing, okay, he doesn't, you don't need to check for config again. You don't do that. You display the menu. Okay. Is he refreshing the menu up here. Okay. I don't think he refreshed the menu at the top of this loop. Okay. Well, anyway, here we're refreshing the menu at the top of the loop so make sure you got the right screen up. We go in and we grab a choice. Okay. Choice. Get main menu choice. There you go. This is -- okay. This is kind of similar to the DIR command over here, only you don't use this as a gateway to everything else. You just get a choice out of this, like you typed in 25. Fine. There's your 25. It spits you back something that it knows, it knows is legal. This protects you against, well, suppose I'm going to go in and I'm going to go, strip the keyboard and enter it, this will say no, no, be nice, you know, and that takes care of filtering out garbage. Okay. Then here, so here we've, we do the whole ball of wax right over here in this dir, in the dir routine. Here we're breaking it up, okay. You pull up the menu choice. And then you jump into, okay, this is an if then else, a switch. And these, you're, you're breaking out into a number of separate routines right off the main instead of going through one and splitting it out those. This is, this, yeah, this is different. Okay. Let's continue on. I can just cruise as long as you want me to, probably. Q. Okay. Those, do they accomplish the same task? A. From a big picture, yes. Q. Okay. A. From a small picture, they're -- no, because our main, over here our main line just passes choice and everything down, here we get choice and save more information in the main line. Q. Is it -- in your opinion does the programmer of 20 start out with the program of 19 as his point of reference? A. It doesn't look like it. Okay, the source code, or the -- Q. Well, no, the function or the ideas, the way he accomplished it? A. He does things a little different. Yeah, things are done differently in 20 than they are in 18. Q. Okay. And which -- okay. Now, is part of an analyzing structure the way different functions fit together or what order they're in? A. Yeah. Q. And what is that all about? Is it simply the order on the program? A. Not necessarily, no. Okay. We were talking about support routines. Q. Well, you counted 49 functions, is that correct? A. Yes. THE COURT: Routines he said. MR. OSTROWSKI: I'm sorry, Your Honor. THE WITNESS: Yeah. They're, in C, functions and routines are the same because C only has functions. I'll spare you the tech details again. There are fine semantic differences here. BY MR. OSTROWSKI: Q. Okay. I take it that the first, the first routine or function is the one that the computer executes first? A. Yes. Your main line has got to be your first routine. Q. Okay. So -- okay. After you get to the main line though, I take it there would be some optional, options in which function would be in what order? A. Okay. You're talking about the order -- Q. Yeah. A. -- in which they're called, or which they're printed? Q. Well, the order in which they're printed reflects the order in which they appear in the floppy disk or whatever. A. The order in which they're printed is, doesn't really matter. You can put them in any order, you know, print them out in any order. If you're -- are you -- okay, if you're talking about the order in which they're executed -- Q. Right. That's what I'm talking about. A. Okay. Yes. They're -- it's going to come in and it's going to be generally the same, as long -- okay. If you go in and you select different options, you're going to be calling up different subroutines. If the first thing I do is go in and I call up category 25 and I want to extract, every time I go in and call up category 25 and extract, I'm going through the same sequence. Now, if I go to category 23 and want to view, I'm not calling the same routines in the same order, because I'm doing different stuff. Q. Okay. So the order -- THE COURT: Category is a different thing from routine or function then. THE WITNESS: The category -- yes. When I say categories here I'm referring to the general titles of the, the shareware that is on these disks. Like these, this is a category of word processors, et cetera. BY MR. OSTROWSKI: Q. Okay. So is it fair to say that the, the order in which routines appear -- well, again, I'm a little confused. The order in which they appear on a printout is the order that they appear on the computer, isn't that right? A. They appear in this order in the source code, yes. Q. Okay. And that's the order in which they're executed by the computer? A. That's not correct. Q. Okay. How, what determines the order in which they're executed by the computer? A. The order in which they're called. Q. Okay. And what determines that? A. That's determined eventually by the source code and by how the operator chooses to operate the program. In other words, you know, if you go in and you do different features, okay, you're not using the same routines. You're using, you know, maybe they're in the back half of the program. I know it's -- Q. Okay. So the order in which the functions appear on a paper printout is not particular important in analyzing the structure? A. You've got to have them there, but as far as knowing which way, you know, how the routines fit together in their calling hierarchy, no. Q. Okay. Have you done any analysis of the calling hierarchy on any of these program? A. Yes, I have. Q. Okay. And what is the -- with respect to 18 compared to 20, do they have any similarity in the calling hierarchy? A. Yeah. There's similarities and differences. Similarities, of course, are bound by the strictures of the language. That's not really worth, you know, that's not worth going into. This is what you're locked into with the C language. You -- differences as far as -- Q. Well, are there any, are there any similarities in the calling hierarchy which are not determined by the language? A. Yes. It's -- Q. Well, I mean in these, in these programs? THE COURT: Are you comparing 20 and 18 or 21 and 18? MR. OSTROWSKI: I'm trying to stick to 18 and 20. THE WITNESS: Okay. Well, let me grab the right ones here. THE COURT: Pardon me? You're both talking at the same time. THE WITNESS: Okay. MR. OSTROWSKI: I'm trying to stick to 18 and 20 right now. THE WITNESS: I'm sorry. I was -- THE COURT: 18 and 20. Thank you. THE WITNESS: I had a hold of some other ones. Yeah. There are similarities -- THE COURT: Whenever you come to a breaking point that you can tolerate, we'll -- MR. OSTROWSKI: Okay. I'm getting tired. THE WITNESS: I'm sorry, Your Honor. I'm trying to be clear here. Well, real generally, yeah. Real general case stuff, well, yeah, they're both C and they're both -- yeah. There are other differences, in that the routines aren't the same. Your calling hierarchy is not going to be the same with different routines. You've -- BY MR. OSTROWSKI: Q. So what you're -- A. You can't put a Volvo carburetor in a Huyandi and expect it to work. Okay. It's like a supporting -- Q. So what you're saying is that there aren't any -- THE COURT: Another field of your expertise? THE WITNESS: No, unfortunately. THE COURT: I'm kidding. BY MR. OSTROWSKI: Q. Okay. Is what you're saying that the, there aren't any similarities in the calling hierarchy between 18 and 20 that aren't just forced on the programmer by C language? A. Not significant. Not significant, no. Q. Well, what are they that you see? A. Okay. Let's do it. Q. Is that going to take a while? A. Yeah. MR. OSTROWSKI: We might as well break. THE COURT: All right. Now the thing is, we've got to complete the examination and testimony of Mr. Graham. You've got to do some work on that, Mr. Ostrowski, before you're ready. MR. OSTROWSKI: Yes, Your Honor. THE COURT: Mr. Swanson has to do some work. I don't know, I would suggest myself that you complete the testimony of Mr. Graham the first thing in the morning. Then bring Mr. Swanson in. But we'll leave it up to you. MR. KITCHEN: Well, my concern at this point, Your Honor, is that we not inconvenience anybody, including Mr. Swanson. THE COURT: Well, what's your schedule tomorrow? THE WITNESS: I do have things to do. THE COURT: In office? THE WITNESS: Yes. THE COURT: So you have things to do. Deadlines? Always a deadline, of course. THE WITNESS: Yeah. I'm working on a project right now, and I'm not up against the deadline, but -- THE COURT: All right. THE WITNESS: -- I would appreciate the time. THE COURT: You'd like not to come up here and sit in the hallway. You'd probably like to get up, get on the witness chair, get it done, and go home. THE WITNESS: That's correct. THE COURT: 9:00 o'clock tomorrow morning with Mr. Swanson. THE WITNESS: If that's, you know, I can be flex here. If I'm going to crimp anyone's style -- THE COURT: 9:00 o'clock tomorrow morning. THE WITNESS: Okay. 253 I N D E X Witness Dir Cross Redir Recr Richard E. Graham 254 Charles W. Morgan 369 375 Ralph A. Markwardt 382 415 430 431 Philip C. Swanson 432 463 Exhibit Ident Evidence Plaintiff 17 316 32 341 33 348 352