Phoenix CD 5.0/Phoenix-CD 5.0.iso/nightowl.004

Text File | 1994-04-12 | 297KB | 5,312 lines

                     UNITED STATES DISTRICT COURT
                     WESTERN DISTRICT OF NEW YORK

         ------------------------------------

         RICHARD E. GRAHAM,                           91-CV-800

                             Plaintiff,
                                                      Buffalo, New York
         -vs-

         LARRY E. JAMES,                              October 12, l993

                             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:  All right.  The trouble with these
         interruptions, we have to retrain counsel.  You were cross
         examining Swanson.  Had you finished that?
                   MR. OSTROWSKI:  I believe I had finished.
                   THE COURT:  All right.
                   MR. KITCHEN:  Yes, Your Honor.  We are in the
         redirect of Mr. Swanson.  And I would ask Mr. Swanson to, I was
         going to say take the stand, Your Honor, but --
                   THE COURT:  No.  That's only in England they take the
         stand.  Here you go to the witness box.  We don't stand.  They
         sit down here.
                   MR. KITCHEN:  That's true.  I always thought that we
         called the seat the stand, but there's so many incongruities in
         the law that that was just --
                   THE COURT:  I know it.  That's only one, a small one
         at that.
                   MR. KITCHEN:  In any event, Your Honor, we were --
         when he was testifying, he was essentially seated before the
         computer.  I note that --
                   THE COURT:  That's right.
                   MR. KITCHEN:  -- we now have a computer set up here.
         My understanding is, this is a different computer.
              That is to say, it is a computer that happens to be owned
         by my client, Mr. Graham, where the previous computer was owned
         by Mr. James.  But I understand, and I'm assuming, that they
         are in fact more or less substantially identical, in that they
         are IBM PC clones with a CD ROM drive and the appropriate
         operating system so that they're substantially similar.  Based
         on that, I'll ask Mr. Swanson to come up here and assume a seat
         at the computer.
              (PHILIP C. SWANSON, Plaintiff Witness, Previously Sworn)
                   REDIRECT EXAMINATION
         BY MR. KITCHEN:
         Q.   Mr. Swanson, you were finding a number of similarities in
         the various programs, I believe?
         A.   Yes.
         Q.   And I'm not sure exactly which ones we ran, but I did want
         to start with -- first of all, can you tell us what's on the
         screen right now, please?
         A.   This is, we're at the DOS  prompt,  and it looks like
         we've just run a directory to see what's in the, on this
         machine.
         Q.   Okay.  So is it safe to say since we have a DOS prompt
         showing that there's, there's nothing running at the present
         time?
         A.   That's correct.
         Q.   And we're at the, we're at the DOS level, kind of the
         bottom level of things?
         A.   Yes.
         Q.   So there's no application program that's currently in
         operation?
         A.   There may be TSR's, but I don't think there are any TSR's
         on this.
         Q.   Okay.   Recognizing that this is Mr. Graham's computer,
         are there -- is there anything on there that might interfere
         with us putting in one of the CD ROM's and running it,  as if
         we were a customer who's just purchased his Night Owl CD ROM
         and --
         A.   It should be ready to roll.  I understood we put a -- yes,
         we have a ROM drive, ought to be ready to roll.
         Q.   Okay.  We don't have to delete any of this -- I see he
         already has a Night directory, or anything like that.
         A.   That, he's already loaded.  He's already got something in
         there.
         Q.   Okay.  Would it be best to delete that, and is there a
         problem --
                   MR. KITCHEN:  I'll ask my client here.  Is there a
         problem with changing that, Mr. Graham?
                   MR. GRAHAM:  You might have to change the attributes
         on the files.  They're read only files.
         BY MR. KITCHEN:
         Q.   Okay.  Well, I want to put us in the same position, as a
         user or a customer who has just got his Night Owl CD ROM disk
         in the mail and was going to use it.
         A.   We should be there.
         Q.   Okay.  All right.  So this is okay the way it is?
         A.   Yes.
         Q.   I'm going to give you Plaintiff's 2 here and --
         A.   You want this loaded up?
         Q.   Yes.
                   THE COURT:  Denis, just take that one and raise the
         mike and move the pedestal out.
                   THE WITNESS:  Okay.  It's loaded.
         BY MR. KITCHEN:
         Q.   All right.  It's loaded.  Now, could you operate that one
         as a user would?
         A.   Okay.  I'm going to go to D, the CD ROM drive, and install
         is usually a good bet.  Okay.  I'm going to do a directory to
         C.  What we have on the disk, I'm going to look for executable
         files.  Okay.  I got Night, the Night.XE and the PK.UNZIP XE.
         The one we're interested in is Night.
         Q.   Now, momentarily there was a screen that came up there.
         Could you tell me what that screen was?
         A.   That was a copyright screen.
         Q.   Okay.
         A.   And I'm not sure whose name was on it.  It went by --
         Q.   Okay.  Can we back out and maybe start again?
                   THE COURT:  Copyright is spelled C-O-P-Y-W-R-I-T-E,
         but that doesn't matter.
                   THE WITNESS:  Okay.
                   MR. KITCHEN:  All right.
                   THE WITNESS:  Night Owl's Computer Service, written
         by Richard Graham.
         BY MR. KITCHEN:
         Q.   All right.   And the Court has already noted that
         copyright was spelled C-O-P-Y-W-R-I-T-E, but I suppose that's
         to look distinctive.  All right.  What screen are we looking at
         now?
         A.   Okay.  This says CARRS file menu.  This is your main menu
         for the program.
         Q.   And the -- you were reading the top line.  The second line
         is a series of what looked to be asterisks or, excuse me, equal
         signs with some headings within them, right?
         A.   Those are your, look like column headers, your category
         number and a corresponding category description.
         Q.   Okay.  Now, what, how would you describe this particular
         screen as -- what would you call this screen or refer to it as?
         A.   I'd call it the main menu.
         Q.   Okay.  And what functions can a person do from this menu?
         A.   Judging from the screen, it looks like we have the option
         to choose a category,  and I had -- you can escape from this,
         I think I punched F-1 to get out.  So it looks like we got,
         choose a category, and  escape.  Unless there's hidden
         commands.
         Q.   Okay.  Do you know if there are any other commands you can
         do out of this screen?
         A.   Well, I don't know.  I would hunt around and see if things
         worked.
         Q.   Okay.
         A.   I would just try a bunch of key strokes.
         Q.   Like run through the function keys, for example?
         A.   Sure.  No function keys.
         Q.   All right.  Let's --
                   MR. OSTROWSKI:   Your Honor, may I note for the
         record that this is beyond the scope of redirect.  I don't have
         any objection to it, but I just thought that that should be
         clear.
                   THE COURT:  As long as you have no objection.
                   THE WITNESS:    I'll try some other stuff here.
         Okay.  Now, the other, looks like the other stuff is coming in
         -- no, no.  It wants a number.  I tried a letter, and it looks
         like it's taking keyboard input to -- it wants a category
         number.
                   THE COURT:  In fact it says bad file name or number.
                   THE WITNESS:  Yeah.
                   MR. KITCHEN:  Okay.
                   THE COURT:  Down at the lower left.
                   THE WITNESS:  Yeah.  It threw us an error and it's
         going to kick us out, back to DOS, with any -- it says, hit any
         key to return to system.  So we'll have to get back into it
         again.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  No.  It doesn't look like there's any
         other commands off that.
         BY MR. KITCHEN:
         Q.   Okay.  So why don't we put in one of the commands that it
         asks for, which apparently is one of these numbers?
         A.   Okay.  We'll choose a number.  Let's go to 8,
         education/teacher helpers.  8, return.  Okay.  We're viewing a,
         what I call a category listing.  This is a listing of files
         contained under the education/teacher programs.
         Q.   Now, could you tell us what's on the top line of this
         screen?
         A.   On the very top line are some commands.  We got quit
         escape, your navigation keys, up, down, page up, page down.
         Home is apparently for unzipping.
         Q.   Okay.  And --
         A.   The main screen is a, has a title listing followed by
         zipped files contained relating to this subject.
         Q.   I see.  And then right below that, the second line on the
         screen?
         A.   Okay.  Education programs, the second line on the main
         screen is location of files, and it gives a directory number,
         008-A.
         Q.   All right.  Now, to what extent can this screen be
         manipulated?
         A.   We can navigate, we can scroll the list, look up, and I'm
         doing so right now.  And apparently, I see no other commands.
         I'm assuming that we can -- okay.  That was -- okay.  I'm
         scrolling the list.  I tried a home key and that kicked us out
         into, out to a DOS prompt, or to a DOS --
                   THE COURT:  Seemingly into the middle of it.
                   THE WITNESS:  Yes.  I'm sorry.  Okay.  I hit, as a
         regular part of using the navigation keys, home is usually used
         as a navigation key.  So I just hit it.  It blew me out into a
         DOS shell, and I just exited back, so --
         BY MR. KITCHEN:
         Q.   Well, up at the top it did say --
         A.   It did.
         Q.   -- use home to unzip?
         A.   Yes.
         Q.   Okay.  And you've previously described what unzipping is,
         but what would be then the procedure here for somebody to
         unzip?
         A.   Okay.  Let's choose a file.  I'm assuming that the top
         displayed line is, in the main screen is the one that is
         display.  So I'm going to unzip tornado.zip.  I have now made
         the first line of the screen.  I'm going to press home.
         Q.   Now, there's a --
                   THE COURT:  You came back to that same screen, where
         we seem to be in the middle of something.
                   THE WITNESS:  This is -- oh, this wants us to run the
         PK.UNZIP command ourself.
         BY MR. KITCHEN:
         Q.   What is --
                   THE COURT:  But I notice on the top line you have a
         single word drive with a small d, period, as though you were in
         the middle of a sentence.
                   THE WITNESS:  Yeah.  The, looked like there was a
         little, the message text was a little bit long and the top part
         of it went away.  Maybe we can --
         BY MR. KITCHEN:
         Q.   Well, before you do anything, could you tell us what, why
         don't you read to us what's on the screen there so we're --
         A.   Okay.  From the message, like I, as I already said, the
         message is clipped off part way down, but we have drive,
         period.   We did not add this module because there may be many
         users not  using hard drives, so we're showing the unzip part
         of this program out now, here is how it works.  When you --
         Q.   Does the term shelling out mean anything to you?
         A.   Yes, it does.  We're at shell right now.  That is,
         creating a small bubble within your program within which you're
         at a DOS prompt again.  It's --
         Q.   Okay.  Is this like we were before we started up, when you
         first sat down here?
         A.   No, it is not.  We have DOS and we're in the program, and
         within that program, we're in a subset, which is a DOS shell.
         Q.   But we have the same prompt at the bottom of the screen
         with the little blinking cursor next to it that we did when you
         sat down pretty much?
         A.   We are running in -- okay, yeah.  It looks like a DOS
         prompt.  From a technical end, it's different from straight
         DOS.
         Q.   Would you be able to give it DOS commands --
         A.   Sure.  This --
         Q.   -- and have it do things?
         A.   Sure.  This is made specifically to look and behave like
         DOS.
         Q.   Okay.
         A.   And, well, it is DOS.  It's also a shell.
         Q.   All right.  So we are, if we could call being at DOS being
         at kind of square one, we are at square one, but kind of
         artificially so?
         A.   Yes.
         Q.   All right.  And is there a way, if we wanted to, to go
         right back where we were, is there a particular easy way to do
         that?
         A.   Yes.  In the last paragraph here, it says, when you finish
         up with the unzip part of this, go back to the root and type
         exit.
         Q.   Okay.
         A.   So --
         Q.   Well, now, you started to read, and I think you read the
         first paragraph, why don't you continue with that?
         A.   Okay.  From paragraph two, when you see the command line,
         all you do is go to the subdirectory where the program is
         located at and type ...., example, okay, program is -- here's
         our example, a program is in 001A, and then they give you the
         PK.UNZIP command line, in this case PK.UNZIP AA.ZIP from C:\CD
         ROM or PK.UNZIP A.ZIP to A: and okay, sure, we'll finish, or a
         third example, PK.UNZIP 001A\AA.ZIP.  We've got, okay, CD
         should be :\ but it's \CD ROM.  That's the end of the examples.
         Text continues, this will unzip the program to your drive, or
         if you just want to see the files in this zip program you can
         use the program like this.  Again, example, ..PK.UNZIP minus
         key, that's a command line.  The file is AA.ZIP.  And this will
         allow you to see the files in the program.  New paragraph.
         When you finish this with the unzip part of -- when you finish
         with the unzip part of this, go back to the root and type exit
         and continue with a file listing.  And the next line is type
         exit exit for emphasis.
         Q.   Okay.  Did --
                   THE COURT:  Now, you noted earlier a situation where
         you thought a colon was missing.  Is that inadvertent or
         intentional?
                   THE WITNESS:  Inadvertent.
         BY MR. KITCHEN:
         Q.   Did you --
                   THE COURT:  Should it be there or not be there?
                   THE WITNESS:  It should be there.
         BY MR. KITCHEN:
         Q.   Did you understand this, what you just read?
         A.   Yes.
         Q.   Okay.  Is this, to somebody who has been using computers,
         or IBM PC computers, is this an understandable explanation of,
         of what to do with PK.UNZIP?
         A.   Yes.
         Q.   Okay.  Do you remember which, which one we wanted to
         unzip?
         A.   Tornado, I believe.
                   THE COURT:  Yes.
         BY MR. KITCHEN:
         Q.   Okay.  Do you remember it accurately enough, do you think,
         to be able to do what it says?
         A.   Sure.
         Q.   And when you type it in, go ahead and tell us what you're
         typing in.
         A.   Okay.  PK.UNZIP 008A and that's --
                   THE COURT:  Backslash?
                   THE WITNESS:  Yes, backslash.  Tornado.  And I think
         that will -- no.  We got to send it to, we're in the ROM right
         now, so we got to send it to, send it to C\Night.  I think
         there's a Night directory on there.  Okay.  Yeah.  It's, the
         PK.UNZIP command is running, looks like it took it.
         BY MR. KITCHEN:
         Q.   So after entering in that command and then you hit the
         return key, and what happened?
         A.   The PK.UNZIP command executed, and it looks like it
         executed successfully.  Or, we can go and check the results, if
         you'd like.
         Q.   Okay.
         A.   Okay.  We're switching to C drive, C:, and change CD Night
         to change to the Night directory where we did it, or we, our
         destination directory.  And I'm going to do a directory, DIR,
         tornado.wild card, okay, and the three files listed, that did
         said it was exploding there, have all shown up.
         Q.   Okay.  So now we could, we could run this tornado program,
         whatever the tornado program is?
         A.   If it was zipped correctly, we ought to be able to run it
         right from here.
         Q.   Well, let's see what it is.
         A.   Okay.  Tornado, return.  Okay.  This is a, tornado alley,
         is information about tornados, looks like.
         Q.   I guess for the record we could say we have a screen with
         some somewhat larger type showing on it.  Within the middle of
         it there is apparently an outline map of the United States with
         the kind of symbols and lines and arrows that we're used to
         seeing perhaps on broadcast weather maps or TV weather maps.
         And so apparently this has something to do with the weather.
                   THE COURT:  It's almost too bad in a situation like
         this that we don't have an auxiliary camera.  You could take a
         picture of what's on the screen and mark it as an Exhibit.
                   THE WITNESS:  Yes.
                   MR. KITCHEN:  Or a printer to print this out.  Well,
         in any event.
                   THE COURT:  Or have a printout, which you don't.
         BY MR. KITCHEN:
         Q.   So this particular program has gotten us, I should say the
         CARRS program here that we put in, or Night, or whatever, has
         gotten us where we want it to be if we wanted to look at this
         program, okay?
         A.   This is correct.
         Q.   All right.  Now can we back out to where we were?
         A.   Okay.  Escape exits.  Hit any key.  We're back to the DOS
         prompt.
         Q.   Okay.
         A.   Now, I'm assuming you want to return to the Night program?
         Q.   Yes.
         A.   Okay.  We switch back to D drive, and as previously
         instructed we type exit.  Gets us right back into our category
         listing.
         Q.   Okay.  Now, let's assume for a moment that you were not
         engaged in the task of, or being hired by Mr. Graham to do
         anything about these programs, or something like this.  If you
         had purchased this disk, and knowing what you do as a
         programmer, and went through this procedure, would you see some
         obvious areas in which you would, you would think you could
         improve this particular file retrieval program?
         A.   Yes.
         Q.   What would you, what would occur to you?
         A.   Well, it's, what's there is good but they could use a lot,
         you know, a lot more nice features.  The whole, the whole
         purpose to, of this thing is to get, go in, look around and
         find what you want and extract, just features to aid you along
         the way.  Like you said, hey, it would be nice to print that
         file.
         Q.   Okay.
         A.   You know, it would be nice to assemble, you know, assemble
         a list from -- we have all these separate lists.  It would be
         nice to have some way to pull that information together a
         little bit.
         Q.   Well, you saw the procedure we went through to unzip
         tornado, which was successful, but it was nevertheless, it took
         a number of keystrokes, didn't it?
         A.   Yeah.  Oh, yeah.  Put PK.UNZIP right in there, so you
         wouldn't have to shell out and get that.  That should be in
         there.
         Q.   Now, you've given us --
                   THE COURT:  Shell out is a technical term?
                   THE WITNESS:  Yes, Your Honor.  That's the, going to
         the DOS prompt that, you know, is in, that we make within that,
         that bubble within the program, our own little DOS environment.
         BY MR. KITCHEN:
         Q.   Now, you used a sentence something to the effect of, make
         that PK.UNZIP easy to use.  Is that -- what would be involved
         in changing a program to do that?
         A.   That shouldn't be a problem.  I don't know if this was
         written in C or in Quick -- no, no.  You can call a DOS command
         from C and from --
         Q.   Quick Basic?
         A.   -- Quick Basic.  So I think this -- I don't know what
         language this one was, frankly, but either way, yeah, you
         could, you could just build a string and then say, okay, here's
         my DOS command, call it and run it right from within the
         program instead of, you know, shelling out and typing it in.
         Q.   How would -- so a series of commands or a module filled
         with a number of lines of code that were added to this program
         might be able to, to accomplish that?
         A.   Yes.
         Q.   Okay.  Is that something that you as a programmer could
         have done?
         A.   Sure.  Yes.
         Q.   Would you say that almost any programmer, is this pretty
         much journeyman programmer work?
         A.   Sure.  That's not a tough one, yes.
         Q.   Okay.  Now, how would the program know that you wanted,
         let's say tornado versus one of the others on the list, if you
         wanted to automate this thing?
         A.   Okay.  We as humans have a way to recognize this.  The top
         line is tornado.zip.  The computer, from the data structures
         and how you ought to be displaying it, also knows that that's
         tornado.zip.  It's right over there in the left margin in the
         top line of the screen.  You can yank that file name out.
         Q.   So you could simply write the program so that it would
         pick whatever's in the top line and --
         A.   Yes, exactly.
         Q.   -- say, that's my file name and I'm going to plug in the
         PK.UNZIP directions and do it all automatically?
         A.   Sure.  You'll also need to pull the -- we'll go back up to
         the top here, this 008, that's your directory, you just put
         that in the command line also.
         Q.   Okay.  So, in other words, everything that we see on the
         screen, every character, every item, every name, is in a
         locateable place in the memory of this computer?
         A.   Yes.
         Q.   Right now.  And so that if we wanted to add commands to a
         program that utilized names up here, it essentially can kind of
         read the names because it knows what all the names are?
         A.   This is true.
         Q.   Okay.  All right.  Now --
                   THE COURT:  The cough was off the record.
         BY MR. KITCHEN:
         Q.   Again, just looking at this thing, and your brief
         experience in running this thing, are there any kind of obvious
         things that a user, an experienced user, might say, gee, I wish
         this program would do thus and such?
         A.   Yes.  I would have put a command to tell the user how to
         get out of the program on the main screen.  Okay.  We came --
         okay.  I had to jump back to the main screen and looks, I must
         have put some additional input in there because it gave me the
         error at line 500 again.  Okay.  I'm refiring up Night, just to
         show you this main screen.  Okay.  See, we got, enter the
         number of directory to view.  This is great.  This tells you
         how to work the program from here.  What if I want to get out.
         What do I, escape?  No, escape doesn't work.  I don't know how
         I got last time.  Okay.  Control C gets me out.  Okay.  It
         would be nice just to, to tell the user that.  You know, and
         when you put in additional commands, you know, there'd be some
         other niceties, you know, and some other tools you could put in
         there, make room for them on the main screen so your user can
         see what is available to them.  Otherwise they don't know.
         Q.   Well, now, let me ask you something else, because earlier
         when we went through this thing, you had put in kind of a
         random letter, I think it was the letter D?
         A.   Yes.
         Q.   And that kind of threw us out of the program?
         A.   Kicked us out.
         Q.   It like, it kicked us out, as you put it.
         A.   I'd take care of that, if I were going to -- if we were
         going to be --
         Q.   You say you'd take care of that, but what would you do as
         a programmer?
         A.   You filter your input.  Any time you get something in from
         an -- you can't assume that users are going to type nice stuff
         into that keyboard.  You have to double check them.  You're
         asking for a number A.  In this case they gave you a letter.
         You should check that, and if you detect letters, you shouldn't
         throw an error, you should tell them nicely, oh, you did this
         wrong, try it again, please, you know.
         Q.   Now, is that something that can be put into a program?
         A.   Yes, certainly.
         Q.   Is it something that programmers typically do put into
         programs?
         A.   Yes.
         Q.   Okay.  We frequently see programs, do we not, where they
         have specific questions and they're asking for a yes or no or
         a Y or an N, correct?
         A.   Yes, definite, yeah.
         Q.   And will, will those programs, when they have those kind
         of questions in there, do they, do they also accept other
         letters, you know, typically?
         A.   They typically do not.  On d Base, you might accept a T or
         an F for true or false, but no, if you're going to ask for a Y
         or N, you better be pretty tight on it.
         Q.   Okay.  Is that a common routine, by the way, that we
         encounter in programs?
         A.   For a Y or N?
         Q.   Yeah.  I mean --
         A.   Oh, yeah.
         Q.   -- where they ask you a question and want you to know
         whether it's a yes or a no?
         A.   I wrote, myself I wrote a little routine, well, this was
         in Clipper, called get YN and all it does is it throws up a
         box, it asks you a question with a little yes, no.  So you know
         you're asking for yes or no, and then it will only accept a
         lower or upper case Y or N.
         Q.   Okay.
         A.   Because -- use it again.
         Q.   Okay.
                   MR. OSTROWSKI:  Your Honor, I'm going to object at
         this point, just on the grounds of relevance.
                   THE COURT:  Well, I must confess, I'm a little out of
         my league and I don't know how to rule on that.  I have to
         leave it to you gentlemen, and I'll solve it in the, in the
         end, of course, but I can't really rule on relevance at this
         point.
                   MR. KITCHEN:  Well, Your Honor, I'd like to address
         the scope of maybe the questioning because I think it's
         pertinent actually to the scope of the questioning on cross.
         You know, this is a case in which, of course, Mr. Graham
         brought an infringement case against Mr. James, and what seems
         to have kind of taken over in terms of being some of the
         central issues seem to be actually a counterclaim by Mr. James
         against Mr. Graham for infringement.
              And Mr. Ostrowski has utilized our witnesses and his cross
         examination to try and attempt to show similarities in these
         subsequent programs, which are really not addressed to our,
         plaintiff's case.  It's really much more addressed to
         defendant's counterclaim.  So I think, since we're in it --
                   THE COURT:  That doesn't destroy relevance, however.
                   MR. KITCHEN:  Right.  Right.  And I guess my feeling
         is, if we're in it, we're in it, if we're going to encounter
         that.  Otherwise, if we're going to follow a strict structure
         of saying, we'll only consider plaintiff's case now, and then
         we'll wait for defendant to put in his counterclaim --
                   THE COURT:  That would not be very efficient.
                   MR. KITCHEN:  Certainly not with the use of expert
         witnesses.  That's true, Your Honor.  So, I guess --
                   MR. OSTROWSKI:  I waived objection to the -- it's
         obviously beyond the scope of redirect, but I waived objection
         to that.  I'm simply objecting to a catalog of all the things
         that this programmer might have done to make one of these older
         versions of the programs better.  I'm just not sure why that is
         at all important.  The issue is --
                   THE COURT:  Well, that does lose me a little bit as
         to how we could have whipped cream on our apple pie instead of
         just dealing with the apple pie that's in the lawsuit.
                   MR. KITCHEN:  Well, because I think, Your Honor, that
         although we're starting with this, that the earlier programs
         had been somewhat basic and that the later programs had had
         some of this, these whipped cream features.  What Mr., Mr.
         James', the essence of his claim seem to be that he had some
         original programming work that was properly copyrightable, and
         that's the foundation of his counterclaim.
              If in fact all he did was put together things that were in
         common usage by programmers, then his copyright infringement
         claim must fail for lack of originality.
                   THE COURT:  One thing that bothers me in that regard,
         Mr. Kitchen, about Mr. Swanson's testimony, he's saying what
         you could do, should do, might do, it would please the
         customer, but he's sitting here and talking as of now, rather
         as of the time that these events that the lawsuit deals with
         were being dealt with.
                   MR. KITCHEN:  Yes.
                   THE COURT:  I don't know how much technology or how
         much advancement has come in in that time period which Mr.
         Swanson is now putting into his testimony.
                   MR. KITCHEN:  Well, I'll try and abide accordingly in
         my questions, Your Honor.  In any event, Mr. --
                   MR. OSTROWSKI:  Well, on the grounds of, apparently
         you're challenging originality.  I don't think, I mean, there's
         any number of dime store novels or romance novels that may not
         be very good, but they're all copyrightable if they're
         individual in expression.  So I'm not sure if you're going up
         the right alley in that regard.
                   THE COURT:  Well, I think you're right.  I think the
         worthwhileness of the salability, the usability is maybe quite
         aside from the problem we have here.
                   MR. KITCHEN:  Well, that's true, but I submit, Your
         Honor, that a dime store novel may be copyrightable, but the
         phrase, it was a dark and stormy night, is not.  And, and if in
         fact what Mr. James has added to his programs in the computer
         programming work that he did were simply standard phrases, if
         you will, standard expressions that are common to other
         programs, then it's questionable how much he can rely on a
         copyright for protection.
              And this is distinct, however, from the wholesale copying
         which is the essence of plaintiff's claim, in which it is said
         that plaintiff owned the program and Mr. James essentially just
         changed the name and sought to market the thing on his own.
                   MR. OSTROWSKI:  Well, our counterclaim is exactly the
         same, a wholesale copying by the plaintiff, so that's --
                   MR. KITCHEN:  Well, but, but the cross examination of
         this expert, Your Honor, has been based largely on uncovering
         not wholesale copying, but on degrees of similarity.  Mr.
         Ostrowski went out of his way of not only asking Mr. Swanson to
         identify similar modules, but then to identify how similar they
         were.  And then he even went a step further and said, even in
         the areas in which these modules are dissimilar, is there a
         similarity in function.  And so, Mr. Ostrowski is obviously not
         trying to simply establish a case of wholesale copyrighting,
         but rather --
                   THE COURT:  Well, I only suggest that we stay out of
         the, we could do this, or might do this, or should do that, and
         stick to what we're, the particulars we have in the lawsuit.
                   MR. KITCHEN:  Well, all right.  In any event, if I
         could resume my questioning.
         BY MR. KITCHEN:
         Q.   Mr. Swanson, is there anything that appears to you to be
         somewhat unique or out of the ordinary at all in this
         particular program that you're looking at, which is Plaintiff's
         Exhibit 2?
         A.   Well, the -- certainly the set-up of menus is not unique.
         The, you know, like the mainline menu, this thing where you get
         a, you pick off the main menu and go to a list of files, this
         is probably more unique to a file retrieval system, but I don't
         think you'd see it a lot outside of that.  I don't know what
         applications would have it.
                   THE COURT:  Isn't that basically what we're talking
         about in the lawsuit?  File retrieval systems?
                   THE WITNESS:  Yes, Your Honor, it is.  I just, you
         know, I'm just trying to cover my bases here.
         BY MR. KITCHEN:
         Q.   Well, can you envision a file retrieval system in which
         one would not offer a list of files?
         A.   No, I cannot.
         Q.   Okay.  All right.  Let's exit this and --
         A.   Okay.  We're back to DOS prompt.
         Q.   All right.  And let's look at the particular program I
         think that's in issue.
                   MR. OSTROWSKI:  I don't think the record identified
         the actual product name.  Could you --
                   THE WITNESS:  This is --
                   THE COURT:  What Exhibit number is it?
                   THE WITNESS:  This is Plaintiff 2.
                   MR. OSTROWSKI:   I know, but the product name,
         because --
                   THE WITNESS:   C.A.R.R.S.  I don't know if there is
         a --
                   THE COURT:  C-A-R-R-S.
                   THE WITNESS:  Okay.  We have a number, PDSI-002.
                   THE COURT:  It's not only C-A-R-R-S, but it's
         C.A.R.R.S.
                   MR. OSTROWSKI:  That's all I wanted.  Thank you.
                   MR. KITCHEN:  Okay.  Also, I note I have another
         witness who apparently has come into the courtroom.  Professor
         Brown, right?  Okay.
                   MR. OSTROWSKI:  Yeah.  I'd ask that he be excluded.
                   MR. KITCHEN:  Right.  I must ask Professor Brown to
         wait outside.  Thank you.
                   THE COURT:  Pick a comfortable chair in the hallway.
                   MR. KITCHEN:  Thank you.  Try and pick the most
         comfortable chair you can, sir.  I --
                   THE COURT:  There's coffee downstairs.  First floor.
         Coffee.
         BY MR. KITCHEN:
         Q.   Okay.  The --
                   THE WITNESS:  Can I ask Rick a question?
                   MR. KITCHEN:  I don't have a problem with that, if it
         helps to clarify what we're doing.
                   THE WITNESS:  Does C.A.R.R.S. set up -- this doesn't
         set up those environment variables, does it?  We're clean from
         those?  Okay.
                   MR. KITCHEN:  Okay.
                   THE COURT:  Mr. Graham shook his head from left to
         right and then he nodded affirmatively.
                   MR. KITCHEN:  My client has informed me that Night is
         on there and it must be deleted, is that --
                   THE WITNESS:  Okay.  Yeah, well, we can start from
         square one.  Okay.  What I'm doing is I'm removing the, all
         trace of the Night version we just ran from the hard drive, so
         it's like we're --
                   THE COURT:  From Plaintiff's Exhibit 2.
                   THE WITNESS:  Yes, Your Honor.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   All right.  Now I'm going to hand you Plaintiff's Exhibit
         5, which says Night Owl's, at the top, and it says PDSI-004,
         and has a 1990 copyright on it.
         A.   Thank you.  Okay.  Put that in the drive, switching to D,
         and do a directory to make sure.  Okay.  Looks like the stuff's
         there.  And we'd have Night.XE on D drive, so we're going to
         execute that.  Night and return.  Okay.  We have Night Owl's
         Communic -- this looks like a copyright screen.  File retrieval
         and viewer, Night Owl's Communications and CD ROM Publisher.
         Copyrighted, spelled R-I-G-H-T-E-D, April 16, '91 by Larry
         James and Richard Graham.  Written by Larry James.
         Collaborated with Richard Graham.
         Q.   Under that we have a little box with some, looks like
         moving letters.  What, what would that be?
         A.   That's a little scrolling message, welcome to the program,
         magic of unique programs data base.  Yeah.  That just keeps
         scrolling.
         Q.   What, what would be the purpose of that particular box?
         A.   Just a nice, a fancy message, you know.  Ooh, scrolling
         message, fun.
         Q.   More whip cream than real apple pie?
         A.   Yes.
         Q.   Okay.  Go ahead with whatever it tells you.
         A.   Okay.  Space to continue.  Press space.  Looks like we're
         getting into an install feature.  We have a window pop up in
         the middle of the screen.  Okay.  Enter full drive and path
         name for the Night work area, and it gives us a default of C,
         C night directory, C:\Night, which we will take.  Enter.  Okay.
         It asks, enter the name of the drive spec for CD ROM.  Our
         drives are --
                   THE COURT:  When you said you took that, you hit a
         single key.
                   THE WITNESS:  Yes, sir.  Enter alone for the default
         current -- default or current directory, and then it says
         that's going to be CD Night.  And we are in, we are in this
         directory on C drive, so that's, that's just like a shortcut,
         instead of, you know, the most often used they'll let you get
         by with one key.  Okay.
              Now we're entering the CD ROM drive, drive number, in this
         case D.  Okay.  Enter alone -- okay.  Dir containing the dir
         text files, and we'll keep it, we'll keep them on the CD ROM at
         D:\Text.  I'm taking most of the default answers here.
         Preference utility was shell or extract.  Enter alone for QF.
         We'll take the default.  QF.  Would you like to restore your
         colors to default.  Sure.  Y.  And it reviews -- is your
         environment correct.  It lets us review the subdirectory path,
         CD ROM path, dir text files path, and our preference extraction
         utility, which were all those entered, we say yes.  Rather Y.
         Okay.
              Update the auto exec bat file now.  I don't think I want
         to do that.  I'm going to say no here because I'm not expecting
         to run this a lot of times.  Okay.  And it kicks us back to
         DOS.  Well, we're at a DOS prompt.  And okay, okay, please make
         sure you have Night.XE in a DOS path and type install.  Okay.
         That's what it was talking about for modifying the auto exec.
         We'll just do it the long way.  I don't have to have it in the
         path.  I can reference the file explicitly.
              We'll look a little bit further.  See, now in retrospect,
         now, yeah, it would have been nice to modify the auto exec.bat.
                   THE COURT:  Now you're into the whipped cream.
                   THE WITNESS:  Yes.  Should have taken that whipped
         cream.  Okay.  I'm not telling you all the stuff I'm searching
         for that's not working.  Okay.  Looks like we're going back to
         D.  Okay.  Back to Night.  We'll just do back to C and try
         Night.  No, excuse me.  Okay.  Back to the space bar.  Make
         sure you have Night.XE in a DOS path and type install.
              Now, Night.XE isn't in our path but we're in the same
         directory.  Okay.  No.  We're -- this is a set, you use in set.
         Okay.  Now if we say Night, see what happened here is we just
         told DOS that when we say that, we mean this.  We mean, set
         Night equals C:\Night.  So now we've set up that.  We're just
         going to say Night.
              I'm going to reinstall this thing, and I'm going to modify
         the auto exec.bat.  Whole thing again.  Okay.  I'm going to zip
         through this, the install procedure again.  Now, update the
         auto exec.  Yes.  Enter drive letter you boot from.  A little
         bit different.  C.  Okay.  There we go.  We're in.
         BY MR. KITCHEN:
         Q.   Well, now, I notice that the previous program that you
         ran, the Exhibit 2, did not ask all these questions up front
         that we have just gone through, and had a little bit of
         difficulty with.  Why was there a difference?
         A.   It installs a different way.  This information is going to
         be necessary and, let's see, I think we ran the Plaintiff 2
         from the D drive.  So it's, if you run from the D drive, it's
         not going to need -- it knows where everything is on the D
         drive.  It's not going to do that.  That's -- okay.  I'm not
         positive if it was the D drive, but I want to cover myself
         here.
         Q.   Okay.
         A.   The installation is, the installation is different on
         this, on the two versions.
         Q.   Okay.  Now, what screen do we have here now?
         A.   I would again refer to this as a main menu file.  We have
         a list of categories, and a corresponding number.  The screen
         is a little bit different.  The colors are a little bit
         different.  They reference some commands that we can use right
         on the screen.  Okay.  Yeah.  They give us additional.  Number
         of the area to view.  Just like Plaintiff 2, have a C for color
         change.  We can do a string search.  And that tells you how to
         get out, zero to exit.  It also mentions PK.UNZIP right in the
         main screen.
         Q.   Well, let's try and do one of those PK.UNZIP.  Do we still
         have education there at category 8?
         A.   Education and helps, yes.
         Q.   Okay.
         A.   Category 8.  Okay.  8, return, and it throws us up a
         category menu.  This screen is a little different.  We've,
         okay, the top bar is the same -- okay, well it talks about our
         commands, we can get out, how to navigate.  Here, okay, home is
         now a navigation key instead of a unzip.  Tells us how to tag
         files.  Yeah, we couldn't tag files on the other one.
         Q.   Well, let me ask you then, is line 1, which in the
         previous program had been some little commands and direction,
         is that still used for the same purpose here?
         A.   No, it's not.  You can --
         Q.   No.  What I'm asking for is line 1 of this particular
         screen.  Is it being used for the same purpose?
         A.   No, it is not.  The -- do you want me to elaborate?
         Q.   Well, okay, but read what's on line 1 there?
         A.   Okay.  It says the file name, ALM095.ZIP.
         Q.   No, no, no.  That's the third line.
         A.   I'm sorry.  The top line of your, I call them menu bar.
         Okay.  It lists some commands.  Quit lets you, or quit is the
         escape key.  It lists some navigations command, up, down, page
         up, page down, home, end.  It also gives us an additional
         command, space bar to tag a file, and it gives us our version
         number, 1.0427.
         Q.   Well, wasn't the top line of the previous program that you
         had in this machine, also had a similar top line?
         A.   It was similar, yeah.  It -- not quite as much information
         and the home key is now used as a navigation key, instead of to
         unzip.  Otherwise, yeah, it's the same.
         Q.   Now, if you were designing a program from scratch, would
         you use -- what function would you use a home key for?
         A.   As a navigation key, to get to the top of a list.
         Q.   Okay.  So is the use of the home key as a navigation key
         on this particular program, is this unique?
         A.   No.  That's typically what it's used for.
         Q.   All right.  Now, down there where the yellow type is?
         A.   Yes.
         Q.   Which appears to be the third line, but you're able to
         change it.  What is that?
         A.   This, okay, this we call a highlight line here.
                   THE COURT:  It would be what they're referring to in
         the top line as the space bar?
                   THE WITNESS:  The space bar will tag the highlit
         file.
                   THE COURT:  That's what you're moving up and down to
         tag a particular file or highlight a particular file.
                   THE WITNESS:  By moving this bar, I'm --
                   THE COURT:  Is that the space bar?
                   THE WITNESS:  This is not the space bar.  I'm --
                   THE COURT:  The space bar is on your keyboard?
                   THE WITNESS:  Yes, Your Honor.
                   THE COURT:  I see.
                   THE WITNESS:  The file that is currently highlit and
         right now under 4 is, has the potential to be tagged.  You can
         tag your currently highlit file.  So we'll space bar.  Okay.
         Now, see this --
                   THE COURT:  There's a white bar that's locked on that
         particular line then.
                   THE WITNESS:  It is emphasized to say, this file is
         tagged for, well, for later action, in this case.
         BY MR. KITCHEN:
         Q.   Now, there are -- you've worked with other programs, have
         you not?
         A.   Yes.
         Q.   That contain lists of various things?
         A.   Yes.
         Q.   And when I say list, I mean everything from a, be it a
         telephone directory to a list of files to a list of items of
         data base?
         A.   I've seen my share of lists.
         Q.   Okay.  Is the, is the feature of being able to tag a
         particular line or tag a particular item, and kind of mark it,
         that sort of thing, is that unique?
         A.   No.
         Q.   Is it typical of programs that involve the use of lists?
         A.   Not every program needs to tag a file, but it's, it's a
         common enough way where you need to mark something to go back,
         yes.
         Q.   All right.  Okay.  In this case --
                   THE COURT:  Sort of a memory device?
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   And now, you also, instead of -- you have this feature of
         moving this bar up and down, what you call the highlight line
         or highlight bar?
         A.   Yes.
         Q.   And is this, is this unique?
         A.   No.
         Q.   Is this -- you've seen this in other programs?
         A.   No.  This -- you use a highlight bar for menus, for some
         text editors.  I've done, you know, a couple different programs
         where I needed a highlight bar and pack line adjusters.  No.
         This is not anything -- this is common enough.
         Q.   Okay.  Would this be something the typical user would
         recognize as a normal way of navigating around?
         A.   I would think so, yes.  Yes.  Sure.  Once you start
         pressing the arrow keys and you see that bar move, you're going
         to know.
         Q.   By the way, do we have tornado on this?
         A.   Let's find out.  No, we do not.  Ought to be right there.
         Well, apparently it didn't make the cut on the latest versions,
         but --
         Q.   In any event, why don't we pick out one of these things
         and see if we can unzip it?
         A.   Okay.  V-Chem, fantastic educational chemistry program.
         Well, let's do that.
         Q.   Now, what does somebody have to do to unzip on this?
         A.   Okay.  On the bottom line press enter to choose
         highlighted file for viewer extract.  So we're going to -- the
         highlighted file is V-Chem.  We're going to press enter, and it
         throws us to -- okay, confirms our file name, V-Chem, enter
         area, and gives us additional commands that we can do.  Let's
         extract, X, extract tags files, question mark.  It asks for a
         confirm.  I will say Y.  Okay.  Then it jumps right into the
         extract.  Okay.  There it is.  Looks like we're -- looks like
         it's extracted.
         Q.   All right.  Now, let me ask you because we just saw a
         little screen go by.  It was just white on black.  And
         basically indicated the computer was doing something.  What was
         it doing?
         A.   It was executing the PK.UNZIP command.
         Q.   Is that any different than what you did manually in the
         previous program?
         A.   No, no.
         Q.   Except that it didn't require you pressing the buttons?
         A.   That's correct.
         Q.   Okay.  And then, let's, how would we start up this
         particular program?
         A.   Okay.  We're going to take a directory here and see what
         we've got, DIR, and we've got a bunch of GL files, GL with an
         extension.  No XE's there.  That's a little unusual.  Let's,
         let's type one.  See if we can get a clue what this is.  We're
         going to type Wagon.GL, if I can spell it correctly.  No, this
         is not a regular, for human consumption file.  We're seeing a
         bunch of trash characters on the screen.
         Q.   You've said trash characters but we see everything from
         happy faces --
         A.   Happy faces.
         Q.   -- to little triangles to equal signs to letters to Greek,
         Greek letters.
                   THE COURT:  To loudspeakers.
         BY MR. KITCHEN:
         Q.   Yes.  Loudspeakers.
         A.   This is not a file that was meant to be read by people.
         Okay.  We've got, I don't know what the deal is here.  Looks
         like we've unzipped it and only, only pulled GL.  Let's -- the
         file could be fine and doing what it wants, but let's get an
         easier example, because this is --
         Q.   Okay.  Let's go back to the list.
         A.   Okay.  I'm going to blow off these files in here right
         now, so next time we extract we'll have a clean directory.
         Okay.  Now, we're going to exit as previously instructed.
         Well, you know, I'll say yes just to redo them.  Press -- okay,
         and it's sending us back.  We're back in the category listing.
         Let's, oh, let's improve our vocabulary.  Word whiz.zip.
         Q.   All right.
         A.   Okay.  So we're going to -- excuse me, enter.  Again, the
         little command screen.  We're going to X, extract.  It asks us
         to confirm.  Y for yes.  There's our PK.UNZIP coming up.  Okay.
         I see it had a whole bunch of GL's in there again, these GL
         files.  They're all G -- what?
                   THE COURT:  Same place.
                   THE WITNESS:  What's the deal?  Okay.  We're going to
         get right back in and see what the story is.  No.  Okay.  We'll
         delete those again.  Okay.  I'm back into the category listing
         file.  I want to -- I'm going to look around a little bit for
         something.  I've hit two of these things.  Looks like it's the
         same -- alpha zip.  Let's untag that and see if we get any
         different action here.  How to build an IBM -- sure.  Easy to
         use statistical calculator, that looks fun.
         BY MR. KITCHEN:
         Q.   Okay.
         A.   CJ100.zip.  We're going to enter, X, okay.  we got an XE
         that time.  Okay.  Great.  Now we're, we're up to our DOS
         shell.  We've extracted the program, CJ100, and we have an
         executable file.  So I'm going to say CJ100 return.  Oh, it's
         a self-extracting.  CJ100 extracts more of itself.  So B run
         30.
                   THE COURT:  What are these terms, unarcing,
         unsqueezing, unsquashing, uncrunching?
                   THE WITNESS:  These are the PK.ZIP utility, okay,
         these are different shades of ways it's decompressing files.
         The difference between unsqueezing, unsquashing, uncrunching,
         I don't know, there's also exploding and stuff.  I don't know.
         It's taking those compressed files and decompressing them.
         Okay.  Let's look at B, B run 30.  B run 30 from the DOS
         prompt.  Okay.  That must get up for a compiler.
              We'll try the other XE, cat jack.  Cat jack return.  Okay.
         One moment, please.  And it pulls up our statistical
         calculator.  Press any key to continue.  Okay.  And we're into
         a little menu system, and we could play around more at this
         point.  We pulled up an application.
         BY MR. KITCHEN:
         Q.   All right.  So, it's up and running, whatever this
         calculator does?
         A.   Yes.
         Q.   All right.  And we can get out of this and back where we
         were?
         A.   Yes.  Over to quit.  Okay.  And we're now back to the DOS
         prompt.  We type exit.  And we'll delete those.  Okay.  We're
         back to the category listing in the Night, whichever Night
         version it is.
         Q.   Okay.  Now, is there anything unique or special about this
         particular program, as it varies from other programs you're
         acquainted with?
         A.   Only as it, you know, as it varies from other in the same
         family.  Really, really different things, no.  No.
         Q.   Okay.  Let's, let's exit out of here and --
         A.   Okay.
         Q.   And go to one of the latest disks that we have.
         A.   Okay.  We're back to DOS prompt.  I'm going to -- okay.
         I'd like to yank that.  I'm going to yank this set, this set
         Night thing.  This was set by the program and I don't want to
         clutter the environment.
                   MR. OSTROWSKI:  Can we go off the record?  This is,
         it sounded like preliminary stuff, Your Honor.  I just, perhaps
         it shouldn't be on the record until Mr. Kitchen has --
                   THE COURT:  In other words, think to yourself and not
         out loud.
                   THE WITNESS:  Sorry.
                   THE COURT:  They'll make a good witness out of you
         yet, getting you away from uh-huhs and thinking out loud.
                   THE WITNESS:  Yes, Your Honor.   Are these write
         protect?
                   MR. OSTROWSKI:  I notice the tape is still running.
         I was also trying to save blank spaces on the record, Your
         Honor.
                   THE COURT:  We got all, we've got all the tape we
         need.
                   THE WITNESS:  These are write protected.  I got to
         un-write -- I'm going to un-write protect these.  I don't know
         if I can do a *.* here but we're going to find out.  Yes.
         Okay.  Yeah.  We're ready to go.
         BY MR. KITCHEN:
         Q.   Okay.  I'd like you to -- let's try Plaintiff's Exhibit
         number 4.  This is one, also says Night Owl's at the top, and
         says that it's PDSI-003-1, and has a Folio trademark on it.
         A.   Going to D drive, look for executable files.  Okay.  We've
         got C.A.R.R.S. and PK.UNZIP, XE C.A.R.R.S. would be the one
         we'd want.
         Q.   All right.
         A.   So C.A.R.R.S., return from the D route.  Okay.  And it
         pulls up to, looked like a copyright screen went by there.  I
         didn't, didn't read it.
         Q.   Do you remember what the main word was on that copyright
         screen?
         A.   Folio.
         Q.   Folio?
         A.   Is the big display.
         Q.   Okay.  Are you personally acquainted with Folio at all?
         A.   No, I'm not.
         Q.   All right.  Okay.  Now, what screen are we looking at?
         A.   Okay.  This is a, any, just about any screen I get to in
         the front looks like, looks like a main menu screen.   This is
         a little bit different.  We've got a pop-up box, pop-up box in
         the middle, giving us some informa -- product support and
         pricing information.  Excuse me.  Okay.  We've got a command
         bar on the top, a few commands there.  Some information,
         another command bar on the bottom to explain some of our
         commands.  And it looks like right now we can, we're just, we
         can -- we're inside this little window that tells us about
         prices and how they register.  Let's, okay, let's -- it says
         enter to open new view or to follow link.  No.  We'll escape.
         Escape back.  Oh, that kicks me out.  Okay.  So from the D
         prompt again, C.A.R.R.S.  Okay.  Folio Corporation.  Yeah.
         Copyrighted Folio Corporation.  I'm going to try, I want to try
         and get to this main menu file searcher options.
         Q.   What does enter do?
         A.   Pardon me?
         Q.   Enter?
         A.   Enter duplicates the same screen.  Wow.  How far will it
         go?
         Q.   That's interesting.
         A.   Okay.  Well, we'll back it out.  Okay.  Excuse me.  One
         too many.
                   THE COURT:  And you only have one R in C.A.R.R.S.  Is
         that intentional?
                   THE WITNESS:  No.  Misspell.  Okay.  So we're back at
         this --
         BY MR. KITCHEN:
         Q.   I notice on the top line there is a --
         A.   Help.
         Q.   -- designation for help?
         A.   Help.  F-1, yeah, let's get some help.  Command, C, how do
         I get to the main menu.  Command summary.  Okay.  Menu.  Quick
         key.  Okay.  Control A.  Let's try that.  File is control B.
         Q.   What did you get when you pressed the help key, which was
         F-1?
         A.   I got a pop-up window of an explanation of some of the
         commands and their corresponding menu item and hot key, or the
         quit key, they're calling it.  I want to get to the -- okay,
         this file search and options is what I'm going to remember.  So
         control B, control A, control F.  So it's going to go B, A, F.
         Okay.  I'm going to get out of this.  Let's say, control B.
         Doesn't seem to get me any action.  Let's go into the help
         screen.  Maybe we can get to it from there.  Control -- because
         we're on the main menu bar now.  Control B.  That's not getting
         it.  Alternate?  No.  Sometimes if you press and hold alternate
         it shows you something.  Press and hold control doesn't get you
         anything.
         Q.   How about out of that help screen again.  Just one of the
         letters?
         A.   Command tutorials.  Okay.  I pressed C before to get
         command.  Manual, M.  Oh, that's going to give us the printed
         manual.  I was thinking of manual control.  Okay.  This is our
         manual.  I'm going to pretend I'm the typical user here and
         just be too lazy to read the manual, so I'm going to try and do
         it from, select a topic of interest, press tab, or shift tab,
         and then enter.  Okay.  So let's try that.  Tab.  No.  Okay.
         I'm going to go to help.  I'm going to go to F-1 and see if I
         can arrow across.  There we go.  We can arrow across once we
         get to help.  Okay.  So search would probably be a good place
         to start on this one because file -- as you scroll across the
         top bar little pull-down windows appear underneath it, and a
         look over the file, it doesn't look likely to what we're
         looking there.  Search is what we want, I'm sure, so we're
         going to say S, and we can search.  Okay.  We can search for
         words to search for.  Okay.  We've high -- we have a pop-up box
         of words, a pop-up box of results and a query.  Let's look for
         games is a popular one.  There ought to -- okay.  So we're
         going to accept that, games, the word bar moved us -- the words
         box moved our highlight bar to games.  So we're going to press
         enter for okay, see what it gives us.  Okay.  I guess this is
         a listing of games.  Again, the -- of games, these must be
         directories.  I think right there 004-A is a directory.  And
         it's --
         Q.   How about them education programs, we still got those?
         A.   Maybe looking in games.  I don't know if it's going to
         give us any --
         Q.   I was thinking over on the right is a, was, seemed to be
         education programs.
         A.   Did you see something?  I didn't see any.  Okay.  Here's,
         okay.  So let's --  oh, it looks like this, let's see if it
         scrolls across right.  Nope.  Let's try this.  We'll put the
         cursor there at the start of this education program.  I'm going
         to say enter, assuming that's going to link us in there.
         Education programs, great.
         Q.   Okay.  Wouldn't have tornado on there, would we?
         A.   Let's find out.  Tornado.zip, and I think that's even the
         same file size, if I remember that.  So this may be the very
         same thing.  Okay.  Let's put the cursor under tornado.zip and
         we'll press enter.  I'm assuming that's going to send us in
         there.  No.  This is -- no, this is the same screen.
         Q.   Okay.  How do we unzip tornado from here?
         A.   Well, okay, enter doesn't do it, so we get help, F-1.
         This may not go real quick, guys.
                   THE COURT:  We're going to take a recess and let you
         play.
              (Recess taken.)
                   MR. KITCHEN:  At this juncture here, we're taking out
         Exhibit 4.  I'm going to put in Exhibit 3, Plaintiff's Exhibit
         3, which is PDSI-003.
                   THE COURT:  That has not been used earlier?
                   MR. KITCHEN:  Right.  It's essentially the same as
         Exhibit 4.  It lacks the trademark.
                   THE WITNESS:  Did you want to say with this version
         then?
                   MR. KITCHEN:  Yeah.  That's fine.
                   THE WITNESS:  Okay.  We're going to have -- I'm still
         going to have to locate, I'm still going to have to do the same
         thing.  I was looking for -- apparently this doesn't have Q
         filer either, this other -- I can rename PK.UNZIP to Q filer.
         No.  PK.UNZIP wants command lines.  Q filer -- go off.
              (Off the record.)
                   MR. KITCHEN:  I guess we should be on the record.  So
         undo any undue confusion.  We are going back to Plaintiff's 4,
         Exhibit 4, which is the one with Folio on it.  And we've made
         a few adjustments of the other programs on the computer so that
         supposedly Folio will be a little bit more useable.  And you're
         going to go into Folio now, or rather -- and to --
                   THE WITNESS:  I'll check it.  Wait a minute.  Are we
         in a shell?  We are in a shell.  Let's get out.
         BY MR. KITCHEN:
         Q.   This opening screen is the one that had Folio on it, of
         course.
                   MR. OSTROWSKI:  I'd like the record to reflect that
         Mr. Swanson was working on the Folio program throughout the
         entire duration of the recess.
                   THE WITNESS:  I just want to make sure I can get in
         here to do this without trouble.  Okay.  This is Norton
         commander, which I also don't use a lot, so I'm going to
         stumble around in this.  Be prepared.
         BY MR. KITCHEN:
         Q.   Could you tell us what you've done so far on this Folio
         and what you're in the process of doing now?
         A.   I have got a, I got up a list of related files and I went
         in and pulled up Norton commander, which is apparently is --
         okay, switched us to the directory with these set of related
         files and in this case on the D drive 002A is the directory.
         And I'm now in the Norton commander package, or in a shell, in
         a DOS shell in the Norton commander package, navigating to
         extract a file.  And I think I just go --
                   MR. OSTROWSKI:  Your Honor, I'm going to object.  Mr.
         Swanson is using some program called Norton commander, which I
         have no idea what it has to do with the lawsuit.
                   THE COURT:  Does it have anything to do with the
         lawsuit, Mr. Kitchen?
                   MR. OSTROWSKI:  It's not like DOS, which is present
         all the time, but --
         BY MR. KITCHEN:
         Q.   Well, could you tell us why you're using Norton commander?
         A.   Norton commander is the extraction utility that we're
         using in this case.  We were -- that's what part of the pause
         was for.  We were looking for Q filer, which allows us to
         decompress some of those files.
                   THE COURT:  Speak into the microphone.
                   THE WITNESS:  We were looking for a copy of Q filer,
         which is normally the package that is used with this Exhibit to
         allow us to decompress.  We didn't have Q filer on the hard
         drive or on the ROM, so we had to make do, and we're using
         Norton commander.  We kind of substitutes it in.
         BY MR. KITCHEN:
         Q.   Well, isn't --
                   MR. OSTROWSKI:  Well, I'm going to object, unless
         there's some evidence that this particular CD ROM is sold with
         Norton commander or that it's understood that all of the users
         of it have Norton commander.  It's irrelevant.
                   MR. KITCHEN:  I can understand this can be subject to
         cross examination, but I don't know how it's going to be
         objectionable as evidence, to find that a particular program
         which this witness has just referred to somehow cannot be
         referred to.  I --
                   MR. OSTROWSKI:  Well, he's not just referring to it.
         He's using it as an extension of his file retrieval system, and
         it's just totally irrelevant to the lawsuit.
                   MR. KITCHEN:  Well, as long as we explain what we're
         doing and why we do it, it would seem to me to be, to cure any
         kind of objection in this regard.
                   THE COURT:  Well, of course, the Court could have an
         objection to a sheer wastage of time.
                   MR. KITCHEN:  Yes.
                   THE WITNESS:  May I speak?
                   MR. KITCHEN:  I would like to ask questions of the
         witness with regard to why he's using Norton commander.
                   THE COURT:  Well, that might be a starting point.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  A necessary part of this file retrieval
         program is going to be to get to some kind of package that will
         let us unzip, decompress files.  Q filer was the original one
         that they were expecting.  We didn't have that, so we needed
         another package that would fill the gap for this necessary
         step.
         BY MR. KITCHEN:
         Q.   Let me ask you this, isn't PK.UNZIP on that disk?
         A.   Yes, it is.  We needed -- yes, it is.  We needed to get a
         shell out.  We needed to run another program which will either
         decompress itself or in this case give us access to something
         that will decompress.  We're taking, we're adding in another
         step here because this is, this is, you know, we don't have the
         original file, but we're getting to it.
         Q.   Okay.
                   THE COURT:  What does, quote, decompress, unquote,
         mean, relative to, quote, unzip, unquote?  Same thing or
         something different?
                   THE WITNESS:  Zip is the same, except it is a brand
         name.  It's identifiable with PK.UNZIP.
                   THE COURT:  Unzipping without the proprietary aspect
         is the same as the other term?
                   THE WITNESS:  Yes.
                   THE COURT:  You're opening something up, is that
         essentially --
                   THE WITNESS:  Yes.  You're, the information is
         contained, is condensed, and whether you use PK.UNZIP, the
         brand name, they're all methods for decompressing that data
         into its original form.
         BY MR. KITCHEN:
         Q.   Have you identified a program that was obtained through
         Folio that's on this CD ROM disk that you want to decompress or
         unzip?
         A.   Yes, I have.  I'm ready to, ready to do such.
         Q.   Okay.
         A.   Let's -- I'm going to unzip right into there.  Okay.  We
         put in the command, the PK.UNZIP command string, and it's, I
         unzipped one on one S power.zip.  Apparently that is
         successful, so I'm going to change to the C Night, the
         destination directory where I sent it.  And we're going to take
         a look to see what's there.  Okay.  We have two, SWC XE, looks
         like the one to use.  Oh, we fired it up.  Oh, this is a --
         we're getting a nifty game screen, looks like here.
         Q.   There's a rotating set of about three screens, one of
         which has a large title in it with the word Space War, which
         goes through a little animation and breaks up into chunks and
         comes back together again.  And apparently from this you play
         a game, is that --
         A.   If you could stop these screens scrolling long enough, you
         could probably play.  Okay.  We've fired up an application from
         Folio.
         Q.   Let's, let's go back to Folio, if we can.
         A.   Okay.  Okay.  We're back in Folio.
         Q.   Now, let me ask you something, because we're looking at
         Folio and we're looking at essentially a list of files on the
         screen now, right?
         A.   Yes.
         Q.   Why was it necessary to use Norton commander?  Can't we
         just shell out, as the term is, from here, and do our PK.UNZIP
         bit?
         A.   Could be.  I'm not as familiar with this package, and I
         chose to just take the most obvious route.
         Q.   Okay.  Obviously somebody may not have Norton commander
         when they purchase this, and so they may not have that feature
         for shelling out.  Can we look at the little file menu at the,
         to the pull down menu under file, and see if that has an option
         for shelling out?
         A.   There is --
         Q.   By hitting F?
         A.   -- alt Z, and there's go to DOS.  So we can shell out
         right from there if we wanted.
         Q.   Okay.  And PK.UNZIP is in fact on the CD ROM that's in
         there, right?
         A.   Yes.
         Q.   Okay.  So we could run PK.UNZIP right now and unzip one of
         those --
         A.   We could get the job done from this DOS shell, yes.
         Q.   Okay.  Okay.  Let's go back in there and you can exit that
         particular thing.  And this is a -- the reason for putting this
         in there was for comparison purposes, because we know that
         Folio is neither a product that was written with the help of
         either the plaintiff or defendant in this case.  It's a
         completely independent program.  Would you make some -- could
         you give us some observations, as a user and as a programmer,
         between the use of Folio in this capacity with the use of the
         other programs that we looked at?
         A.   It looks like the application is a little bit different.
         In looking through the menus, they emphasize the info base
         more, where you can pull out a word here and compare it with
         words over here to get related information.  The screens were
         a little bit different.  The --
                   MR. OSTROWSKI:  Your Honor, I object.  There's been
         two prior programs put on the screen, and I don't know which,
         I don't think anybody knows which programs he's comparing.
                   MR. KITCHEN:  Well, I am asking him to compare it
         with the two prior programs, a category of programs --
                   THE COURT:  The two prior programs.
                   MR. KITCHEN:  That's right.
                   THE COURT:  You know, he had Plaintiff's Exhibit 3
         down there briefly after we resumed.  Prior to that he had 4
         and 5.
                   MR. KITCHEN:  Right.
                   THE COURT:  I don't know what you're talking about.
                   MR. KITCHEN:  Well, actually I was referring to
         Exhibit 2 and Exhibit 5 which were two programs --
                   THE COURT:  Those are the first two we used today.
                   MR. KITCHEN:  That's right.  And I'm asking for a
         general comparison between Folio and those two programs as a
         general category rather than those two specific programs
         individually.  I'm asking for the distinctions of Folio, as
         compared with the other two programs.
                   MR. OSTROWSKI:  I just think it's a meaningless
         question, but I'll withdraw the objection.
         BY MR. KITCHEN:
         Q.   Yes.
         A.   The commands are different, the look is different.  The
         purpose is a little different.  Well, yeah, the purpose is
         different.  This is significantly different.  There's --
         Q.   Okay.  Why don't we exit out of that, and --
         A.   Okay.  We're at the DOS prompt.
         Q.   Let's try Exhibit, Plaintiff's Exhibit 7 now, which is
         PDSI-004-1.
         A.   Okay.  I'm looking for executables on the ROM, and we have
         Night and PK.UNZIP.  I'm going to go over, I'm going to make
         sure that my hard drive is cleaned up so it's just like we're
         installing this fresh.
         Q.   Okay.
         A.   Okay.  This is -- all our old stuff is cleared out.  So
         for my ROM I'm going to type Night return.  Okay.  It says,
         environment not set to Night area.  Now, that's going to kick
         us into an installation procedure.  The Night, we're going to
         install, we're going to determine name of the Night default
         area, the directory.  I'll take the defaults here where I can.
         We're going to put it in C Night.  Our ROM drive is D.  We'll
         keep our dir files in D\text.  We have a color monitor and I
         think I'm going to take the default there, which is list.
         Reviews the information to see if it's okay.  Yes, it's okay.
         Yes, I'm going to update the auto exec.  We're going to boot
         from C drive.  Okay.  And we've been kicked out to DOS.  It
         says type install to continue.  Install, return, sets us up.
         And there's our main screen.
         Q.   Okay.  Now, I'd like you to compare this particular main
         screen with the main screen in Exhibits 2 and Exhibit 5 that
         were previously shown?
         A.   Okay.  This screen is more similar.  It's similar to
         either one of them.  We've got a list of categories of files.
                   THE COURT:  You mean there's no difference?  Not
         different?
                   THE WITNESS:  The differences are small, smaller than
         they were between this and Folio.
                   THE COURT:  Quite like 2 and 5?
                   THE WITNESS:  Yes.  It's -- this screen is more
         similar to 5 than it is to 2 because 2 didn't have, it just had
         your list and said, okay, you choose a number.  Only options it
         gave you five, it gave us some commands along the top and the
         bottom.  I think it gave us the search.  It gave us the inner
         number.  I don't remember what else 5 gave us.  It told us how
         to escape.  Yes, escape.  Told us how to get out.  We've got a
         little bit more information on this screen.  Again, we're --
         they reference PK.ZIP.  Similar.
         BY MR. KITCHEN:
         Q.   Let's -- can we see what copyright notice there is on
         this?
         A.   Okay.  We're going to quit and come back in.  Excuse me.
         Q.   Apparently we do not have a copyright notice on the
         opening screen in this particular one?
         A.   Okay.  We have one on the -- we have one on the closing.
         I just got out, copyrighted 1991 by Night Owl CD ROM Publisher.
         All rights reserved.
         Q.   Okay.
         A.   When we fire it up again, we may have an opening -- now
         that we've installed, you know, maybe we'll see a copyright
         here.  I don't know.  So Night return, no.  If there was a
         copyright screen, it's gone too quick to see.
         Q.   Okay.  Let's try and just go into one of these.  Maybe
         pick education or something and see if we can find --
         A.   Okay.  Education and helps, 8.  And it pulls up a category
         listing which is substantially similar to, what was it, the
         first Plaintiff's Exhibit, not 2 but 4 --
         Q.   But 5.
         A.   -- 5, okay.  Yeah.  This is similar to 5.  We've got,
         okay, our command bar moved more to the bottom.  We've got
         informational stuff along the top.  We've got a highlight bar,
         similar coloring scheme.  Home, yeah, the home works like a
         navigation key here.  We'll look for tornado, which is there.
         Q.   All right.
         A.   Okay.  We've moved the highlight bar to tornado.  I'm
         going to try and enter, and it gets us again to, okay, we have
         a little pop-up box referencing, you know, confirming our
         choice of file and our directory, and giving us further extract
         commands.  The extract command is what we're going to want
         again.  X.  Okay.  And it looks, PK.UNZIP command executes.
         And it gets us to a, a work area.  Instead of kicking us out to
         DOS prompt here, it puts us in a little screen within the Night
         Owl program and shows us the resulting files from our unzip.
         Q.   Now, how did that differ from the, Plaintiff's Exhibit 5?
         A.   That kicks you out to DOS and you look at the files using
         DOS and examine them using DOS.  Here you're still within the
         Night Owl program.  The screen is a Night Owl screen.  You
         know, you have these nice arrow keys to play around with.
         Q.   Is this more convenient?
                   THE COURT:  Is that a difference of any substance?
                   THE WITNESS:  It's nicer, yeah.  It's --
                   THE COURT:  No substance.
                   THE WITNESS:  Substance.
                   THE COURT:  Well, you said nicer.
                   THE WITNESS:  Yes.  This is nicer.
                   THE COURT:  All right.
                   THE WITNESS:  I've saved myself a group of keystrokes
         and I got a nicer look, too.
                   THE COURT:  Easier to operate, easier to get through?
                   THE WITNESS:  Yes, sir.
                   THE COURT:  Substantially better?
                   THE WITNESS:  Yes.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   And to be able to utilize this particular feature, does
         one need to be acquainted with DOS commands?
         A.   No.
         Q.   Can we start tornado from here?
         A.   Let's try it.  Okay.  I'm going to move the highlight bar
         to tornado.XE and press enter.  Okay.  Asks me to confirm and
         I will say yes, and there's tornado, the same screen we had
         before.
         Q.   Well, for the record, we'll say this is a thing that says
         tornado alley at the top and it's that larger type with that
         picture of the United States and those same kind of weather map
         symbols.  In fact, it looks identical to the screen we, when we
         brought up tornado before, when we were looking at Exhibit 2,
         correct?
         A.   Yes.
         Q.   Okay.  Why don't you go back out of there and see if we
         can get back into the --
         A.   Okay.  We'll escape out.  Okay.  Press any key to return
         to Night, and we're back into the work area where we left off.
         Q.   Okay.  And we can go ahead and exit that, that particular
         program.
         A.   Escape.  We'll choose to delete the files.  Yes.  Okay.
         We're back to the little box that lets us do options with
         tornado.  We're done with tornado.  We'll get out of that.  Q,
         quit.  We're back to our category listing with tornado
         highlighted.
         Q.   Now, on this particular version that's in there, and this
         particular Exhibit, which is Plaintiff's Exhibit 7, this one
         did not involve using DOS at all, did it?
         A.   Not from the user's point of view, no.
         Q.   Okay.  Is that a, is that a plus?
         A.   Yes.  It's nicer.  If you're DOS dumb, you don't have to
         worry.  It removes that complexity from you, and less
         keystrokes.
         Q.   Okay.
         A.   Prettier.
         Q.   Let's kind of, we can exit out of here and maybe clean
         that up, whatever you have to do, because we'll put in, I think
         one more.
         A.   Okay.  Exit out to DOS.
         Q.   What I want to give you is Plaintiff's Exhibit 36, which
         has the Night Owl title on it.  It says copyrighted 1993.  And
         it also has a designation --
                   THE COURT:  36 is a new Exhibit?
                   MR. KITCHEN:  Well, it's been previously --
                   THE COURT:  Hasn't been used before.
                   MR. KITCHEN:  Right.  It's been previously -- oh,
         it's never been identified, in other words?
                   THE COURT:  Not to my knowledge.
                   MR. KITCHEN:  Okay.  It has at least on the front of
         it NOPV-9 on it, so --
                   THE COURT:  NOP, what?
                   MR. KITCHEN:  NOPV-9.
                   THE WITNESS:  Okay.  And we have a variety of
         unzipping of decompression files, and Night again is the one
         we're interested in.  That's our mainline.  So Night, return
         from the DOS prompt.
                   MR. OSTROWSKI:  Your Honor, this seems to be a brand
         new Exhibit and I'm concerned about, you know, the
         authentication hasn't really been identified as to what it has
         to do with the lawsuit.
                   MR. KITCHEN:   That's correct, Your Honor.  I would,
         I would like  --  Mr. Graham  would be able to, to identify
         that as the latest version.  Now, to be specific, Your Honor,
         this --
                   THE COURT:  This is his, quote, latest version?
                   MR. KITCHEN:  Well, actually there is a 10, a version
         10 out, which has not even been identified, but --
                   THE COURT:  Well, when, what time period does 36
         occupy?
                   MR. KITCHEN:  That would occupy this year.  It's a
         copyright 1993 one.
                   THE COURT:  What's it have to do with the lawsuit?
                   MR. KITCHEN:  Well, from our standpoint, it does not,
         and if that is the objection being raised by Mr. Ostrowski,
         then I will, I will stop right here and not go further with
         this Exhibit.
              However, it's been Mr. Ostrowski's -- it's been
         defendant's position right along that virtually any version
         that Mr. Graham has published, the plaintiff has published, has
         been not only subject to discovery but has been essentially
         subjected to the accusation that it is infringing on what Mr.,
         the defendant believes is his, is his --
                   THE COURT:  So here we are post discovery, so we're
         not worried about that aspect.  We're only worried about
         whether or not it's infringing.  Now, you're saying that Mr.
         James is, has thrown in or is contemplating throwing in a claim
         that this is part of the progeny of what was his?
                   MR. KITCHEN:  Yes, although the objection raises,
         raises that question, and frankly, what I want to do is, I want
         to put in whatever program is subject to the defendant's
         accusation that the retrieval system on it is infringing.  And
         if he says that this is not a problem with, with version 9
         here, or Exhibit 36, then fine, I won't put it in.
                   THE COURT:  Well, I suppose Mr. Ostrowski's problem
         is, he and his client really don't know at this juncture, is
         that right, Mr. Ostrowski?
                   MR. OSTROWSKI:  Yes.  I do have a problem with that.
         It hasn't been the subject of discovery.  I don't have a -- I
         don't know what --
                   THE COURT:  Therefore, it's, quote, unknown to you
         and your client, unquote?
                   MR. OSTROWSKI:  Yeah.  I'd certainly, depending on
         the results of this action, I'd certainly reserve my rights to
         start another action with respect to this program, but I'm
         somewhat handicapped  at this point.   I don't know exactly
         when the trial's going  to end.  It could end this week, for
         all I know.  And I'm not  really prepared to defend against
         this -- against the notion that this particular program is not
         similar.
                   MR. KITCHEN:  Well, I'm trying to make the best use
         of my, my expert witness.  To be perfectly honest, Your Honor,
         there is nothing to prevent Mr. Graham himself, when he retakes
         the stand and testifies, that he couldn't sit down here and
         fire up his own program and make it operate.
              However, I would not -- he would, of course, then lack the
         supposed qualifications, or at least would raise -- we'd have
         objections to him being qualified to say, well, what are the
         similarities, what are the differences.  And for that I would
         need the expert.  You know --
                   THE COURT:  We can't go on ad infinitum though to the
         grandchildren and great grandchildren and so forth.
                   MR. KITCHEN:  Well, unfortunately though, we don't
         seem to have a cutoff, at least from defendant's standpoint.
         He hasn't at any point said, well, I'm not, I'm not accusing
         you of infringement beyond X date or X version.
                   MR. OSTROWSKI:  Well, I have a complaint,
         counterclaim.  I can't remember the exact date.
                   THE COURT:  It seems to me this, if I can interrupt,
         Mr. Ostrowski.
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE COURT:  That if I determine that Mr. James is
         correct as to his rights in what Mr. Graham has been using, and
         I hold for Mr. James, and Mr. Graham thereafter were to use
         something like Plaintiff's Exhibit 36, you on behalf of Mr.
         James would say, hey, we decided that that belongs to us and
         not you.
                   MR. OSTROWSKI:  Yes.
                   THE COURT:  That would be a claim down the line.
                   MR. OSTROWSKI:  And I'm --
                   THE COURT:  Not a lawsuit, but a claim down the line.
                   MR. OSTROWSKI:  Yes, Your Honor, and I'm concerned,
         quite frankly, about collateral estoppel.  I don't want to
         have, I don't want Mr. Kitchen to claim in the future that I
         had an opportunity to litigate with respect to these very
         recent programs that I haven't seen and haven't really had an
         opportunity to have my expert review.  That's my concern.
                   THE COURT:  I think that's a salutary position.
                   MR. KITCHEN:  Well, if it is, I would like to at
         least define then where is the, where is the cutoff line.
         Where, how late has defendant been able to go.
                   THE COURT:  Well, but your point, Mr. Kitchen, is
         that this spins off the matter that's in issue in the case, and
         you don't know how this is a development or refinement, a nicer
         and prettier and easier situation, and is Mr. James going to
         take a point that this adding niceness and prettiness stops his
         protectable right.  I don't think he is.  I think he, basically
         he's claiming the core product here, and anything that develops
         from that, I would assume, if he's successful as to the core
         product, he's going to claim the protection against the
         progeny.
                   MR. OSTROWSKI:  I think I can clear it up a little
         bit, as far as I'm obviously going to make a motion to amend
         the proof at a certain point.  I have Plaintiff's Exhibit 21 in
         front of me on paper.  I've had a copy of this.  My experts had
         a copy of it for enough time to look it over, certainly.
         There's been testimony about Plaintiff's 21.  I recently -- oh,
         I shouldn't say recently, I have received a copy of Plaintiff's
         21 on micro floppy with -- in other words, in computer form.
         I've given that to --
                   THE COURT:  Yeah.  Plaintiff 21 correlates with
         Plaintiff 35.
                   MR. OSTROWSKI:  Yes, Your Honor, and I think that
         that would be the -- that would be the natural breaking off
         point.  That's the latest program that we have had advance
         notice of and an opportunity to litigate.  Certainly we're
         claiming --
                   THE COURT:  That was also 1993.
                   MR. OSTROWSKI:  We're certainly -- yes, Your Honor.
         We're certainly claiming, and there is already evidence in the
         case, that Plaintiff's 21 shares similarities with the earlier
         programs, but we're not prepared to go at this point any later
         than that, and certainly would wait for the Court's decision.
         If it was in our favor, obviously we'll be on the ball and
         looking at later versions.
                   MR. KITCHEN:  So for the sake of this trial, we'll go
         as far as essentially the version that was put in as
         Plaintiff's 35.  And I believe that particular Exhibit is in
         defendant's possession right now.  If we --
                   MR. OSTROWSKI:  Well, yeah.  I had given it back to
         you but --
                   MR. KITCHEN:  Oh, I'm sorry.  So if we could find
         Plaintiff's 35, I'd like to put that in the machine and go with
         that, because that's obviously relevant.
                   MR. OSTROWSKI:  Well, actually Plaintiff's 35 --
                   THE COURT:  Neither 21 nor 35 is in evidence.
                   MR. KITCHEN:  Well, no, but as long as we have -- and
         it can be identified.  In other words, Mr. Graham can tell us
         when it was developed, et cetera, but --
                   THE COURT:  These others we've been dealing with
         through Mr. Swanson are all in evidence, Plaintiff's 7,
         Plaintiff 5, Plaintiff 4, and so forth.
                   MR. KITCHEN:  Well, as a matter of fact, my
         understanding, quite a few of these Exhibits although have been
         identified have not been necessarily placed in evidence.  And
         my -- well, my concern though is at least overcoming the
         objection of relevancy.  And if the objection of relevant --
                   THE COURT:  Well, let me just interrupt that.  Now,
         do you, Mr. Ostrowski, have objection to placing Plaintiff 21
         and Plaintiff 35, or one of them, in evidence?
                   MR. OSTROWSKI:  I don't think so, Your Honor, except
         I'm a little confused.  I have, I was given the last time a
         micro floppy, which is different from a CD ROM.
                   THE COURT:  Now you have a hard disk, if I -- I'm not
         an expert on the terminology.
                   MR. OSTROWSKI:  This is called a micro floppy.  This
         has a copy of -- I'm pretty sure there's a copy of the printout
         of Plaintiff's 21 and I --
                   THE COURT:  Is that a disk?  I have this on a disk 3-
         1/2 inches, is that what --
                   MR. KITCHEN:  Yes.
                   MR. OSTROWSKI:  Yes.  And, yeah, I have no objection
         to these going in, and I take it there's also a CD ROM.
         Perhaps we could identify the CD ROM that goes along with it.
                   MR. KITCHEN:  Well, I believe, Your Honor, that there
         was an issue that came up when these were offered into
         evidence, and that is the fact that they contained source code
         and there was an objection on my part to the extent that
         placing them in evidence would expose them to being seen by
         others because this is proprietary information and was subject
         to a, an agreement or stipulation regarding confidentiality.
                   THE COURT:  Well, you can always protect those
         rights.
                   MR. KITCHEN:  Okay.  As long as my client's rights
         are protected with respect to the information.
                   THE COURT:  You and Mr. Ostrowski make some agreement
         as to it and that protects it.
                   MR. KITCHEN:  All right.  Then, if placing them in
         evidence will not jeopardize the secrecy, then I have no
         objection to them being placed in evidence.
                   THE COURT:  Yeah.  I have some notation as to 35,
         that is was used or ran, or run rather, by Mr. Swanson in the
         computer.
                   MR. KITCHEN:  Yes.  I believe it, I believe it was.
                   MR. OSTROWSKI:  The micro floppy, not the CD ROM.
                   THE COURT:  I don't know, the 3-1/2 disks, 3-1/2 inch
         disks is what I have.
                   MR. OSTROWSKI:  That's it.
                   THE WITNESS:  Let's see if there's something on there
         that can be run.
         BY MR. KITCHEN:
         Q.   Okay.  For the purpose of the record, Mr. Swanson, the
         witness, has just put Exhibit 35, which is a 3-1/2 inch floppy
         disk, into the computer.
                   THE COURT:  It's a floppy disk, is that right?
                   MR. KITCHEN:  Yes, sir.
                   THE WITNESS:  We're getting a data error.  This disk
         may have been trashed.  This disk is not going to go.  This --
                   MR. KITCHEN:  Well, apparently the computer is not
         reading disk drive B.
                   THE WITNESS:  This is a floppy problem.
                   MR. KITCHEN:  Apparently the disk, which is Exhibit
         35, is simply not reading on the --
                   THE COURT:  Difference of machines?
                   MR. KITCHEN:  Right.  Your 3-1/2 is B.
                   THE WITNESS:  Sometimes diskettes are subject to
         failure.  I think maybe we just caught a failure.
                   THE COURT:  Well, I just know we just started today,
         we talked about the substituted computer.  I was wondering if
         that was a facet of the problem.
                   MR. KITCHEN:  All right.  My client indicates to me,
         Mr. Graham indicates to me, Your Honor, that the particular CD
         ROM, Exhibit 36, contains the same program that was on Exhibit
         35, the floppy, and he's also been, had the source code printed
         out, and would be Exhibit 21, which of course is now in
         evidence.  So essentially --
                   THE COURT:  Well, you say now in evidence.  We are
         just on the threshold of that.
                   MR. KITCHEN:  Yes.  That we were on the threshold of
         putting into evidence, and has already been discussed kind of
         extensively, and as a matter of fact, in one version or
         another, was previously run by Mr. Swanson.  And I'm not sure
         that it wasn't run from the, from the hard disk itself, the
         last time we were here.
                   THE COURT:  Well, I say, I didn't have the word
         floppy associated with disk as I mentioned, noted what the
         Exhibit was.  I just had disk (3-1/2 inches) for Plaintiff 21.
                   MR. OSTROWSKI:  That's a micro floppy.
                   MR. KITCHEN:  Yes, sir.  That would be a floppy.
                   THE COURT:  All right.
                   MR. OSTROWSKI:  I have no objection --
                   THE COURT:  All right.
                   MR. OSTROWSKI:  -- to them being received into
         evidence.  And at some point, I mean, I will make a motion to
         amend my counterclaim, and up to that point, and I don't know
         the proper form to put it in, but hopefully we can agree that
         that will be the limit of the lawsuit, given the fact that it
         cannot go on forever and ever and ever and I have not been
         given discovery sufficient to litigate any versions beyond that
         version, which is the same program on three different formats.
                   MR. KITCHEN:  Okay.  But --
                   THE COURT:  So, now you say it is in evidence.  Does
         that mean they, 21 and 35, are in evidence?
                   MR. OSTROWSKI:  I stipulate to them being, I will
         consent to them being admitted into evidence.  They have --
                   THE COURT:  Yeah.  Subject to your --
                   MR. OSTROWSKI:  -- not been.
                   MR. KITCHEN:  And I have no objection, other than the
         reservation of the continued confidentiality pursuant to
         previous agreement.
                   THE COURT:  All right.  Plaintiff 21, Plaintiff 35
         are received.
              (Plaintiff Exhibits 21 and 35 for identification were
         received in evidence.)
                   MR. KITCHEN:   And  at this time then, I would ask
         Mr. Swanson again to put Exhibit 36 on,  and it will be, it is
         my understanding that Exhibit 36 does contain the retrieval
         system that was also contained in Exhibits 35 and Exhibit 21,
         in somewhat different forms.  And so that's why this is
         relevant.
                   THE COURT:  We'll have to swear you as a witness
         pretty soon.
                   MR. KITCHEN:  Well, I understand, but I believe that
         that particular bit of evidence would be, would be coming from
         Mr. Graham, who technically, whose testimony has simply been
         interrupted for the sake of Mr. Swanson.  Okay.
         BY MR. KITCHEN:
         Q.   Could you fire up Night on CD ROM using the Exhibit 36?
         A.   Okay.  From the D drive, type in Night, return.  And we go
         to an installation screen.  I will install it.  I.  Color
         monitor, yes.  We're going to take the defaults here.  Default
         Night directory C Night.  Our ROM drive is D.  Picture viewer,
         we're going to say none.  We accept the above changes.  Yes.
         Okay.  And it's copying files under the hard drive.  We are not
         going to, we're not worried about performance here, so I'm not
         going to take the time to copy those files.  Location of the
         DIR files, D text.
         Q.   Now, you skipped over something you said you weren't going
         to bother to copy.  What were those?
         A.   Okay.  Do you want to put the, some of the text files off
         of the CD ROM onto the hard drive.  The advantage of this is
         that you can read from a hard drive faster, so when you're
         looking through the program you'll get them up faster.  The
         disadvantage of this is that they take up more space on your
         hard drive, so you may not have as much room leftover.
         Q.   Okay.
         A.   Now, we had too many parameters on the DIR text files.  So
         we're going to, okay, we're going to press on here.  Make sure
         we got our --
         Q.   Okay.  What are, where are you at now?
         A.   We're fine.  Okay.  I'm at the main screen.  This -- do
         you want me to continue with the --
         Q.   Well, I'd like you to describe the main screen in terms of
         its -- and how does it compare with other screens that we've
         seen so far?  And by the way, for the purposes of this question
         and any other questions, I'd like you to completely exclude
         Folio from this as not kind of being the same category, but
         just compared with the other programs we have.
         A.   Yes.  This pops up a main menu.  We see category names
         only.  We see no category numbers.  We have a information bar.
         There was no copyright screen when we popped up, at least not
         in the installation.  We have Night Owl CD ROM file access
         pools at the top of version number.  We have our commands at
         the bottom.  Format of the commands is a little different.
         You're using color instead of angle brackets to offset the hot
         keys.  We do not select a category by number here.  We select
         it by navigating a highlit bar to the desired category.  We'll
         go to education.  And --
         Q.   How many columns on this?
         A.   Three.
         Q.   How many columns were in the previous version?
         A.   Two, I think.
         Q.   Okay.
         A.   Yeah.
         Q.   Go ahead.  How would you --
         A.   Okay.
         Q.   You find one on education, by the way?
         A.   Yes, I did.
         Q.   All right.
         A.   Okay.  We've moved the highlit bar to education, reference
         a command bar, says enter to select.  I enter.  This displays
         a category, category listing similar to the other screens.
         We've got our list of file names, you know, byte size, date, a
         description of them.  We've got a little bit of information
         along the top, what line we're at in this file.  Excuse me.
         Along the bottom.  We've got another command bar telling us
         available commands.  The scrolling is a little bit different on
         this one, too, because our highlight bar only goes halfway down
         the screen before we force the screen to scroll.  You know, the
         highlit bar doesn't go all the way down to the bottom and then,
         you know, it will catch.
         Q.   Why?  Is that a plus?
         A.   This is a personal preference really.  It's nicer, well,
         it's nice because you can look at, if you're scrolling fast or
         a little faster, you get a chance to look at what's coming up
         before you've already scrolled by it.  So you may save a
         keystroke there.
         Q.   This particular program was one you did yourself, right?
         A.   Yes.  I had worked on this.
         Q.   Okay.  All right.  We don't happen to have tornado on
         there, do we?
         A.   We're looking.  Tor -- no, sir, we do not.
         Q.   All right.  Could you pick one other one and see if we
         could --
         A.   Symbol 46.zip does symbolic math.
         Q.   That sounds interesting.
         A.   Sure.  Okay.  Command bar gives us our command.  Enter is
         to select.  We pop up a little window that confirms our file
         name, or selected file name and directory.  In any of these we
         haven't dealt very much with tagged files, which is, which is
         fine.  Okay.  Our command bar changes.  The commands available
         we want to choose from is extract X, okay, so we extract a
         PK.ZIP command execute.  Can't create.  Okay.  No files in the
         work area.  Can't create.  I wonder if I blew off that
         directory.  Okay.  Let's back -- no, we're going to, we can
         just shell out from here, right to DOS.  Okay.  We've got space
         on the drive.  Let's try another one.  PC Learn, fine,
         PCL570.zip.  We're going to enter.
         Q.   Now, let me stop you for a minute because you've put the
         highlight bar on a particular program?
         A.   Yes.
         Q.   You have pressed enter.  And you're given a box, which is
         similar to one of the previous programs, except this box has
         fewer little, it's a smaller box with less information in it,
         correct?
         A.   That's, this box is a little bit different in that, okay,
         this, the box we see pop up, gives us only file, information
         about the file, and our command bar's at the bottom.  And some
         of those prior boxes, at least one of them -- no, there were
         two that we saw earlier today, at least, that contained the
         usable commands within the box.
         Q.   Is there any significant difference in that?
         A.   Looks a little different.  Function, no.
         Q.   Okay.
         A.   Okay.  Let's extract this one.  X.  Warning, can't create.
         Searching.  Can't create.  Okay.  Oh, wait a minute now.
         Remember back in the installation, there was that little
         weirdness in the D text.  Let me go back.  I'm going to
         install.
         Q.   Are you going to exit this whole thing and start over?
         A.   I'm wondering, yeah, if that -- we had a line that looked
         like it was a little long, in the beginning, in, where our text
         files are located.
         Q.   Let's go off the record.
              (Off the record.)
                   MR. OSTROWSKI:  Back on the record.  Mr. Swanson is
         running what Mr. Graham claims to be his program and he's
         having substantial difficulties with it, which are not
         obviously unrelated to the file retrieval program itself.
                   THE COURT:  Well, I don't know.  You've already
         stated the essence of that, namely he's having difficulty with
         the program.
                   MR. OSTROWSKI:  And if I just may put on --
                   THE COURT:  If you want to expand on that --
                   MR. OSTROWSKI:  Yeah.
                   THE COURT:  -- maybe Mr. Kitchen will agree, and
         maybe he will not.
                   MR. OSTROWSKI:  I just --
                   THE COURT:  I think that's a better way to get it on
         the record, if possible.
                   MR. OSTROWSKI:  Yes, Your Honor, and I, let me just
         also say that two or three minutes went by when we were off the
         record, and there was extensive consultation with Mr. --
         between Mr. -- among, excuse me, Mr. Kitchen, Mr. Swanson and
         Mr. Graham, and again, it's not obviously unrelated to the file
         retrieval program itself, and there may, I think there was a
         similar program when Mr. James' machine was being used in
         September, and I believe at that point it was blamed on Mr.
         James' machine, and perhaps it was not.  That's all I wanted to
         say.
                   THE WITNESS:  We're going to run this outside of the
         program.  Okay.  We got that one.  Come on.  What were we
         running?  Let's unzip it from here.  Excuse me.
                   MR. OSTROWSKI:  Let's go off the record.  I'm just
         reserving my right to put --
                   MR. KITCHEN:  Excuse me.  I thought we were off the
         record.
                   THE COURT:  We are off the record.
                   MR. KITCHEN:  Okay.
                   THE COURT:  Well, I don't know.  The record started
         running again.
                   MR. KITCHEN:  Let's go back on the record then.
         BY MR. KITCHEN:
         Q.   Essentially we have been off the record for some minutes
         in which you --
                   THE COURT:  Well, off and on.
         BY MR. KITCHEN:
         Q.   Off and on, I suppose, in which we were in the middle of
         going, using the Night retrieval system to detect something.
         And we, we ran into a problem.  Can you tell us what the
         problem was, as far as you're aware?
                   THE COURT:  Speak into the microphone.
                   THE WITNESS:  Looks like the PK.UNZIP that we had on
         the hard drive, which we were trying to use first, was not the
         most recent version which the ROM expected, so we brought in
         the version it expects it onto the hard drive, where it would
         find it first.  Seems fine.
                   MR. KITCHEN:  Okay.
                   THE COURT:  With your hand you say we brought a
         something in.  You're gesturing of moving something toward the
         machine.  Was that the insertion of the new disk?
                   THE WITNESS:  Yes.  We copied files.
                   THE COURT:  All right.  So you put in what, 35?
                   THE WITNESS:  We're viewing Plaintiff's 36.  What we
         brought in --
                   THE COURT:  Oh, you put 36, which is not in evidence.
                   MR. KITCHEN:  That's right.  That's the one that we
         claim -- or I believe the evidence will show, contains the
         retrieval system which was on Plaintiff's 35 and on, written
         out on 21.
         BY MR. KITCHEN:
         Q.   But in any event, what I'm trying to focus on is, did the
         defect that we run into have anything to do with the CD ROM or
         the retrieval system on it?
         A.   No.  It was -- no, it didn't.
         Q.   It was related to what?  What caused the problem?
         A.   An older version.  An older version of PK.ZIP was in
         there, and --
         Q.   When you say, was in there, was in where?
         A.   Was on the machine hard drive.
         Q.   I see.  It was not on the CD ROM, it was on the machine
         hard drive?
         A.   That's correct.  The one we pulled off the ROM --
         Q.   All right.
         A.   -- fixed it.
         Q.   Now, have you eliminated that defect?
         A.   Yes.
         Q.   Okay.  Now, could we start, or restart, or do whatever
         necessary to get us back into this Plaintiff's Exhibit 36?
         A.   Okay.  We're at the DOS prompt.  I type Night.  We've
         already done an installation, so I'm expecting it.  Okay.
                   THE COURT:  We're on the record or off?
                   MR. KITCHEN:  Yes, we're on the record.
                   THE COURT:  All right.  Go ahead.
                   THE WITNESS:  It skipped over the installation
         screen, because it's detected we're already installed, and
         we're to the main menu.  We've already covered similarities and
         differences from prior versions.  With permission, I'll get us
         back to where we were.  I will go and select the education
         category, pull up the category listing, page down a little bit.
         Now, here's one, Ulysses 11, super tutorial on Tennyson's poem,
         Ulysses.  So we're ready to extract.
                   MR. KITCHEN:  Go for it.
                   THE WITNESS:  I've highlighted it.  Enter.  Our
         command bar changes.  X for extract.  PK.UNZIP, that's
         extracting correctly.  Beeps to let us know.  Again, it doesn't
         drop us to DOS here.  It's dropping us into a work area.
         BY MR. KITCHEN:
         Q.   Is this a new screen?
         A.   This is a screen, a new screen, other than the category
         listing, and I think this is the first time today we've seen
         this work area.  I think, I don't think we saw this on prior
         versions.  Okay.  But we're, we are now viewing a list --
         Q.   Didn't we see that on Exhibit 7, which was on the one --
         A.   Oh, this is --
         Q.   -- you had done?
         A.   Okay.  Did we already do this?
         Q.   Yes.
         A.   Okay.  We've seen it then.  We've seen it on this one.
         Sorry.
         Q.   Okay.
                   THE COURT:  This one is what?
                   MR. KITCHEN:  This one is Exhibit 36.
                   THE COURT:  No, but, he was referring, did we see it
         on --
                   MR. KITCHEN:  Oh, oh, on the other one --
                   THE COURT:  -- Plaintiff's 7.
                   MR. KITCHEN:  -- he was pointing to, 7.
                   THE COURT:  Plaintiff's 7, all right.
                   MR. KITCHEN:  Plaintiff's Exhibit 7.
                   THE WITNESS:  Okay.  We're viewing a list of the
         compressed files that were contained in Ulysses 11 here.
         BY MR. KITCHEN:
         Q.   And they've been uncompressed or unzipped?
         A.   Yes, sir.
         Q.   Can we see --
         A.   They're ready.
         Q.   Can we go ahead and fire up this program and see what it
         does, or how it words?
         A.   Yes, we can.  E, from the work, from the command bar, E
         for execute.  Asks us to confirm.  Execute W teach.  Y for yes.
         Oh, excuse me, I pressed a T.  Okay.  Let's us insert optional
         command line arguments, which I don't know them.  I'm not going
         to try anything optional.  Please use the format TW Teach
         config file.  Okay.  This is something specific to the -- okay.
         UL config.  Okay.  This is something specific to the package.
         This is not a retrieval program because our program -- that
         message.  Okay.  Again.  Execute.  Yes.  And we're going to put
         UL as an optional command line argument.  Okay.  It fires up
         fine.  Celestial Software.   We fired up an application.
         Q.   Now, you said it fires up fine, and we're looking at a new
         screen now that has in large block letters the words, Celestial
         Software presents, and would you hit a  -- now we have a,
         purple columns on a little Roman structure here, and the word
         Ulysses in the middle.  Why don't we hit another button.  And
         now we're getting into something a little more pedestrian, and
         it apparently is just some text material?
         A.   Yes.
         Q.   Okay.  Would you conclude from this that we've been
         successful in being able to fire up the Ulysses program?
         A.   Yes, I would.
         Q.   Okay.  Any -- why don't we back out and go back out to the
         retrieval program itself.
         A.   Okay.  We're back.
         Q.   Okay.  Any differences you'd note between this and
         previous versions?
         A.   There are a larger amounts of commands available.  I
         happen to know because of familiarity with myself, there are
         even other screens available off this that have more commands.
         We didn't have to go out, as compared with versions prior to 7,
         we didn't need to go out to DOS to decompress here, and I think
         in version 7 we select not by number but by command bar, on
         that screen also.  Further commands are available.
         Q.   Okay.
         A.   That's close.  That's about it.
         Q.   All right.  That's -- if I can have one moment here.
                   MR. KITCHEN:  I have no further questions, Your
         Honor.
                   THE COURT:  We can continue now or after lunch.  I'll
         leave it up to you.
                   MR. OSTROWSKI:  I don't have a whole lot of
         questions, so perhaps I should forge ahead.
                   RECROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Now, the -- Mr. Swanson, the problem you just had, you --
         that required a number of minutes of work off the record, you
         attributed to the fact that there had been a, I forgot the name
         of the program, an outdated version of --
         4*----A.  PK.UNZIP.
         Q.   -- PK.UNZIP.  Didn't I see you delete the hard drive at
         some point this morning?  Didn't you type --
         A.   I cleared off a directory in the hard drive.
         Q.   Okay.  You didn't delete the entire hard drive?
         A.   No.
         Q.   Okay.  So where did this PK.UNZIP program come from?
         A.   That would be somewhere else on the hard drive, referenced
         in the path, I think it was in root.  I think it was in the
         root drive there.  On the hard drive is where it came from.  I
         deleted a small portion of the hard drive.
         Q.   Okay.  Now, isn't it true that that error had to do with
         the fact that the program was using an old config file?
         A.   No.  It was using an old PK.UNZIP version, which it found
         first and decided it would use that.
         Q.   Okay.  What is a config file?
         A.   A configuration file.  It tells a program what its
         parameters are, how it's set up.
         Q.   Okay.  Now, you were asked a number of questions, you were
         asked a number of questions about whether programs were
         similar.  Isn't it true that to determine whether programs are
         similar, you have to actually look at the programs themselves?
         A.   No.
                   MR. KITCHEN:  I will object to that, Your Honor,
         unless Mr. Ostrowski can describe what he means by look at the
         program itself.
                   MR. OSTROWSKI:  Well, do --
                   THE COURT:  Well, the witness hasn't indicated, other
         than raising his eyebrows a couple times, that he has any
         questions -- problems with the question.  If he does, of
         course, that's a different problem.
         BY MR. OSTROWSKI:
         Q.   Now, you were looking at -- the questions that you were
         asked about the similarity of different programs were based
         solely on using the programs as a user would use them, isn't
         that correct?
         A.   I thought you were talking -- okay, I thought you were
         talking about looking at the source code.  And you said, look
         at the programs themselves.
         Q.   Well, what is the computer program?
         A.   A computer program is a series of instructions to the
         computer.
         Q.   And the source codes?
         A.   It includes the source codes.
         Q.   Well, that's what it's written in, isn't it?
         A.   That's what it's originally written in.
         Q.   Okay.  And then it's turned into something that none of us
         could possibly read?
         A.   Not without difficulty.
         Q.   So I'm not, I'm not talking about the object code, is that
         the right term?
         A.   That's a good -- yes.
         Q.   Okay.  I'm talking, when I say that to determine whether
         programs are similar you have to look at the program, I meant
         the source codes, and isn't that correct?
         A.   No.
         Q.   Okay.  So you believe that you can compare computer
         program similarity simply based on seeing them as the user sees
         them?
         A.   You can compare some aspects of similarity.  Other aspects
         of similarity, you need to go to the source code for.  It
         depends what you want to find out.
         Q.   Well, isn't it true that every -- are you familiar with
         Word Perfect?
         A.   Yes.
         Q.   Does it have a block function?
         A.   Yes.
         Q.   And what does that do?
         A.   That highlights a group of text, you're like marking a
         contiguous block of text for a later action.
         Q.   And then you could, with that block, let's say it's a
         paragraph, you could delete it?
         A.   Sure.
         Q.   You could move it to the end of the program?
         A.   Sure.  Yes.
         Q.   You could make it all capital letters?
         A.   Yeah, I think you can, yes, yes, I think you can do all
         caps.
         Q.   And if it's all caps, you could make it all small letters,
         whatever those are called?
         A.   Yes.
         Q.   Okay.  And isn't it true that just about every word
         processing program has a block function?
         A.   Most of the ones who are worth something, yeah, they
         should have a block function.
         Q.   Okay.  So you're saying that all word processing programs
         are similar in that they have a block function, so that's --
         A.   Large -- it's certainly common, yeah.
         Q.   That's not original?
         A.   No.
         Q.   And I won't ask you if it's protectable, because that's a
         legal question.  And in fact, isn't it true that taking Word
         Perfect, which seems to be the industry standard now, isn't it
         true that most of the functions in Word Perfect are available,
         and let me rattle some off, they all have, they all show you
         what the screen -- they all give you a screen that you can
         write on, right?
         A.   Yes.
         Q.   And they allow you to print the screen to a printer?
         A.   Yes.
         Q.   They allow you to spell check?
         A.   Yes.
         Q.   They allow you to search for words?
         A.   Yes.
         Q.   Okay.
         A.   You know, these are, there are some packages that may not
         allow all of these, but these are all common.
         Q.   Well, these are the elementary ones.  Okay.  So in your
         opinion all word processing programs in the essentials are the
         same?
         A.   Yes, in the essentials, yeah.
         Q.   Okay.  And therefore not original?
         A.   No.
         Q.   Or creative?
         A.   Well, they're -- you could create --
         Q.   Just as the --
         A.   -- some within the parameters.  The basic stuff, a search,
         no.  Everyone does a search.  If you want to do something wild,
         that's creative.
         Q.   Just, I'm just asking you from the user's perspective
         because that's  how  you've  been testifying today.  They're
         not --
         A.   Most of --
         Q.   -- original or creative?
         A.   Most of the features of those things are not original, no.
         Q.   If -- and if they were, you wouldn't see it because you'd
         have to look at the source codes?
         A.   You could still use those features without looking at the
         source codes.  You could have -- most of the features in a word
         processing package are not going to be, you know, new or too
         different.  You may have some, some quirks in there that is new
         or different, and you would be able to use those without
         looking at the source code.
         Q.   Now, is another major type of program a spreadsheet?
         A.   Yes.
         Q.   Those are all basically the same, aren't they?
         A.   Sure.
         Q.   What are the other major types of programs that are bought
         and sold?
         A.   They're CAD's.
         Q.   What's CAD's?
         A.   Computer aided design, like a, it's like a drawing, a
         draftsman tool for the computer.  DBMS, data base management
         systems of various flavors.
         Q.   Okay.  And those data base management systems, they're all
         basically the same, right?
         A.   They have to be --
         Q.   From the user's perspective?
         A.   No.  Those, those are different.  You're, you've got an
         underlying, in most of them you have an underlying theoretical
         form, but how they present those can be different.
         Q.   Well, but the user, the user doesn't see the underlying
         theoretical form?
         A.   No.  He should -- well, experienced user will know.  A
         novice, hey, you know, you can get by.  I'm not sure what
         you're -- could you restate the question.  I'm sorry.
         Q.   The question is, data base programs are basically the same
         from the user's point of view, from one company to another,
         aren't they?
         A.   No.  I wouldn't say that there's that much similarity.
         There's some differences there.
         Q.   But spreadsheets and word processing, which are two of
         the, well, are similar from the -- to the user's point of view?
         A.   Yeah.  There's more similarity there, yes.
         Q.   Okay.  Now, Plaintiff's Exhibit 2, it's PDSI-002, do you
         recall looking at that today?  Was that the first -- was that
         the one with C.A.R.R.S. on it?
         A.   Yes.
         Q.   Now, that's not a file retrieval system at all, is it?
         A.   Yes, it is.
         Q.   It is?
         A.   Yes.
         Q.   Were you able -- well --
         A.   We pulled up a file from it.  We pulled up tornado.
         Q.   Oh, okay.  Could you throw that in there and see if you
         can pull up tornado?
         A.   Sure.  I'm going to back out of this and I'm going to
         clean up 2.  Okay.  There's Plaintiff 2.  CD ROM's are a little
         slow.   There we go.  Try it again.  Okay.  We're pulling it
         up.  Yep.  We have our main menu on screen.
         Q.   And what category was tornado in?
         A.   8, educational.  8.
         Q.   Okay.  How do you get to 8?
         A.   You punch number 8, the number corresponding to the
         category title.
         Q.   And do you see a list of education programs?
         A.   Yes.
         Q.   And can you find category?
         A.   Tornado.  Okay.  Tornado is the top line.
         Q.   Okay.  What would the next step be?  Would you put the
         cursor on tornado or the home key?
         A.   Use home to unzip.  So home, it should unzip the top line.
         Q.   Now, at this point you're out of the program, is that
         correct?
         A.   We're in a shell.
         Q.   Okay.
         A.   Yes.
         Q.   So that program did not allow you to retrieve the file?
         A.   That's correct.
         Q.   So it's not a file retrieval program at all, is it?
         A.   Yes, it is.
         Q.   Okay.
                   THE COURT:  Even though you can't use it to retrieve
         a program?
                   THE WITNESS:  It gives you, it gives you and provides
         right inside it, this is how you retrieve a file.  So although
         the program itself does not issue the command, it says, this is
         how you do it, and we're giving you everything you need to do
         it.
         BY MR. OSTROWSKI:
         Q.   So I'd accept the capacity to do it within the program?
         A.   It doesn't do it within the program.
         Q.   Okay.  And the Folio program, which I believe was
         Plaintiff's Exhibit 4, PDSI-003-1, that also is not a file
         retrieval program at all, is it?
         A.   No.  Didn't we -- no.  That said, in it it said,
         information data base and file retrieval in there.  It's some
         text in there somewhere.
         Q.   No.  I'm not asking you what, how it describes itself,
         because we all know that people tend to exaggerate their
         qualities and programs do also.
                   THE COURT:  No.  Really?
                   THE WITNESS:  I --
         BY MR. OSTROWSKI:
         Q.   But is it in fact a file retrieval program in the sense
         that you can use that program to retrieve files without the
         assistance of any other program?
         A.   In that specific sense, no, it is not a file retrieval.
         Q.   And in that specific sense, neither is Plaintiff's Exhibit
         2, PDSI-002?
         A.   In that specific sense, it is not.
         Q.   Okay.  Now, Plaintiff's Exhibit 5, if I have the number
         right, is that PDSI-004?
         A.   Yes, sir.
         Q.   That is a file retrieval program, isn't it?
         A.   Yes.
         Q.   You don't have to leave the program to retrieve files?
         A.   That's correct.
         Q.   So, in fact, chronologically, that's the first file
         retrieval program that you looked at today, in that specific
         sense?
         A.   In that sense, yes.
         Q.   Okay.  Now, how much are you being paid for you time in
         preparing and being here in Court today?
                   THE COURT:  I thought we went over that when we
         established he was grossly underpaid, uneducated in the field.
                   MR. OSTROWSKI:  I feel the situation may have been
         changed since the last Court appearance.
                   THE COURT:  I see.  All right.  He may answer.
                   MR. KITCHEN:  Well, I was going to also object on the
         basis that it's outside the scope of redirect.
                   THE COURT:  He may answer.
                   MR. OSTROWSKI:  Well, so was almost everything --
                   THE COURT:  He may answer.
                   THE WITNESS:  I'm, I'm charging a hundred dollars a
         day for my time.
         BY MR. OSTROWSKI:
         Q.   For this particular appearance?
         A.   Yes.
         Q.   And preparing for it?
         A.   Yes.  I -- well, yeah, that's what it's going, that's what
         I'm going to bill at.  I'm going to bill a hundred for this.
         Q.   Did you say a day?
         A.   Yes.
                   MR. OSTROWSKI:  He's still grossly underpaid, Your
         Honor.  I have no further questions.
                   THE COURT:  Anything, Mr. Kitchen?
                   MR. KITCHEN:  Well, Your Honor, that's all I have of
         this witness.  Now, I have, I have another expert witness out
         there, which I guess we would take then after the lunch break.
                   THE COURT:  Does that bother his schedule?  Is he
         from out of town?
                   MR. KITCHEN:  Yes, he is.  But  he was anticipating
         on utilizing the afternoon.  I realize we're still interrupt --
                   THE COURT:  Luncheon time would be a good time to
         talk with him about his upcoming testimony?
                   MR. KITCHEN:  Probably would, yes, sir.  Yes, sir.
                   THE COURT:  All right.  What time do you want to come
         back?
                   MR. KITCHEN:  Whatever the Court wants, 1:00 or 1:30
         or 2:00 or whatever would be appropriate.
                   THE COURT:  Well, I wouldn't go as late as 2:00.
                   MR. KITCHEN:  Okay.
                   THE COURT:  But 1:30?
                   MR. KITCHEN:  1:30 would be fine.
                   MR. OSTROWSKI:  That's fine with me, Your Honor.
                   THE COURT:  All right.  1:30.
                   MR. KITCHEN:  Okay.
                   MR. OSTROWSKI:  Your Honor, can I just clarify what
         our schedule is this week because I, I now have to be concerned
         with my witnesses.
                   THE COURT:  What you think you need by way of
         additional time, how much longer is this going to go on?
                   MR. KITCHEN:  Well, I would hopefully have Professor
         Brown on for not too long a time.
                   THE COURT:  Next one?
                   MR. KITCHEN:  And I would hope to have my expert on
         for fairly -- and finish up with him and get back to Mr., Mr.
         Graham.
                   THE COURT:  How long does it take to finish up with
         your experts?
                   MR. KITCHEN:  Well, I would expect that we would be
         through with our case by the end of tomorrow morning, Your
         Honor.
                   MR. OSTROWSKI:  I would think if, that I would need
         about two days.  I have one long witness, Mr. James, and I have
         a number of shorter witnesses.
                   THE COURT:  All right.  Well, I had blocked off
         tomorrow and I do have Thursday available, and I do have a good
         part of Friday morning, although I'd like to stay away from
         that as much as possible.  But I certainly have tomorrow and I
         certainly have Thursday.
                   MR. OSTROWSKI:  I, we may be able to finish this
         week.  I'm not sure.  But of course, that assumes everything
         goes well.
                   THE COURT:  All right.
                   MR. OSTROWSKI:  Can I just ask a --
                   THE COURT:  Well, once we get into next week, then I
         get tied up with other things.
                   MR. OSTROWSKI:  Can I just ask you a procedural
         question?  At the end of the close of the evidence, do you want
         us to submit briefs and reserve decision, or should we be
         prepared with some --
                   THE COURT:  Completely up to you.  I leave it up to
         you as to whether or not you're going to order a transcript.
         If you order a transcript, then usually there should be a
         briefing, but I think just for your own good in focusing your
         arguments.  And then I'd listen to oral argument.
              If you wanted to do it without the briefing, we could.  If
         you want to do it without the transcript, you can.  It's
         completely up to you.  With or without a transcript, we have a
         period then, if briefs, a certain time to put in your briefs
         and exchange them, a shorter time to exchange your answers to
         those, and a time to come in and argue.
                   MR. OSTROWSKI:  Okay.
                   THE COURT:  That would be my normalcy.  I leave it
         completely up to you as to whether or not you have a
         transcript.
                   MR. KITCHEN:  I don't know about the transcript
         because that's going to be lengthy and expensive.
                   THE COURT:  No, I know.  I leave it up to you, leave
         it up to you completely.
                   MR. KITCHEN:  I will say though that I, I don't know
         that we, that the Court -- well, I think it would be a big task
         for the Court to take this on without briefing because I think
         there are issues not only of --
                   THE COURT:  Well, it certainly helps me to have a
         focused argument, and I think briefing helps you focus your
         argument.
                   MR. OSTROWSKI:  I'm in favor of that myself.
                   MR. KITCHEN:  Right.
                   THE COURT:  Yeah.  All right.
                   MR. KITCHEN:  Because there's a multiplicity of
         issues.  Right.
                   THE COURT:  That would be the normalcy then.  All
         right.  Then we have Thursday and at this point I'll try to
         keep as much of Friday morning available.  I have one small
         thing, a 16B conference, which is usually a 15 minute matter,
         at 9:30.  All right.  1:30.
              (Lunch recess taken.)
                   MR. KITCHEN:  I'll call Stephen Brown.
              (STEPHEN J. BROWN, Plaintiff's Witness, Sworn)
                   THE COURT:  You are?
                   THE WITNESS:  Stephen Brown.
                   THE COURT:  Is that a P-H or a V?
                   THE WITNESS:  Very good, P-H.
                   THE COURT:  Middle initial?
                   THE WITNESS:  James.
                   THE COURT:  And Brown without an E.
                   THE WITNESS:  Correct.
                   THE COURT:  Where do you live?
                   THE WITNESS:  I live in Erie, Pennsylvania.  The
         street address is 1501 Pasadena Drive.
                   THE COURT:  If you'll just take the witness chair,
         and make yourself comfortable.  Speak into the microphone.
                   DIRECT EXAMINATION
         BY MR. KITCHEN:
         Q.   Okay.  Is it Mr. Brown, or Professor Brown, or what do you
         prefer?
         A.   Call me Steve.  But my title is Professor Brown at Gannon
         University in Erie, Pennsylvania.
                   THE COURT:  What University?
                   THE WITNESS:  Gannon, G-A-N-N-O-N, in Erie,
         Pennsylvania.
                   THE COURT:  Gannon, right.
                   THE WITNESS:  I have a joint appointment in --
                   THE COURT:  Professor of what?
                   THE WITNESS:  In computer science and also management
         information systems.  I've been at Gannon for, this is my 11th
         year.
         BY MR. KITCHEN:
         Q.   And have you had any formal academic training?
         A.   I have a bachelor's degree in mathematics science, a
         master's degree in mathematics education, a second master's
         degree in educational administration, and I did about half my
         doctoral course work at Case-Western Reserve University in
         Cleveland, Ohio in the management information systems
         department there.  I have written programs for about 20 years,
         and I currently consult with three major manufacturers in Erie,
         Pennsylvania, writing programs typically for data base and data
         retrieval from Network Information Systems.
         Q.   Has any of this programming been for the IBM PC or related
         equipment?
         A.   Almost exclusively IBM PC's or the clones that the
         manufacturers commonly have.
                   THE COURT:  Or what?  IBM PC's or what?
                   THE WITNESS:  Or clones, machines that work just like
         an IBM PC.
                   THE COURT:  I don't get that word.
                   THE WITNESS:  C-L-O-N-E-S, Your Honor.
                   THE COURT:  C-O -- C-O-L --
                   THE WITNESS:  C-L-O-N-E-S.
                   THE COURT:  Clones.
                   THE WITNESS:  Correct.
                   THE COURT:  Clones.  I see.
                   THE WITNESS:  For example, that computer you have up
         there is not an IBM brand.  It would be labelled a clone, but
         it works just like an IBM PC.
                   THE COURT:  You can move that around, just lift it up
         and move it.  If you're more comfortable operating off the
         rail.
         BY MR. KITCHEN:
         Q.   And have you had occasion to use various programming
         languages?
         A.   Only about seven.  There are many more that are available,
         but here are the seven that I am familiar with.  Basic, only
         because it's been around since I first started back in 1968.
         Cobal, Pascal, C, Fortran, Foxpro and there was one other one,
         Small Talk.
         Q.   Okay.  And Professor Brown, at some point were you
         contacted by Mr. Graham with respect to this ongoing
         litigation?
         A.   Only that he wanted me to look at some source code to tell
         me, to have me take a look at it to see if these source codes
         were similar or different, and also to look at some CD ROM's,
         I guess, that he or somebody had put together that retrieved
         data from a CD ROM.
         Q.   I'm going to hand you four Exhibits, numbered 37 through
         40, and I'd ask you if you recognize those four Exhibits?
         A.   Yes.   These  have my handwriting on it.  Exhibit number
         37 --
                   THE COURT:  The answer is yes?
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   Okay.  What are they?
                   THE COURT:  What is which, all of them individually?
                   MR. KITCHEN:  Yes.
                   THE COURT:  Or collectively, or what?
                   MR. KITCHEN:  However he wants to tell me, since
         there are only four.
                   THE WITNESS:  Exhibit number 37 is a CD ROM labelled
         C.A.R.R.S.
                   THE COURT:  Wait a minute.  C. --
                   THE WITNESS:  -- A.R.R. --
                   THE COURT:  This is C.A.R.R.S.
                   THE WITNESS:  Exactly.  But the periods show on the
         face of the CD ROM so that's why I said it.
                   THE COURT:  Okay.
                   THE WITNESS:  Exhibit number 38 --
         BY MR. KITCHEN:
         Q.   Let me stop you for a second.  On number 37, does it have
         any kind of version number or anything on it?
         A.   Yes.  When CD's are manufactured --
                   THE COURT:  The answer is yes?
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   Okay.  And what would be the version number on that one?
         A.   It plainly states PDSI-002.
         Q.   Okay.  How about number 38?
         A.   Number 38 has my handwritten 4-A on it.  It is labelled
         Night Owl's, 219 Potomac Avenue, Buffalo, New York.  It also
         has an identification.  It is labelled PDSI-004.
         Q.   Okay.  And how about 39?
         A.   39 also has a Night Owl's on it.  It is labelled PDSI-004-
         1.
         Q.   Okay.  And number 40?
         A.   It is also labelled Night Owl's and it's identified on the
         face by PDSI-004-2.
         Q.   And by the way, the previous one, Exhibit 39, what color
         is that CD ROM?
         A.   Number 39 is reddish, purplish, whatever color you want to
         call this.
         Q.   Okay.
                   MR. KITCHEN:  Your Honor, my reason for asking is, as
         I think will be developed from Mr. Graham's testimony, that
         these are essentially duplicates of some previous Exhibits, and
         although I don't want to testify in that regard, at least for,
         for the Court's reference, I believe the testimony will be that
         number 37 is simply a duplicate of Exhibit 2.  Number 38, and
         Exhibit of number, of Exhibit 5.  Number, Exhibit 39 a
         duplicate of Exhibit 7.  And Exhibit 40 would be a duplicate of
         another one, which now would be 32.
         BY MR. KITCHEN:
         Q.   Okay.  Now, Professor, I'm also going to show you some
         Exhibits, 41 through 46, which are on 8-1/2 by 11 paper, and
         each one is, has its own paper clip and --
                   THE COURT:  Own stapler or now?
                   MR. KITCHEN:  Well, they actually have been stapled
         into small sets which then have been grouped into --
                   THE COURT:  I don't like to have an Exhibit that can
         fly apart and become many pieces, only one of which has a
         number on it.
                   MR. KITCHEN:  Well, that's perhaps a good point.  If
         I could borrow the stapler, Your Honor.
                   THE COURT:  Right over the computer there.  If you
         need a heavier one, I can get it for you.
                   MR. KITCHEN:  Oh, that's all right.
                   THE COURT:  You want the heavier one?
                   MR. KITCHEN:  No.  No.  We were just discussing, Your
         Honor, the possible liability of Mr. Ostrowski if his moving of
         the microphone might create an obstacle over which I might
         trip.
                   THE COURT:  Now that you're alerted to it, of course,
         you'll have no cause of action.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   Showing you what I believe is Exhibits 41 through 47, have
         you seen those before?
         A.   Yes.  These -- yes.
         Q.   Okay.  And who created those?
         A.   I created these.  These are printouts --
                   THE COURT:  You answered it, yeah, who created it.
         BY MR. KITCHEN:
         Q.   And how did you create it?
         A.   I used these Exhibits for this first printout marked
         Exhibit number 41.  I used this CD ROM marked Exhibit number
         37.  I put this into my CD player at home, and I brought up
         various screens that appeared on my computer, and I pressed the
         print screen on keyboard, which prints the screen on a piece of
         paper.
         Q.   Okay.  So in other words, what you were able to get up on
         the screen, you asked a printer to duplicate in black and
         white?
         A.   Yes.
         Q.   So obviously if it came up in color or something like
         that, you're not going to be getting that, are you?
         A.   No.  Just in black on white paper.
         Q.   Okay.  Now, what was your, what was your purpose in doing
         that?
         A.   What I attempted to do was to establish the sequence of
         events.  What came first.  Sometimes this will become
         mislabelled and what I was doing was I was looking at the --
                   MR. OSTROWSKI:  Objection.  Can we have reference to
         Exhibits, Your Honor.  I don't know what he just said because
         I --
                   THE COURT:  Yeah.  This doesn't mean anything for the
         record when we get it printed.
                   THE WITNESS:  I'm sorry.
                   MR. KITCHEN:  Yeah.  You referenced --
                   THE WITNESS:  I missed something.
                   THE COURT:  Well, if you're going to say this, it has
         an Exhibit number on it.
                   THE WITNESS:  Okay.  Will do.
                   THE COURT:  Yeah.
                   THE WITNESS:  I attempted to find out the chronology
         of when these, Exhibit number 37, 38, 39 and 40, I tried to
         determine the order in which they were manufactured.  I had no
         clue which one came first.  I had my suspicions, but I wanted
         some proof of my suspicions.
         BY MR. KITCHEN:
         Q.   Your suspicions were based on what?
                   MR. OSTROWSKI:  Well, objection.  I mean, since I
         object to suspicions, I object to whatever they're based on.
         It's not within his -- it's speculation.
                   MR. KITCHEN:  Well --
                   THE COURT:  Well, I assume not having objected to his
         having suspicions, we might as well find out what they're based
         on.
                   MR. OSTROWSKI:  No.  I think I did, I think I did say
         I would object to that.
                   MR. KITCHEN:  Well, Your Honor, then he objects to
         the word suspicion.
                   THE COURT:  That was an internal, internal unvoiced
         objection.
                   MR. KITCHEN:  Okay.  Then in that case I'm simply
         asking him what observations that he made that caused him to
         think a particular way.  I don't know what's objectionable
         about that.
                   THE COURT:  Well, somewhat, but I'll allow it.
         BY MR. KITCHEN:
         Q.   What observations did you make that gave you what you
         characterized as suspicions?
         A.   I thought that these numbering, these numbers that
         appeared on the Exhibits, for example, on this Exhibit marked
         number 37, this PDSI-002, then I looked at the next Exhibit,
         number 38, PDSI-004.  I didn't know which one came first.  Does
         2 come before 4?  Does 4 come before 2?  I didn't know.  I
         looked further at Exhibit number 39.  I saw PDSI-004-1.  Did
         this one come -- did number 39 come first, did 38 come first,
         second, and did 37 come third?  I didn't know.
         Q.   Okay.
         A.   What I had tried to establish was the chronology of events
         here.
         Q.   Were you able to establish the chronology after you had
         put these programs in your computer and looked at them?
         A.   I believe so.
                   MR. OSTROWSKI:  I'm going to object at this point, on
         the grounds of lack of qualification.  I don't know what the
         science is as far as sequence of events.  Just because someone
         is a knowledgeable programmer does not seem to me that they are
         automatically qualified to take programs they've never seen and
         determine which came first or which came later.
                   THE COURT:  Do you want to ask some voir dire of the
         witness?
                   MR. OSTROWSKI:  I simply object on the grounds that
         there hasn't been any foundation.
                   THE COURT:  Without voir dire I'll allow the witness
         to answer.  We'll handle it question by question, of course.
                   MR. OSTROWSKI:  Well, yes.  I would --
                   THE COURT:  If you had some other question as to
         which you think that his qualifications have not been
         established, why, don't hold back on objecting.
                   MR. OSTROWSKI:  I would like to voir dire the
         witness, Your Honor.
                   VOIR DIRE EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Professor, what training do you have in determining the
         sequence, chronological sequence of computer programs?
         A.   Typically when a program is saved on a disk, it will be
         both time and date stamped.
                   THE COURT:  That doesn't tell me what your
         qualifications and experience are in that field.  You give me
         the end result of it rather than your qualifications, or how
         you came to know that particular fact, if it is.
                   THE WITNESS:  Okay.  I have been working on IBM PC's
         since they came out in 1982.  I have observed any time that a
         person, myself or others, save any kind of a file, whether it's
         word processing, a program, that the operating system indeed
         time and date stamps each file.
         BY MR. OSTROWSKI:
         Q.   I'm sorry to interrupt you, but I -- do you have any
         training, other than your own personal experience?
         A.   Observations?
         Q.   Yeah.
         A.   No.
         Q.   Okay.  Is there such a, is there a science of determining
         the sequence of computer programs?  Is there any literature on
         it?  I guess that's two questions.  Is there, is there a
         science, is there a body of knowledge, a systematic body of
         knowledge of determining, concerning the determination of
         sequences?
         A.   Not that I'm aware of.
                   MR. OSTROWSKI:  I'd ask that he, that the witness be
         barred.
                   THE COURT:  That what?
                   MR. OSTROWSKI:  I'd ask that the witness be barred
         from testifying about this.
                   THE COURT:  As to what?
                   MR. OSTROWSKI:  As to the, the -- as to the
         chronology of computer programs which he has never seen, but
         prior to being called as an expert witness.
                   MR. KITCHEN:  Your --
                   THE COURT:  All right.  So he can't come out with a
         gross opinion.  So we'll have to go through the step by step
         and see whether that convinces the Court, who is a non-expert,
         of any particular result.
                   MR. OSTROWSKI:  May I just ask one more voir dire
         question, Your Honor?
                   THE COURT:  Yeah.
         BY MR. OSTROWSKI:
         Q.   The --
                   MR. OSTROWSKI:  Well, no.  I withdraw that.  Thank
         you.
                   CONTINUED DIRECT EXAMINATION
         BY MR. KITCHEN:
         Q.   Well, having taken these programs and utilized them in a
         computer, did you make any observations as to dates or
         indication of priority?
         A.   Yes, I did.  Based upon the --
                   THE COURT:  Wait a minute.  Yes, I did is an answer.
                   THE WITNESS:  Yes, I did.
         BY MR. KITCHEN:
         Q.   All right.  And what did you observe?
         A.   I observed from the dates and times that were put on these
         programs by the operating system that this disk, number 37,
         came first.
         Q.   Okay.
         A.   That this disk number 38 came second.  That this disk
         number 39 came first.  That this disk number 40 came fourth.
         The reason I say that --
                   THE COURT:  Wait a minute.  All right.
         BY MR. KITCHEN:
         Q.   Well, yes, and what was the reason?
         A.   The computer has what's almost like a postmark on a
         letter.  You can tell when a letter was processed through the
         post office by looking at its postmark.  The computer has
         something very similar.  It's called a tape, the date, time
         stamp.  It's just like a postmark but it's used for time and
         date stamping when a program was initially saved, or when it's
         been most recently modified or changed.
                   THE COURT:  How does that appear?
                   THE WITNESS:  In what respect, Your Honor?
                   THE COURT:  How does it appear?  How do you know it's
         there as a particular date is there?
         BY MR. KITCHEN:
         Q.   How do you read it?
         A.   I have an observation.  If you'll take a look at Exhibit
         number 41, it plainly states --
                   THE COURT:  Now, 41 is one of your printouts.
                   THE WITNESS:  Yes.
                   THE COURT:  Not in evidence.
                   THE WITNESS:  That if you take a look in --
                   THE COURT:  Wait a minute.  Not in evidence.
         BY MR. KITCHEN:
         Q.   What exactly -- you're referring to the second page of
         Exhibit number 41?
         A.   Correct.
                   THE COURT:  How many pages are there?
                   MR. KITCHEN:  Of --
                   THE COURT:  Well, there's multi pages.
                   MR. KITCHEN:  Multi pages.
                   THE COURT:  Now stapled.
                   MR. KITCHEN:  Yes, now stapled.
         BY MR. KITCHEN:
         Q.   In particular, page 2 and 3.
                   THE COURT:  And they're not numbered, I assume, so --
                   MR. KITCHEN:  That's correct.  The second and third
         pages of --
                   THE COURT:  Sheet.  Second and third sheet.
         BY MR. KITCHEN:
         Q.   The second and third sheets of Exhibit 41.  Can you tell
         me how those were produced on your printout?
         A.   I wrote down the sequence that I typed on my computer to
         print the second page, second sheet of Exhibit number 41.
         Q.   What was the sequence?
         A.   I typed D-I-R, then greater than P-R-N, to direct the
         output to the printer so that I would have a permanent copy of
         what had went on the screen.
         Q.   Okay.  And the printer then produced the second and third
         sheet?
         A.   Yes.
         Q.   Okay.  And when you do ask the computer to print out or
         display a dir, what information does the computer provide,
         either on the screen or to the printer?
         A.   In the first column it will provide what's called the file
         name.  In the second --
                   THE COURT:  The what?
                   THE WITNESS:  The file name.
                   THE COURT:  The file name, yes.
                   THE WITNESS:  The name of the file.  The second
         column will provide the file extension, if the author chose to
         use one.  That is optional.  And many times you will see
         missing parts in column 2.  That's pretty standard stuff.
         Column 3 will list whether it is a directory or not.  Column 4
         will list the date that it was originally created or most
         recently altered, and in the fifth column it will list the date
         and time.  I may have got the numbering sequence wrong.  The --
         let me see, the fourth will have the date and the fifth will
         have the time.
         BY MR. KITCHEN:
         Q.   And how is the date put into the, put onto the disk
         itself?  In other words, do you know, do you know how the date
         would have gotten onto each of these CD ROM's?
         A.   When the programs were transferred from floppy disk or a
         hard disk or a tape to the CD ROM, the date and time went with
         it.
                   THE COURT:  How does that happen?
                   THE WITNESS:  By duplication.  It is a --
                   THE COURT:  Is it an automatic thing?  You, going
         from a floppy to a CD ROM and automatically the date appears?
                   THE WITNESS:  Yes.  That is correct, Your Honor.
         BY MR. KITCHEN:
         Q.   Does this presuppose that the date on the computer which
         writes the program or copies it or records it will be accurate?
         A.   In most cases, yes.
         Q.   Okay.  So I suppose it is possible for somebody then to
         have put in a different date at some point?
         A.   Yes.  That's possible.
         Q.   Okay.  But your assessment of the chronology of these
         things, did that presuppose that the dates were accurate?
         A.   I would say within several days to a week of the correct
         date, yes.  I myself have a computer where the battery has worn
         down and the dates have been off by one day, and my clock runs
         a little bit slow and the time's going to be off a little bit.
         So is it exactly that same day?  The answer is, I don't know.
         Is it within a week or so?  Absolutely.
         Q.   Okay.  Now, what was your --
                   THE COURT:  Wait a minute.  You say, within a week or
         so.  What's involved in that, quote, or so?
                   THE WITNESS:  Seven to 10 days has been my experience
         in the past.
                   THE COURT:  It was accurate within 10 days.
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   All right.  In this -- now, your, your printing out of
         these screens and everything, what was your purpose in doing
         that?
         A.   I tried to establish again the chronology of events, and
         also to see the structure at which data was saved.  There are
         pretty standard ways of saving data, organizing data, putting
         them with unique names or organizational ways.  And I was just
         trying to see how the author, whoever wrote this, established
         that pattern.
         Q.   Now, Exhibit number 37 there, the CD ROM, actually
         contains quite a few programs on it, doesn't it?
         A.   Over 600.
         Q.   Were there also -- was there a particular program that you
         were focusing on on that CD ROM?
         A.   Yes.  I looked at the data retrieval program on this
         particular one.
                   THE COURT:  What, what retrieval?
                   THE WITNESS:  The data retrieval.
                   THE COURT:  Data retrieval.
                   THE WITNESS:  Program on this CD ROM, marked Exhibit
         number 37.
         BY MR. KITCHEN:
         Q.   What was the name of that program?
         A.   The name of the program was Night.EXE.  It had a date
         stamp of 10/25/90 at 10:56 p.m.
         Q.   Okay.  And did you examine that program in terms of how it
         operated?
         A.   Yes.
         Q.   And did you also examine it in terms of its various
         screens?
         A.   Yes.
         Q.   Okay.  Did you make any observations in particular about
         that program?
         A.   Yes.
         Q.   Okay.  What were your observations about, with regard to
         that program?
         A.   It was kind of clunky.  It needed some work, some -- it
         basically works, but it needed some things to make it better.
         Q.   What was the purpose of that program, from what you could
         determine?
         A.   The purpose of this Night.EXE program was to list the
         files that were available on Exhibit number 37, give the user
         the option to identify any one of those particular programs on
         this Exhibit number 37, and transfer that program from Exhibit
         number 37 onto floppy or hard drives that the user had
         available to him or her.
         Q.   Okay.  And were there any things about the design that
         appeared to you to be unique or original?
         A.   Yes and no.  Because of the volume of programs, 600
         programs, the author chose to segregate or organize the
         programs into logical groupings.  For example, all the programs
         that dealt with communications were together as a group, all
         the programs that dealt with graphics were together as a group.
         They did not mix graphics in with communications.
         Q.   Okay.
         A.   Of particular note, I did notice that one of the, in fact,
         several of the groupings were quite large, and the author of
         this program chose to break that grouping down into an A, B, C
         grouping within let's say communications, an A, B, C within
         graphics.  I've never seen that done before.
         Q.   Okay.
         A.   Usually they've either been numbered or they've had
         something different about them.  I've never seen that
         breakdown, 001-A, 001-B, 001-C.  I thought that was rather
         unique.
         Q.   And did --
                   THE COURT:  It was unique probably in the way that
         it, one, it has a limitation, unless you're getting into double
         letters, whereas in numbers you don't have that limitation.
                   THE WITNESS:  Agreed.
         BY MR. KITCHEN:
         Q.   Was there any particular -- well, let me stop for a
         second.  You've indicated that there was things like 001-A,
         001-B and 001-C, but you said that each of the particular
         categories, such as communications, graphics, et cetera, would
         have just a number?
         A.   Yes.  For example, communications would have been 001.
         Q.   Okay.
         A.   Graphics would have been 007.  With a further breakdown of
         A, B, C for 001-A, 001-B, 001-C.  Graphics would be 007-A, 007-
         B.
         Q.   Well, now, these numbers with the A or the B or the C
         after them, they were used as what?
         A.   I have no idea.  You'll have to ask the author.
         Q.   Well, what I mean is, where did you, where did you find
         them?  001-A refers to what?
         A.   Communications.
         Q.   Okay.  And, but how was that different from 001-B?
         A.   I understand now.  Communications was a very large
         collection.  What the author chose to do was group 001-A, only
         part of the communications, it was so large.  I'm guessing, but
         I think the --
                   THE COURT:  Don't guess.  Unless it's based somehow
         on experience, training or education.  Then you may guess.
         BY MR. KITCHEN:
         Q.   In any event, it was a large group?
         A.   Yes.
         Q.   But that was kind of the middle of your explanation here.
         What was, what was the rest of it?  Regardless of the exact
         number?
         A.   The intent was to break this large group into three
         smaller groups.
         Q.   Okay.  What, would that serve any advantage for user or
         author or anybody?
         A.   Oh, absolutely.  It would increase the speed of retrieval
         by, oh, maybe three, four, five, maybe even 10 times faster, by
         having smaller groups to search through, rather than one large
         one.
         Q.   Can you explain to us why?
         A.   When data is stored on a disk, when it's given a name, it
         is typically stored in the next available space on that disk.
         For example, suppose we have a disk that has 13 files on it.
         I am about to save a new file.  It will go in the 14th
         position.  When I go to retrieve that 14th file, the operating
         system in the computer will look at number 1 to see if that's
         the correct one, will look at number 2 to see if that's the
         next, the right one, look at number 3, et cetera, until it gets
         to number 14.  Because it was the last one put on the disk, it
         will take the longest time to retrieve.
                   THE COURT:  Now, if, for example, number 5 had
         somehow been voided and wiped out on the disk, creating a
         storage bin, and you put number 14 on, does that go into the
         fifth space?
                   THE WITNESS:  If there's room, Your Honor.
                   THE COURT:  Depending on the relative size of the two
         programs.
                   THE WITNESS:  Exactly.  For example, if number --
                   THE COURT:  If -- a further question then, if it did
         slide into an earlier spot, is that caught earlier in the
         computer's search or is it --
                   THE WITNESS:  Absolutely.
                   THE COURT:  -- still at the tail end?
                   THE WITNESS:  No.  If it goes into the fifth
         position, it will be quicker.
                   THE COURT:  Geographically, so to speak.
                   THE WITNESS:  Yes.  Imagine, if you will, 600 of
         them.  If you wanted number 599, it would have to go through
         all of those previous 598 to get to that number 599.  By
         breaking it into three groups of let's say, 100, 100 -- 200,
         200, 200, the worst case scenario, it would, even if it were
         the last in any one of those three groups, it would only have
         to go through maybe 200, instead of 600.  Three times faster.
         BY MR. KITCHEN:
         Q.   Had you seen previous programs involving the use of lists
         and the access of lists of various things?
         A.   I do that for a living.  I do that for my consulting
         business.  I've been doing that for 15, 20 years.
         Q.   And had you ever before seen this particular arrangement
         as a way of cutting down the time it takes to access a list?
         A.   The arrangement, breaking into sub-groups, or the
         numbering pattern the author selected?
         Q.   The pattern that the author selected?
         A.   No.  This is the first time I've seen that A, B, C basis.
         I've never seen that before.  I've seen other people break it
         down into smaller groups and call them different names, but
         I've never seen this numbering sequence with the lettering
         sequence.
         Q.   Okay.  Had you ever looked at other files retrieval
         programs?
         A.   Only a few, but not dealing with CD ROM's.
         Q.   Okay.  Now, did you have occasion then to also look at
         the, the program, a similar file retrieval program on the next
         disk, number 38?
         A.   Yes.
         Q.   Okay.  And what, what observations did you make about
         that?
         A.   I'm looking at Plaintiff's Exhibit number 42.
                   THE COURT:  42 is from 38?
                   THE WITNESS:  Correct, Your Honor.  On page 6.
         BY MR. KITCHEN:
         Q.   It would be the sixth sheet, okay.
         A.   Sixth sheet of Exhibit number 42.
         Q.   Okay.  What do you have there?
         A.   Exact same pattern.
         Q.   Okay.  Meaning?
         A.   001 has been further subdivided.  001-A, 001-B.  There is
         no C in this instance due to the smaller number of files in
         that communications group.
         Q.   Okay.  Did you have occasion to compare that particular
         program with the first program you talked about, that was on
         Plaintiff's Exhibit 37?
         A.   The Night.EXE program?
         Q.   Yes, sir.
         A.   Yes.
         Q.   Okay.  What observations did you make about their
         similarity or differences, other than what you've talked about
         in terms of this particular category arrangement?
         A.   It got better.  The data retrieval was better than it was
         before.  It wasn't as clunky.  It was a little bit smoother in
         operation.
                   THE COURT:  Clunky is a word of art?
         BY MR. KITCHEN:
         Q.   Yeah.  Perhaps, Professor, you could explain what you mean
         by clunky.
                   THE COURT:  Or what is meant in the field by clunky,
         if anything.
                   THE WITNESS:  Clunky is probably my expression for
         something --
                   THE COURT:  Is there an accepted term for clunkiness?
                   THE WITNESS:  No.  No, Your Honor.  That's a Steve
         Brown original.
                   THE COURT:  It's a
                   THE WITNESS:  The -- clunky means the program works,
         but not well.  It's like a door that you got to lift up and
         turn the key in order to lock it.
                   THE COURT:  Clunky equals inefficiency?
                   THE WITNESS:  No.  Clunky means it does not work
         well.  It works, but not, does not work well.
         BY MR. KITCHEN:
         Q.   Well, what makes a program work well or work less well?
         A.   When you press a key, a good program will look at that key
         that is pressed to see if it's a legitimate option at that
         point in time in the program.  If it's a good program and if
         the key was a bad key, some kind of notice will be provided to
         the user, that selection not available, or inappropriate
         selection, try one of the available keys.
         Q.   Okay.
                   THE COURT:  We were looking at some screenings
         earlier of some ROM's and from point to point I would see,
         quote, bad number, da, da, da, da, da, unquote.  Is that what
         you mean?
                   THE WITNESS:  Similar to that.  I couldn't say unless
         I saw the screen myself.
                   THE COURT:  But that type of --
                   THE WITNESS:  That kind of a thing, yes, Your Honor.
                   THE COURT:  -- of a warning, an alertness.
                   THE WITNESS:  Yes.
                   THE COURT:  An instruction.
         BY MR. KITCHEN:
         Q.   All right.  Now, with respect to the improvements, could
         you note some, any other specific improvements between the
         first one you looked at and the second one?
         A.   I have to refer to my notes.  I looked at four of them and
         I want to make sure that I'm absolutely --
         Q.   Of course.
         A.   -- sure on this.
         Q.   Of course.
         A.   I am looking at --
                   THE COURT:  Now, your notes are what, part of an
         Exhibit?
                   THE WITNESS:  Exhibit number 45, Your Honor.  Page
         number 4.
                   THE COURT:  These are your notes.
                   THE WITNESS:  No.  Again -- no.  These are again
         printings of what appeared on the screen.
                   THE COURT:  I see.  Why do you call them notes then?
                   THE WITNESS:  On the first page, I have a numbered
         list, a handwritten numbered list of what each one --
                   THE COURT:  It would be the first sheet then that is
         your notes.
                   THE WITNESS:  Correct.
                   THE COURT:  The rest of them are printouts.
                   THE WITNESS:  Correct.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   Okay.  Having referred to your --
                   THE COURT:  What -- let me just interrupt you.  What
         basic Exhibit does Plaintiff 45 refer to or emulate from?
                   THE WITNESS:  Number 45, these are screen printings.
         Exhibit number 30 -- 40.
                   THE COURT:  From 40.
                   THE WITNESS:  From 40.
         BY MR. KITCHEN:
         Q.   Okay.  After looking at your notes there, which is page,
         the first page, top sheet on Exhibit 45, what, what have you
         noted?
         A.   There were some additional options in this improved
         version that weren't available before in the version marked
         Plaintiff's Exhibit number 37.  Down at the bottom of the
         screen you could do a search.  It was not available before.
         This is new.  You could do a set-up.  You could go to DOS right
         from the menu, and there is an option to quit.
         Q.   Okay.  Now, in programs, in your experience, is it normal
         for programs to have a particular command for quitting or
         ending a program?
         A.   Yes.
         Q.   Okay.  So that would not be a unique characteristic of a
         program?
         A.   To have Q stand for quit?
         Q.   Right.
         A.   That's pretty standard procedure.
         Q.   Okay.  And to be able to have a search feature?
         A.   S?
         Q.   Yes.  Is that, is that unusual or is that fairly standard?
         A.   Very common.
         Q.   And how, how -- what did this program do to accomplish
         that search?
         A.   What it did was, it looked at the key press that the user
         had selected.  There was various traps.  This one was better
         than the previous one.  There was traps to see whether it was
         a number first from 1 to whatever the number was, from 1 to 60,
         to see whether that was a legitimate number.  If it wasn't a
         legitimate number, the program then looked to see whether it
         was a capital U or a little U, a capital S or a little S, a
         capital E or a little E, a capital D or a little D, a capital
         Q or a little Q, indicating that these are legal options for
         the user to select.
         Q.   And if it wasn't one of these, what did it do?
         A.   It put some kind of message on the screen, I can't
         remember whether it was an invalid key or please select another
         key.
         Q.   Okay.  Now, is the inclusion of traps to somehow filter or
         limit the input  that a person can validly put in, is this an
         unusual feature on a program?
         A.   It's not unusual.  In fact, it's rather mandatory.  A good
         program should put these traps in.  It would be the exception
         that did not.
         Q.   Now, if you were doing the programming for something like
         this, what kind of instructions would you have to, would you
         have to include in your source code that would, that would have
         a program do this kind of filtering or trapping?
         A.   Depending upon which language it would be written in, each
         language has its own very limited set of instructions that are
         allowed to be used, less than 500 words.  And you would have to
         check with that language to see what instruction captured the
         most recent key pressed on the keyboard.  In some languages it
         would be get chart, G-E-T C-H-A-R, or G-E-T C-H, and that would
         get the most recent key pressed.  Then you would have to
         compare that key that was pressed against whether it was a 1,
         up to 60.  There are efficient ways of doing this.  To check to
         see whether it was a capital Q or a little Q.  You would also
         have to check to see whether it was a S or little S.  You'd
         have to check to see whether it was an E or little E, in
         sequential order, checking all these things.  But remember, the
         computer does this at amazing speeds.
         Q.   Now, I take it when, when an individual presses a key on
         the keyboard, that that character goes somewhere.  I mean,
         sometimes we're used to seeing these things up on the screen,
         but what happens --
                   THE COURT:  Closes the circuit.
         BY MR. KITCHEN:
         Q.   Well, yes, it does close the circuit.  Is there someplace
         in the computer where is stored the information that I just
         pressed, let's say the letter A?
         A.   Yes.  It's stored in a keyboard buffer.
         Q.   I see.  And that keyboard buff --
                   THE COURT:  Keyboard what?
                   THE WITNESS:  Keyboard buffer, B-U-F-F-E-R.
         BY MR. KITCHEN:
         Q.   And that's part of the memory in the computer?
         A.   Special memory in the computer.  Anything typed from the
         keyboard goes to the keyboard buffer for inspection.
         Q.   And, and I take it -- well, can one write then commands in
         the program which go and see what's in the keyboard buffer?
         A.   Absolutely.
         Q.   Is that the command that you identified as --
         A.   Absolutely.
         Q.   -- C-H-A-R?
         A.   Get char.
         Q.   Get char?
         A.   Get the character.
         Q.   Okay.  All right.  Now, does each and every language that
         you've already said you are acquainted with, do they all have
         that capability of finding out what's in the keyboard buffer?
         A.   No.
         Q.   Oh.  How about C --
         A.   Yes.
         Q.   -- and Quick Basic?
         A.   Yes.
         Q.   All right.  And they may use different wording for those?
         A.   Yes.
         Q.   But essentially, they do the same --
                   MR. OSTROWSKI:  Objection.  They're leading
         questions.
                   THE COURT:  Yeah.  Let him testify.
         BY MR. KITCHEN:
         Q.   If -- would each of these traps that you've referred to
         require the use of this command?
         A.   That or one or two others, depending upon the language.
         Q.   You said that this is very common, these traps.  How many
         different ways are there for a particular language, let's say
         Quick Basic, for example, to utilize, or to put these traps in
         its source code?
         A.   Two or three that I'm aware of.
         Q.   Okay.  Is there any preference of using one pattern over
         another?
         A.   Yes.  Some are more efficient than others.
         Q.   Any reason somebody would want a less efficient method?
         A.   Yes.
         Q.   Okay.  Why?
         A.   Just to see if the darn thing works.
         Q.   Okay.
         A.   When writing a program, I sometimes don't take the most
         efficient way.  What I just want to do is get the program
         working, to see if my strategy will indeed work.  After it's
         working, I go back and I clean it up and I make it more
         efficient.
         Q.   Okay.  Since, since various programs always use these
         traps and everything, would it be uncommon to let's say, see
         the same language in one program as compared with the language
         in a completely different program, would there be some
         similarity if they both involved the use of these traps?
         A.   Yes.
         Q.   Okay.  Were there any other changes that you noted between
         the first and the second program you examined?
         A.   Other than it worked better?
         Q.   Yes.
         A.   There were additional options.
                   THE COURT:  First and second programs being?
                   MR. KITCHEN:  The ones on 37 and the ones on 38.
                   THE COURT:  All right.
                   MR. KITCHEN:  Or the one on 37.
         BY MR. KITCHEN:
         Q.   It had more options and worked better, I think was your
         answer?
         A.   Yes.
         Q.   Okay.
         A.   But it did essentially the same thing.
         Q.   Now, each of the changes that you have talked about seemed
         to have involved the addition of rather conventional features.
         Is that, is that correct, or if not --
         A.   Yes.  I think I stated before that someone took the
         program that was on Exhibit number 37, added things to it, and
         made it better.
         Q.   All right.
                   MR. OSTROWSKI:  I object.  That's not responsive.  I
         ask that it be stricken.  And he did not say that before, to my
         recollection.
                   THE COURT:  Well, we'll strike that part of it which
         says, as I said before.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   The -- could you find any of the changes or improvements
         or things that made it better to be in any way unique or
         original in programming?
         A.   No.  I would expect that those things on Exhibit 40 to be
         there.  I was rather surprised that they were not there on
         Exhibit number 37.  But we must go back in time a little bit.
         This is 1993.  That was in 1990.  Three years ago I would have
         killed to have -- no, I wouldn't have killed.  I would have
         spent a lot of money to get a CD ROM.  I didn't have enough
         money.  They were very expensive in 1990.  People were just
         very happy to get something like this that had millions of
         characters of programs that were available, and they were
         really willing to put up with a little inconvenience just to
         have access to this.  This was one of the first that I can
         remember in this region of the country of CD ROM's available,
         that had this great quantity of data available on it.
                   THE COURT:  This is what?
                   THE WITNESS:  Exhibit number 37.
         BY MR. KITCHEN:
         Q.   Okay.  Now, we talked about 37.
                   THE COURT:  You're saying then Plaintiff 37 was very
         good for its stage of the development of this type of
         technology.
                   THE WITNESS:  Three years ago, it would have --
                   THE COURT:  Yes or no?
                   THE WITNESS:  Yes.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   Now, can you tell me, you've already kind of described the
         difference between 37 and 38.  Did you make any notation of say
         the difference between the retrieval program on 38 and the one
         on 39?
         A.   Didn't notice too much difference, no.  There might have
         been some subtleties that I was not looking for, that may be
         there but I just did not observe.
         Q.   Were you given any --
                   THE COURT:  This is between 39 and what, Professor
         Brown?
                   THE WITNESS:  This was between number 38 and Exhibit
         number 39.
         BY MR. KITCHEN:
         Q.   Did you have any access to the source codes on any of
         these?
         A.   I had access to the source code only for number 40.
         Q.   Okay.  Did you make any observations as to any differences
         between the retrieval program on 39 and the retrieval program
         on 40?
         A.   No, I did not make any notations to that effect.
         Q.   Okay.  Is there -- did you make any observations with
         respect to the similarities between --
         A.   Between what?
         Q.   Between 39 and 40?
         A.   The access program or the structure of the data?
         Q.   Either one?
         A.   I didn't notice any difference in the retrieval of the
         data.  Number 39 appeared to be very similar, if not identical,
         to number 40.  I didn't notice many differences in the
         retrieval program.  I will have to consult my printouts to see
         if there was any differences or similarities in the way that
         the data was stored.  Hold on.
                   THE COURT:  What are you looking at?
                   THE WITNESS:  Your Honor, I'm looking at Exhibit
         marked number 44.  Sheet number 2.  These are a printout of the
         structure of how the data was stored, and I'm seeing that same
         001-A, 001-B, 001-C.  Again, this is on Exhibit number 44.
         That is --
                   THE COURT:  It ties in to what, to which of the four
         basic Exhibits?
                   THE WITNESS:  Number 39.  I am now looking at Exhibit
         number 43, sheet 2.  This ties in with Exhibit number 40.  I
         see the same pattern there, 001-A, 001-B, 001-C.
         BY MR. KITCHEN:
         Q.   Now, do you have any overall opinion about -- you had
         indicated that the first one was somewhat clunky, okay?
         A.   Did not work well.
         Q.   Right.  Did not work well.  Do you have --
                   THE COURT:  That's what clunky means?
                   THE WITNESS:  Yes.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   Did you have particular opinions with respect to the
         programs on the other three disks?
         A.   They worked better and had more options.
         Q.   Okay.  And were there anything still missing or anything
         that you would have changed?
         A.   Me personally?
         Q.   Yes.
         A.   I would have put even more options in.  There were some
         that I thought were needed, were not included, but this is
         enough to get by for an unsophisticated user.
         Q.   Okay.
         A.   I would have added more myself.
         Q.   All right.  Now, you did, you said, had opportunity to
         look at source code but only on one of these?
         A.   Yes.  Only on the data retrieval program that managed
         Exhibit number 40.
         Q.   Okay.  Let me see.  That's the one that's PDSI-004-2?
         A.   Correct.
         Q.   Okay.  How many source codes did you -- or, did Mr. Graham
         send you?
         A.   He --
                   THE COURT:  How many what?
                   MR. KITCHEN:  Source codes.
                   THE WITNESS:  Three.
                   THE COURT:  And what was the rest of the question?
                   MR. KITCHEN:  Oh.  Did Mr. Graham send you.
         BY MR. KITCHEN:
         Q.   Do you have copies of those source codes?
         A.   Yes.  They're in my briefcase.
         Q.   Okay.  Could we --
                   THE COURT:  How many did he send?
                   THE WITNESS:  Three.
         BY MR. KITCHEN:
         Q.   Could you get those source codes?
         A.   Yes.
                   MR. KITCHEN:  I'm afraid for this one we probably are
         going to need a heavier duty stapler, Judge.
                   THE COURT:  The big stapler.
         BY MR. KITCHEN:
         Q.   I'm showing you what's been marked Plaintiff's 48, 49 and
         50, and ask you to identify those packs of paper.
         A.   Exhibit number 48 is a printout of the source code that I
         received on a disk marked A from Richard Graham.  Exhibit
         number 49 is a printout of a source code of Night.C that I
         received on a disk marked --
                   THE COURT:  Night, point what?
                   THE WITNESS:  Night.C.  On a disk marked B.  Exhibit
         number 50 is a printout of a program called Night.C on a disk
         provided by Mr. Graham marked C.
                   THE COURT:  Let me get down to one word of -- one
         aspect of raw art in this field.  When you say disk, is that D-
         I-S-C or K?  It's not said.  I guess.  It doesn't matter.  All
         right.
                   THE WITNESS:  That's right.  The most common form is
         D-I-S-K.
                   THE COURT:  Thank you.
         BY MR. KITCHEN:
         Q.   When you say corresponding to A, B and C, when you say A,
         do you mean Exhibit 38?
         A.   No.
         Q.   Oh, no.
         A.   Mr. Graham sent me three floppy disks in the mail, or by
         Federal Express.  They are still in Erie, Pennsylvania.
         Q.   Okay.  So they are not necessarily related to the
         notations made on Exhibits 38, 39 and 40?
         A.   I have no idea.
                   THE COURT:  You didn't examine them, or didn't
         examine them with relation to this?
                   THE WITNESS:  The programs that are on the floppy
         disk worked with data that was on the floppy disk.  The
         programs did not work with data that was on the CD ROM.
         BY MR. KITCHEN:
         Q.   Were you able to make any determination as to whether or
         not those source codes were source codes for the retrieval
         system which were on any one of Exhibits 37 through 40?
         A.   Yes.
         Q.   What determinations were you able to make?
         A.   The program marked Exhibit number 50 worked just like the
         program labelled Night.EXE on Exhibit number 40.  Worked just
         like it.
         Q.   Okay.  And did you make any other determinations with
         respect to Exhibits 48 or 49?
         A.   In relationship to these other disks?
         Q.   Right.
         A.   There was no connection at all, other than these programs
         had more options that didn't exist on any of these.
                   MR. OSTROWSKI:  Your Honor, I'm going to object at
         this point and ask that the -- in light of the fact that the
         witness has stated that  they're  not  connected with any
         Exhibits before him, that they're irrelevant to the case and
         until --
                   THE COURT:  They haven't been offered.
                   MR. OSTROWSKI:  Well, I'd object to him testifying
         about them on the grounds of relevance.
                   THE COURT:  Well, he hasn't testified.  You may
         object to his testifying from them, but he hasn't done that
         yet.
                   MR. OSTROWSKI:  Well, Your Honor's knowledge of the
         law of evidence exceeds mine.  I'm simply --
                   THE COURT:  No.  It doesn't exceed yours.  It's just,
         I have the ruling hand.  And the gavel.
                   MR. KITCHEN:  Your Honor, I --
                   THE COURT:  Please go on.  I've overruled the
         objection.  Unless you want to talk me out of my position.
                   MR. OSTROWSKI:  No.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   Were you able to determine what, notwithstanding the fact
         that you could not tie them to a particular CD ROM, were you
         able to make a determination as to what Exhibits 48 and 49
         were?
         A.   These --
                   MR. OSTROWSKI:  Same objection, on the grounds of --
                   THE COURT:  He may answer yes or no.
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   Okay.  And what did you determine that they were?
         A.   These programs retrieve data from a disk.
         Q.   Okay.  And could you tell what language they were written
         in?
         A.   Yes.  They were written in Borland C Plus Plus.  This
         Exhibit --
                   THE COURT:  Wait a minute.  What?
                   THE WITNESS:  Exhibit number 50 --
                   THE COURT:  I know.  Written in what?
                   THE WITNESS:  Borland C Plus Plus.
                   THE COURT:  Borland C Plus.  B-O-R-L-A-N?
                   THE WITNESS:  D.
                   THE COURT:  C Plus.
                   THE WITNESS:  Plus.  There's a second Plus, Your
         Honor.
         BY MR. KITCHEN:
         Q.   So all three, 48, 49 and 50, were written in C Plus Plus?
         A.   I believe so.
         Q.   Okay.  Is that something that's readily obvious, by the
         way?
         A.   Yes.  You can tell by the syntax, immediately.
         Q.   Okay.  Could you tell at all from what was contained in
         them when they were written?
                   MR. OSTROWSKI:  I'm objecting, Your Honor, to all,
         this whole line of questioning on the grounds of relevance.
         These programs have not been identified as having anything to
         do with this lawsuit.
                   MR. KITCHEN:  Well --
                   THE COURT:  Well, I'm in that situation, Mr.
         Ostrowski, where I can't yet evaluate the relevancy.  If Mr.
         Kitchen is going to assure me that he's leading to something
         relevant, I would have to allow him.  I haven't smelled any
         relevancy yet, but that's often the case.
                   MR. KITCHEN:  Your Honor, let me just say that the
         particular significance of many of these things, including the
         four disks which are, where were previously identified as
         having been sent to Professor Brown --
                   THE COURT:  I haven't overruled -- I haven't said you
         couldn't go forward.
                   MR. KITCHEN:  All right.
         BY MR. KITCHEN:
         Q.   And did you make any observations with respect to 48, 49
         and 50, as to the methods used or the workmanship of the
         programmer who wrote that, those source codes?
         A.   Do I just say yes, or do I explain?
         Q.   Just say yes.
                   THE COURT:  Answer yes.
                   THE WITNESS:  Yes.
                   THE COURT:  And then if he wants to hear from you --
                   MR. KITCHEN:  Okay.
                   THE COURT:  -- he'll ask you to explain.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   What, would you tell us what observations you made in that
         regard?
         A.   Exhibit number 50 retrieves data from a disk, whether it's
         a hard disk, whether it's a CD disk, whether it's a floppy
         disk, I don't know, but retrieves --
                   THE COURT:  All right.  Now, let me just interrupt,
         and hold your thoughts here.  You've introduced some new phrase
         that I'm not, I'm not knowledgeable about.  You have floppy
         disks and hard disks, I know.  What's a speedy disk?
                   THE WITNESS:  CD, compact disks.
                   THE COURT:  CD disks.  I see.  I thought you said
         speedy.  Go ahead.
                   THE WITNESS:  No.  CD disks.
                   THE COURT:  All right.
                   THE WITNESS:  However, I noticed that the structure
         that it retrieves the data from is the same structure that I
         talked about before, 001-A, 001-B, 001-C.  It looks for those
         identification marks so that its data engine, its search engine
         knows where to go to find it.
         BY MR. KITCHEN:
         Q.   Would -- did it have any of the features, were you able to
         discern whether or not it had any of the features that were
         available on the CD ROM's that you looked at?
         A.   Oh, yeah.  They had all the features that were available.
         This Exhibit number 50?
         Q.   Yes.
         A.   This had all the features that were available on this CD
         marked Plaintiff's Exhibit number 40.
         Q.   Okay.
                   THE COURT:  But you mentioned one program or one
         aspect of Plaintiff 40, the Night.EXE, or is the Night.EXE all
         of Plaintiff 40?
                   THE WITNESS:  Night --
                   THE COURT:  I took that to be one part of 40.
                   THE WITNESS:  Correct.  Night.EXE is one program that
         is recorded on this disk.
                   THE COURT:  So when you're saying that 50 is like
         that, it's like that portion of 40.
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   Well, is Night.EXE -- what is that?
         A.   That is the, EXE, that's the executable code that actually
         is the data retrieval program.  This source code is written in
         what's called C Plus Plus.  The computer cannot understand
         this.  A compiler is a program that translates this, what us
         humans understand, into computer codes that the computer
         understands.  So this is what some human has typed in and has
         tested to make sure it runs.  This is what's called the source.
         After it's been translated into what the computer can
         understand, that's called the executable.  So the Night.C is
         this document that I'm holding in my hand, Exhibit number 50.
         The Night.EXE is the translated program that will actually
         work.  It's in computer codes.  It's recorded on this CD marked
         Exhibit number 40.
         Q.   Are you acquainted with the term object code?
         A.   Yes.
         Q.   What does that refer to?
         A.   The object code is the executable code.
         Q.   I see.
                   THE COURT:  Excuse me.  I didn't get that adjective.
                   MR. KITCHEN:  Object.
                   THE COURT:  Object code.
         BY MR. KITCHEN:
         Q.   Now, did you make any observations with regard to the
         programming workmanship of Exhibits 48 and 49?
         A.   Number 48 does essentially the same thing as number 50,
         differently.  There are different instructions to have the same
         things happen.  In some cases the instructions are very
         similar, but they're similar because of nature.
         Q.   Now, could --
                   THE COURT:  I don't understand that.
                   MR. KITCHEN:  Yes.  Could you --
                   THE COURT:  Can you help me?
         BY MR. KITCHEN:
         Q.   Could you explain that?
         A.   When a person is writing a computer program, they have a
         very limited selection of instructions, 400 to 500 of them.
         And when it comes time to clear the screen, there's two or
         three ways to clear a screen that I'm aware of.  That's it.
         You pick one way, second way or third way.  There are no
         others.  In some instances there's only two ways to do a
         particular item.  And in yet other instances there's only one
         way of doing it.  And I would expect when there's only way of
         doing it for the programs to be very similar.
         Q.   Is clearing the screen a function that's required in many
         programs?
         A.   Yes.  When you have stuff on the screen and, or you
         conclude an exercise, and you want to clear the screen before
         starting something else, that's very, very common.
         Q.   Did you make any other observations about 48 and 49?  Or
         48.  You were talking about it.
         A.   I'm talking about number 48 first.  Number 48 is much
         better written.  If I were to --
                   THE COURT:  Than what?
                   THE WITNESS:  Than Exhibit number 50.  In my opinion,
         Exhibit number 50 was written by a person just learning how to
         write C Plus Plus.  I've seen projects come in from my students
         in the undergraduate level, and I would gauge the quality of
         this similar to an undergraduate student just learning C Plus
         Plus for the first time, or maybe only having one semester of
         it.
         BY MR. KITCHEN:
         Q.   Were there any identifying characteristics in that source
         code which indicated its authorship or anything?
         A.   Yes.  On Exhibit 50, on the facing page, two thirds of the
         way down, there are the words copyrighted (C) 1991 by Larry
         James for the Night Owl's CD ROM Publisher, written by Larry
         James.
         Q.   Okay.  How, how were -- what were the characteristics of
         that particular Exhibit 50 which identified it as written by
         possibly an undergraduate or somebody just acquainted with C
         Plus Plus?
         A.   There seemed to be a lot of jumping around.  Typically
         when a program is undertaken, especially one that does quite a
         bit of work, like this one, it's rather well laid out with all
         like functions close to one another, rather than define some
         things, what variables are going to be, then put in an array,
         define some more things, put in another array.  Typically most
         programs put all their defines in one area, all their arrays in
         another area.  And I notice the, the lack of remarks in this
         one.  C Plus Plus is not the easiest language to understand,
         and it's very, very cryptic.  And for me to take a look at
         this, and without studying it for about 10 or 15 minutes, I
         would be hard pressed to analyze what this has done as well as
         hard pressed to analyze what I had done last year.  It's very,
         very cryptic.  And what most programmers do, especially the
         professional ones, they leave long detailed remarks within the
         program so that not only they, but others who look at the
         program later, can identify what is happening in this
         particular portion of the program and if there's any special
         things that need to be considered.
         Q.   Now, when you include long remarks, does that slow down
         the operation of the program at all?
         A.   Not at all.  In fact, most compilers, they just strip
         those right out when the compiling, this translating process
         occurs.  So this does not affect the actual size of the program
         after it's compiled.
         Q.   And, and is there some particular advantage to having the
         remarks and having a, a more easy to understand layout?
         A.   Oh, absolutely.
                   THE COURT:  Less clunky?
                   THE WITNESS:  Clunkiness is in operation, Your Honor.
         As far as having remarks in your program, it would aid the
         person who actually wrote the program later going back to try
         to either fix something that has gone awry, or to add something
         that was missing.
              This person could just go right to the section by looking
         for the remarks, finding out where did we put in the search
         routine, where is this program uncompressed.  If you have long
         remarks or remarks with write space before and after, they're
         very easy to find, they're very quick to find and to fix, other
         than searching and looking haphazardly.
         BY MR. KITCHEN:
         Q.   Okay.  Did you -- now, with regard to 48, with which you
         somewhat compared this, could you tell us, were there any
         identifying authorship or anything on 48 that --
         A.   On the facing page of Exhibit number 48, there's a
         copyright (C) Night Owl's Publisher, 1993, but no name is
         provided.  No individual name.  Just this, I don't know if it's
         a company or a corporation or what.
         Q.   Okay.  How about 49, where does that fit in?
         A.   Here we go again.  Number 49 does essentially the same
         thing as number 50, a few things more.  Number 49 does
         essentially the same thing as --
                   THE COURT:  Was your question about what it does?
                   MR. KITCHEN:  Yes.  Well, let me hone in.
         BY MR. KITCHEN:
         Q.   Is there any identifying characteristics on that
         particular one?
         A.   Okay.  I'm taking a look at Exhibit number 49, the facing
         page.  It says copyright Night Owl Publishers, 1992.
         Q.   No other identification of authorship?
         A.   Underneath it says all rights reserved, but there is no
         name provided here.
         Q.   Okay.  Could you make a comparison of 49 with either 48 or
         50?
         A.   Number 49 also retrieves data from a floppy disk, a hard
         disk or a CD disk, depending upon where it's placed.  It is
         similar in nature to Exhibit number 50.  It does many of the
         same things that number 50 does, Exhibit number 50 does, and 49
         does many of the same things as Exhibit number 48 does.  All
         three of these programs, Exhibit number 48, Exhibit number 49
         and Exhibit 50, retrieve data from a disk.
         Q.   Okay.  By comparing 48, 49 and 50, is it possible to
         determine whether there is similarity enough to suggest that
         one was copied from another?
                   MR. OSTROWSKI:  I would object to that.  I believe
         that calls for a legal conclusion, and --
                   THE COURT:  He may answer yes or no.
                   THE WITNESS:  What was the question again.
                   THE COURT:  The answer means nothing, but he can
         answer yes or no.  Because you got whether or not in there, so
         he says yes, and you don't know whether it's not or whether.
         BY MR. KITCHEN:
         Q.   Well, all right.  Yes.  Just to ask the question again,
         were you able to determine from looking at 48 --
                   THE COURT:  Well, at least this gets to the point of
         the witness' capability.  Are you able to say yes or no,
         whether it was copied.  That's your question?
                   MR. KITCHEN:  Well, no.  That seems to be too close
         to the conclusion, Your Honor, and I --
                   THE COURT:  No, no.  We're getting, we're giving
         Professor Brown a particular status so he can answer the
         particular question, perhaps later.
                   MR. KITCHEN:  Well, yes, but copying seems to be kind
         of an ultimate issue, where an intermediate issue might be
         whether there are, let's say indicia of copying, or signs or
         indicators.
                   THE COURT:  Copying is a word of legal art, you would
         say, whereas taking a picture of something might or might not
         be copying.
                   MR. KITCHEN:  I suppose.  It just seems, gee, Judge,
         we had enough trouble with the real stuff here, and we go in
         off into metaphors, it's really all the worse.
         BY MR. KITCHEN:
         Q.   Anything amongst these programs -- well, let me try again.
         Is there any of these similarities that you noted that would
         indicate that the author of one of these might have copied from
         one of the others?
         A.   Yes.
         Q.   Okay.  What, what have you noted in that regard?
         A.   Exhibit number 49 and Exhibit number 48 use many of the
         same routines.  Not just a few.  Many.  It appears as though 48
         is a spinoff of number 49.
         Q.   All right.  To what extent are either or both --
                   THE COURT:  Let me just back up a little.  You talked
         about copying.  What is, quote, a spinoff, unquote?
                   THE WITNESS:  Many of the same procedures that are in
         Exhibit number 49 appear in Exhibit 48.
                   THE COURT:  And is that what you mean by being a
         spinoff?
                   THE WITNESS:  Yes.  It's a derivative.  It's --
                   THE COURT:  Could have been separately generated and
         having a certain quantum of the same features and consequently
         be, quote, a spinoff, unquote?
                   THE WITNESS:  I don't think separately generated, no.
                   THE COURT:  So they take that aspect of it out when
         you're talking about a spinoff.
                   THE WITNESS:  I don't understand, Your Honor.
                   THE COURT:  I'm trying to understand you.
                   THE WITNESS:  What I'm saying is, number 48 has many
         similarities to number 49.  I think 48 is a modification of 49.
                   THE COURT:  Derived therefrom.
                   THE WITNESS:  Correct.  Derived therefrom.
         BY MR. KITCHEN:
         Q.   Would you relate either 48 or 49 then in the same way to
         50?
         A.   There's no difference.
                   THE COURT:  What?
                   THE WITNESS:  I mean, there's no comparison.  The
         differences are very plain, night and day.  There's no way that
         49 or 48 was derived from number 50.  They are totally --
                   THE COURT:  There is a comparison but there's no --
         a minimum of similarities.
                   THE WITNESS:  There are similarities, Your Honor.
                   THE COURT:  Yeah.
                   THE WITNESS:  Absolutely there are similarities, but
         those again are those narrow areas where there's only one or
         two ways to do something, and yes, there are similarities
         between number 50 and number 49.
                   THE COURT:  But minimized.
                   THE WITNESS:  But minimized.
                   THE COURT:  Thank you.
         BY MR. KITCHEN:
         Q.   Now, in spite of that, the great similarity between 48 and
         49, and the great difference between either 48 or 49 and 50, is
         there going through all of them this, this use of the 001-A,
         001-B kind of directory designation?
         A.   It's threaded through all of them.
         Q.   All right.  Would you regard that as the most significant
         similarity?
         A.   Yes.
                   THE COURT:  I take that to be sort of a signature.
                   THE WITNESS:  All three authors, if there were three,
         or --
                   THE COURT:  I take that to be kind of a signature
         that would tell you an identity or close identity of source?
                   THE WITNESS:  No.  All it says is that these three
         authors use the same structure that somebody initially set up.
                   THE COURT:  Which I guess is not unusual.
                   THE WITNESS:  The 001-A.
                   THE COURT:  No, I mean using what someone else has
         set up as the field is developing.
                   THE WITNESS:  Correct.
         BY MR. KITCHEN:
         Q.   And that one common thread that puts them together, that
         use of the directory headings, 001-A, 001-B, that was existent
         even in the very first disk which was Exhibit 37, correct?
         A.   That is the first place that I could identify it as
         existing, yes.
         Q.   Okay.
         A.   In Exhibit number 38.
         Q.   And by the way, you never saw the source code for that
         particular --
         A.   No.  I'd like to though.
         Q.   Okay.
                   MR. KITCHEN:  I have no further questions.
                   CROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Professor, how many programs have you written?
         A.   In my lifetime?
         Q.   Yeah.
         A.   5,000.
         Q.   Now, is it fair to say that in many of the programs you've
         written you've put in a lot of your own unique creativity and
         expression?
         A.   No.
         Q.   No?
         A.   No.
         Q.   Any of the programs you've written?
         A.   Yes.
         Q.   What percentage of the programs you've written is it fair
         to say are substantially unique with you or original with you?
         A.   5%.
         Q.   5%?
         A.   Yes.
         Q.   So it is possible to write a computer program that is
         original in expression.  By that I mean the expression in the
         source codes?
         A.   Yes.
         Q.   Now, is it, as far as the entire computer programming
         field, does this 95% statistic of your own programs, does that
         carry over, in other words, are 95% of all programs essentially
         scut work in the sense that there's only one way to do it or
         only two ways to do it?
                   THE COURT:  Scut work?
                   MR. OSTROWSKI:  I'm sorry.  Colloquialism, Your
         Honor.
                   MR. OSTROWSKI:  Can any program --
                   THE COURT:  I don't mind them as long as I know what
         they mean.
                   MR. OSTROWSKI:  Like the record on appeal I prepared
         over the last week, numbering each page and labelling the
         documents.  Took me about five days.  That's scut work.
         BY MR. OSTROWSKI:
         Q.   Is it fair to say that 95% of all computer programs are
         not really significantly original?
         A.   No.  That's not fair to say.
         Q.   Well, what percentage of all computer programs that you've
         ever heard or seen are original compared to those which are
         sort of forced on you by the limited nature of the language
         that you're using?
         A.   In industry I see this benchmark being bantered about.
         When professional programs for hire at manufacturers, at health
         care systems, are writing programs, they typically tell me 75%
         of what they do is just fixing people's old programs or adding
         things to existing programs and they tell me that only 25% of
         what they do is new.
         Q.   Okay.  So, well, you think it's fair to say then that
         about 25% of all computer programs are significantly original
         with the author?
         A.   Yes.
         Q.   And the others are programs in which either there's only
         one or two ways to do it or everybody sort of already knows
         what the way to do it is because this is common knowledge?
         A.   Correct.
         Q.   So it would be sort of public domain material?
         A.   Not public domain material.  We have to be careful here,
         when we say public domain.  Public domain means that anybody
         can use it without giving any kind of credit or --
         Q.   Okay.
         A.   -- seeking any kind of permission from the author.  There
         are, there are routines that are copyrighted.  You must secure
         permission from the author in order to use this particular way
         of doing things.  It is so unique that you must secure
         permission from the author in doing so.  However, that is less
         than 1/10 of 1% of the routines that are available.  That is
         very unusual.
         Q.   I guess I was using public domain as a legal term and you
         were answering it as a market term, I did, it was a confusing
         question.  Now, just to go over some of the ground you covered.
         You did your analysis of the four CD ROM Exhibits, 37 through
         40, that, basically simply as a user evaluating them,
         functionally?
         A.   Correct.
         Q.   You didn't look at the source codes except for 40?
         A.   I don't know for a fact I looked at the source code for
         40.  All I stated was that it works just like 40 does.  I don't
         know for a fact that is the source code for 40.
         Q.   But the, the fact is that you, you analyzed the similarity
         between the four CD ROM's, 37 through 40 --
         A.   Correct.
         Q.   -- simply as a user would?
         A.   Yes.
         Q.   And therefore, you did not take into account similar
         source codes?
         A.   They were not available to me.
         Q.   Okay.  But you didn't take them into account?
         A.   Correct.
         Q.   And you didn't do any structural analysis of the program
         itself from the source codes?
         A.   No.  They were not available.
         Q.   I know that.  I'm obliged to ask you anyway.  Did you do
         a organizational flow chart of any of those programs?
         A.   Only in what screens came up, what options were available
         and what the screen showed when you selected those particular
         options.  Again, if I were provided the source code I would do
         such.
         Q.   Now, the source codes that you looked at, and you looked
         at three of them, correct?
         A.   Yes.
         Q.   They don't have any table of contents in them, do they?
         A.   No.
         Q.   The table of contents that you testified about with
         respect to the CD ROM's, what appears on the screen, that
         doesn't come from the source code of the file retrieval
         program, does it?
         A.   No.
         Q.   Okay.  So when you say you did, you did some sort of an
         organizational flow chart of what appeared on the CD ROM
         screen, you didn't do a flow chart of the computer programs
         themselves, did you?
         A.   No.
         Q.   Did you analyze their -- do you know what a module is?
         A.   Yes.
         Q.   What is it?
         A.   A module is a section of a program that typically does one
         and only one particular task.
         Q.   Okay.  And with respect to these, the four CD ROM's, 37
         through 40, did you look at the functions of the modules in a
         program?
         A.   Yes.
         Q.   Together with each module's relationships to the other
         modules?
         A.   Yes.
         Q.   You did.  Okay.  But you didn't see the source code of the
         program?
         A.   Did not.
         Q.   Okay.  Now, just to go over the issue of these dates
         again, I believe you stated that if the battery runs out, a
         date could be off by a day or two?
         A.   It could --
                   THE COURT:  Up to 10 days.
                   THE WITNESS:  Up to 10 days.
                   MR. OSTROWSKI:  Okay.
                   THE WITNESS:  Depending upon that.
         BY MR. OSTROWSKI:
         Q.   Now, isn't it true that you could just get on a computer
         and change the date to any date that you want?
         A.   Correct.
         Q.   Like, you know, 1492?
         A.   No.
         Q.   No?
         A.   Cannot.
         Q.   Okay.  1967?
         A.   Cannot.
         Q.   You can't?
         A.   Cannot.
         Q.   Okay.  Well, why not?
         A.   In the ROM itself, I'm using a technical term, inside the
         computer there are various chips, if you will.  There is one
         type of chip called an R-O-M, random -- excuse me, read only
         memory, that is sealed at the --
                   THE COURT:  Excuse me.  Random what?
                   THE WITNESS:  Read only memory, that's permanently
         sealed at the factory.
                   THE COURT:  R-O-M, I see.
                   THE WITNESS:  That cannot be changed.  In most of the
         PC's that I'm familiar with, when the date comes up, if you do
         not provide a date, it starts at January 1, 1980.
         BY MR. OSTROWSKI:
         Q.   Okay.  So with, anywhere from January 1, 1980 to, I would
         think, what, past the year 2000?
         A.   Exactly.
         Q.   You could put in any date you want?
         A.   Yes.
         Q.   And then you could print out any number of documents which
         have the incorrect date?
         A.   Yes.
         Q.   Okay.
                   THE COURT:  So you can put in, you have a choice of
         dates in the future, but you're limited as to past dates?
                   THE WITNESS:  No.  You can go into the past if you
         want, Your Honor.  Anything from 1980 to unlimited.  You could
         put in any date you want into the computer.
                   THE COURT:  But not before 1980?
                   THE WITNESS:  Not before 1980.
         BY MR. OSTROWSKI:
         Q.   Now, Exhibit 37, the CD ROM, does that contain a file
         retrieval program?
         A.   Yes.
         Q.   How would you define a file retrieval program?
         A.   Clunky.
         Q.   I'm sorry.  You misunderstood my question.  How would you
         define a file retrieval program?
                   THE COURT:  Generically?
                   THE WITNESS:  Okay.  It is a program that displays a
         list of files that are available for retrieval and allows the
         user to identify the one that he or she wants to retrieve,
         either by pressing down arrows or up arrows or pressing a
         number or highlighting it, any number of different ways,
         clicking a mouse on that particular item, and then after
         identifying it, either press R for retrieval or enter to
         confirm your choice.
              The file retrieval program will then go to wherever the
         source is, whether it's a floppy disk, a hard disk, or CD ROM,
         and copy that program, perhaps extract, decompress that
         program, onto what's called a target, again being either a
         floppy disk or a hard disk.
                   THE COURT:  Decompress.  Now what's that mean?
                   THE WITNESS:  To save space on a disk there is a
         process called compression that looks for reoccurring patterns.
         For example, if you had the followed by T-H-E-I-R, rather than
         store T-H-E, space, T-H-E-I-R, it would store T-H-E and put a
         2 after it, or some kind of token to say that T-H-E is used
         twice, only store it once, save space.
                   THE COURT:  T-H-E-2-I-R?
                   THE WITNESS:  Something like that.  To save space.
         Now, there are various compression techniques that are used.
         Probably the most familiar one is put out by PK Ware, called
         ZIP.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, according to the definition you just gave,
         does Exhibit 37, which is PDSI-002, contain a file retrieval
         program?
         A.   I believe so, yes.
         Q.   Isn't it true that you have to exit the program in order
         to retrieve the file?
         A.   No.  You do not exit the program.  You temporarily suspend
         the program so that you can go out and type PK.UNZIP, space,
         name the program that you want to.
         Q.   Well, when you say go out, are you in or out of the
         program?
         A.   You have suspended the program.  You are still within the
         control of the master program, of the retrieval program.  You
         have not left the program.  It is still inside the computer.
         You have temporarily suspended it.
         Q.   Okay.  And where are you when you go out of the program?
         A.   You are in a very limited area inside the computer.  It's
         called below hi-mem.
                   THE COURT:  Below what?
                   THE WITNESS:  Hi-mem.  H-I-M-E-M.  Inside your
         computer there is a storage area approximately 650,000
         characters.  When you load your program in you use up part of
         that 655,000 characters, in this case approximately 50,000.  So
         there is only 60,000 characters left.
              You also have to load in your operating system, which was
         done, so after everything is all said and done, there might
         only be like 200,000 characters left between the hi-mem and the
         first available usable space.  When you shell out, that's
         typically where you would go.  You would go to this unused
         area.  Then when you were done with it, you would type the word
         exit and it would take you to that exact point where the
         program was suspended.
         BY MR. OSTROWSKI:
         Q.   Okay.  But --
                   THE COURT:  That was behind or beneath or what, the
         hi-mem?
                   THE WITNESS:  The hi-mem.
                   THE COURT:  No.  What was that thing before it?
                   THE WITNESS:  When you --
                   THE COURT:  Behind, below?
                   THE WITNESS:  When you --
                   THE COURT:  Under?
                   THE WITNESS:  Hi-mem is the absolute highest memory
         that you can use.
                   THE COURT:  I know.  You use something before that
         though.
                   THE WITNESS:  Yes.  So it would be under.
                   THE COURT:  Oh, under.  Under hi-mem.
                   THE WITNESS:  Past the end of your program.
                   THE COURT:  Before you may have said beneath?
                   THE WITNESS:  Correct.
                   THE COURT:  Okay.
         BY MR. OSTROWSKI:
         Q.   Well, when you go out of the program --
         A.   No.  You don't go out of the program.  You're still --
         Q.   Well, I'm using your --
         A.   -- under control of the program, you do not go out.
         Q.   Well, I believe you used the word out.  Are you saying you
         didn't use the word out?
                   THE COURT:  He said, he did say go out.
         BY MR. OSTROWSKI:
         Q.   Was that incorrect?
         A.   Yes.
         Q.   So you're in the program?
         A.   But it's suspended at this point in time.
         Q.   Now, when you, when you turn on a typical personal
         computer, IBM compatible, and the machine -- well, what happens
         when you turn it on?
         A.   When you turn a computer on, inside the computer again
         there is another ROM chip, read only memory, that does some
         diagnostics.  First your circuits are checked for integrity.
         All your RAM circuits are checked for integrity as well as
         parity.  Then the expansion slots are inventoried to see
         whether you have an A drive, a B drive, a C drive, a printer
         card, a serial card, a modem card, whatever.  Then your first
         disk drive is turned on, looking for the disk operating system
         programs.  If it finds the programs that it's looking for, the
         disk operating system programs, those --
                   THE COURT:  You merely turned it on, but already the
         computer is looking for programs?
                   THE WITNESS:  Yes.  It's looking for a disk that has
         the disk operating system programs on them.
                   THE COURT:  You've just thrown an on-off switch and
         it's doing this?
                   THE WITNESS:  Yes.
                   THE COURT:  Go ahead.
                   THE WITNESS:  It looks on the first disk it finds for
         the disk operating system programs.  Then this ROM chip copies
         the programs that it finds on the disk into the RAM chips,
         turns control over to those programs.  If you've ever
         inadvertently left a floppy disk in your A drive and you turned
         your computer on, you may get this message, non-system disk.
         This is because it's looking for the programs and it can't find
         it.
         BY MR. OSTROWSKI:
         Q.   If everything goes well, what, what do you see on the
         screen?
         A.   Depending upon which disk has the operating systems
         programs, you'll probably see either the A prompt, if it was in
         the floppy drive, or the C prompt, if it was the hard drive.
         Q.   And when you see, let's say a C prompt, does that mean
         you're in DOS?
         A.   Yes.  You're under control of the operating system
         program.
         Q.   Is it fair to say that you're in DOS?
         A.   You're under -- no.  That's not fair to say.
         Q.   Is it fair to say that you're out of DOS.
                   THE COURT:  Got another message.
                   THE WITNESS:  No.  That's not fair to say.
         BY MR. OSTROWSKI:
         Q.   So you're neither in nor out of DOS?
         A.   Correct.
         Q.   Now, when you -- in CD ROM 37, when you go out or whatever
         you do, do you see a C prompt or a B prompt or an A prompt,
         depending on what drive you're using?
         A.   Yes.
         Q.   And does that screen look exactly like the screen that
         happens when you turn on the computer and everything goes okay?
         A.   If the person who wrote the program left you no
         instructions, yes.
         Q.   You see a C prompt though.  Let's say we're talking C
         drive.  You see a C prompt when you turn on the computer if you
         got a hard disk?
         A.   Yes.
         Q.   And you may see a C prompt when you go outside of the
         program of, on the disk 37, Exhibit 37, is that correct?
         A.   You'll see other things, but you will see a C prompt, yes.
         Q.   And if you have a C prompt when you open up the, when you
         start up the computer and then you have a C prompt when you're
         working with the program of Exhibit 37, isn't it fair to say
         that you have access to all the DOS commands?
         A.   Yes.
         Q.   And isn't it fair to say that in CD ROM 37 it's DOS that
         does the work of retrieving the file?
         A.   Yes.
         Q.   Okay.  And isn't it fair to say that if you had no file
         retrieval program whatsoever, you could retrieve files with
         DOS?
         A.   Yes.
         Q.   Now, Exhibit, Exhibits 38 through 39, is it fair to say
         you don't have to leave -- well, you don't need DOS directly to
         retrieve files?
         A.   No.
         Q.   No, you don't need DOS.  Just --
         A.   Would you read the question again, please.
                   THE COURT:  Not that question, one that can be --
                   MR. OSTROWSKI:  It's a confusing question.
                   THE COURT:  One that can be definitively answered.
         BY MR. OSTROWSKI:
         Q.   Do you need, do you need DOS to retrieve files -- well,
         does the user have to access or use DOS in any way to retrieve
         files under, with Exhibits 38 through 40?
         A.   The user does not have to type anything, no.
         Q.   Okay.  Now, speaking of typing, in 37 you have to -- not
         only are you using DOS but you got to do a little bit of
         typing, right?
         A.   Correct.
         Q.   And in the other programs it's a little simpler?
         A.   Yes.
         Q.   Okay.
                   THE COURT:  What was the Exhibit you compared there?
                   MR. OSTROWSKI:  I'm sorry.
                   THE COURT:  34?
                   MR. OSTROWSKI:  We're comparing 37 with 38 through
         40.
                   THE COURT:  Oh.  I thought you used another number.
                   MR. OSTROWSKI:  I'm sorry.
         BY MR. OSTROWSKI:
         Q.   Are you being compensated for being here, I hope?
         A.   I haven't received a penny.
         Q.   Okay.  You're doing it out of the --
                   THE COURT:  You have some arrangement?
                   THE WITNESS:  None.
         BY MR. OSTROWSKI:
         Q.   Do you know Richard Graham prior to this lawsuit?
         A.   No.
         Q.   You're a full time professor?
         A.   Yes.
         Q.   Okay.  Were you -- what would your normal duties be on a
         day like today?
         A.   Today I would probably have either two or three classes,
         and if this were a Monday, Wednesday, Friday class I would be
         teaching a group of students how to program using the Basic
         language.
         Q.   Now, how far is your college from Buffalo?
         A.   About 90 miles or so.
         Q.   Okay.  You just came up --
                   THE COURT:  All down hill.
                   THE WITNESS:  No.  It was a quite pleasant drive.
                   THE COURT:  I was raised in Jamestown.
         BY MR. OSTROWSKI:
         Q.   Do you anticipate being compensated at any point?
         A.   I would hope so.
         Q.   Okay.  So --
                   THE COURT:  This is a loose arrangement, both as far
         as your preparation for testifying, and for testifying?
                   THE WITNESS:  I feel this is the right thing to do.
         We have a question of copyright here.  I work at a church
         affiliated university where we stress ethics and we tell our
         students to do the right, the moral, the ethical thing.  I feel
         that by my appearance here, if I can lead credence to either a
         copyright infringement or non-copyright infringement, this is
         the moral, ethical thing to do, whether I get compensated or
         not.
         BY MR. OSTROWSKI:
         Q.   Okay.  You never met Mr. James before, have you?
         A.   Who?  Oh, this Larry James here?
         Q.   Yes.
         A.   No, I don't.  Is that him?
         Q.   Okay.  And you didn't know Mr. Graham?
         A.   I met him this morning when I first came in the door.
         Q.   So you don't know anything about the ethical character of
         either party?
         A.   No.
         Q.   Okay.  Was it your testimony that you, you've never seen
         a breakdown of data that proceeded 1, 2, 3, 4 and then would
         subdivide, each number being subdivided A, B, C, D, et cetera?
         A.   No.  I've never seen that before.  I've seen things
         similar, but not like this.
                   THE COURT:  How similar?
                   THE WITNESS:  For example, if we were doing something
         on communications, I'd see a comm, C-O-M-M 1, C-O-M-M 2, C-O-M-
         M 3.  That's pretty standard stuff.
                   THE COURT:  No alphabets?
                   THE WITNESS:  No.  I have not seen that.
                   THE COURT:  With what church is your college
         affiliated?
                   THE WITNESS:  It's with the Roman Catholic Diocese of
         Erie.
                   MR. OSTROWSKI:  Can I just see these Exhibits?
                   THE WITNESS:  Sure.
         BY MR. OSTROWSKI:
         Q.   Now, you received these Exhibits from Mr. Graham?
         A.   Correct.
         Q.   Do you have any other notes, by the way --
                   THE COURT:  What, 37 through 40?
                   MR. OSTROWSKI:  Yes, Your Honor.  I'm sorry.  Well,
         no, I'm saying 50 through -- 48 through 50, specifically.
         BY MR. OSTROWSKI:
         Q.   You received these from Mr. Graham?
         A.   Correct.
         Q.   Was there ever, was there a cover letter involved with the
         letter, with the mail?
         A.   No.  The disks were inside.  The only reason I knew they
         were from him is I saw the return address on the outside of the
         Federal Express.
         Q.   Okay.  Other than receiving them from Mr. Graham, in your
         comparison of Exhibit 50 with Exhibits 39 through -- I'm sorry,
         38 through 40, you don't have any knowledge about where these
         things came from, do you?
         A.   No.
         Q.   Or what other program, what other CD ROM they might be on?
         A.   I did a comparison of some of the later Night Owl's, and
         I was somewhat confused which program went with which CD.  I
         wasn't quite sure which program was associated, whether 50 was
         associated with number 5.  Night Owl number 5, it's not an
         Exhibit here.  Whether 50 was associated with Night Owl number
         6.  That's not an Exhibit here.
         Q.   Okay.
         A.   I couldn't tell you, no.
                   THE COURT:  Without there being any covering letter,
         did you have some earlier communication by telephone with Mr.
         Graham?
                   THE WITNESS:  That he was going to send a disk, yes,
         and that he asked for my address at Gannon University, yes.
                   THE COURT:  Was that the totality of the conversation
         that led to your getting these three Exhibits?
                   THE WITNESS:  I asked him what this was about.  He
         said there is some litigation in Buffalo, New York that I may
         need your expert help on.  And I asked him, what was it about,
         and he said there was a copyright infringement case coming up.
         He said something about a plaintiff-defendant.  I said, how
         could you be both.  I didn't really understand what it was
         about.  He asked me to review these two and testify as to
         whether they were the same or dissimilar.
                   MR. OSTROWSKI:  Your Honor, could we take a recess at
         this point?
                   THE COURT:  Of course.
                   MR. OSTROWSKI:  I have more material that --
                   THE COURT:  Of course, yes.  We'll take a 10 minute
         recess.
                   MR. OSTROWSKI:  Thank you, Your Honor.
              (Recess taken.)
                   CONTINUED CROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Did you make any other notes of your investigation, other
         than the notes that appear on Plaintiff's number 45?
         A.   You mean on this one?
         Q.   Yeah.
         A.   Only for identification purposes.  On those other
         Exhibits?
                   THE COURT:  Or relative to them.
         BY MR. OSTROWSKI:
         Q.   Well, what did you do, write your initials on them or
         something?
         A.   No.  That's my handwriting.
         Q.   I'm saying notes which have details of your conclusions?
         A.   No.
         Q.   Okay.  So that's your only note there?
         A.   Yes.
         Q.   In any sort of detail analyzing the programs?
         A.   Yes.
         Q.   Okay.  And there are no other notes?
         A.   Only what you see on the other Exhibits.
         Q.   Well, showing you Plaintiff's Exhibit 43, are there any
         notes which detail your conclusions or are they just to
         identify the document?
         A.   They're for identification purposes.
         Q.   Is that true on the other --
         A.   Exhibits?
         Q.   -- printouts, other Exhibits which print out the screen?
         A.   Yes.
         Q.   On the CD ROM?
         A.   I believe so.
         Q.   Now, I believe you stated that you did a analysis of the
         modules in -- Professor, did you do a modular -- analysis of
         the modules in the CD ROM's?
         A.   Yes.
         Q.   The file retrieval program, for all four?
                   THE COURT:  All four what?
                   MR. OSTROWSKI:  All four, from Plaintiff's 37 to --
                   THE COURT:  40.
                   MR. OSTROWSKI:  -- 40.
                   THE WITNESS:  No.  I did not do an individual
         analysis of each one.  Number -- Exhibit number 39 and Exhibit
         40 appear to be almost identical, if not identical.  I couldn't
         discern much differences between those two.
         BY MR. OSTROWSKI:
         Q.   What I'm saying is, did you do an analysis of the modules
         of each of the -- of the file retrieval programs on each of
         these CD ROM's, 37 through 40?
         A.   Yes.  Not -- let me check.  I have some screen printouts
         here from Exhibit number 37.
         Q.   Okay.  And --
         A.   And Exhibit number 40, I believe.  But not number 38 and
         not number 39.
         Q.   Okay.  You're looking at Plaintiff's Exhibit 45?
         A.   Correct.
         Q.   Are you saying it's an analysis of modules?
         A.   Only screens that show me what each module does and what
         appears on the screen within the modules.
         Q.   Can you show me an example of what you're talking about,
         show the Court?  On Plaintiff's 45.
         A.   On Plaintiff's number 45, sheet 2, at the bottom of the
         page, where I have it marked Exhibit number 2, this is the
         screen that appears on the computer screen when I use Exhibit
         number 37.
         Q.   Okay.  And where is there a module on there, if there is
         one?
         A.   This first module is where a module is a section of the
         program that usually does one particular item.  This would be
         the item where you selected the area that you would like to
         explore.  For example, looking at this item marked number 1 is
         if you'd like to explore communications kind of programs.  Item
         2 are the games, et cetera.  There's like 38 of them to select
         from.  This would be a module.
         Q.   Well -- let me move this.  Tony Bennett again.  Are you
         saying that item 1, communication, on page 2 of 45 is a module?
         A.   No.  What I'm saying is, the display of this screen that
         puts the data on the screen, that allows the user to select, is
         a module.  Once the user picks number 1 another module will
         come into play that shows you what is available in just the
         communications area.  Once you highlight or select the option
         that you want within communications, a third different module
         would then extract the data or copy it or whatever.
         Q.   And what, what exactly is a module?
         A.   A module is a portion of the program typically designed to
         accomplish one particular task.
         Q.   And when you say it's a portion of the program, does that
         mean that it's in the source codes?
         A.   It's both in a source and the object codes.  One in
         English readable form and one in computer executable form.
         Q.   Well, for Plaintiff's 37 through 39, you didn't see the
         object code, did you?
         A.   No.  All I saw was the effects of running the object code.
         The object code would mean nothing to me.
         Q.   And you didn't see the source codes of 37 through 39?
         A.   Correct.
         Q.   And you're saying that you can analyze the similarity of
         modules without looking at the source codes?
         A.   How they work.  Absolutely.
         Q.   For example, you could compare Word Perfect software with,
         word processing program with McIntosh or Word, which is
         different from Word Perfect, without looking at the source
         codes?
         A.   If you're ask -- now, I'm going to have to qualify this
         answer.  If you're asking me, do these programs do the same
         thing, yes.  I can testify that these programs do the same
         thing.  When you press number 1, you will get a selection of
         communications programs, on both, on any of these.
         Q.   Well, any of these, specify, please.  Are you talking
         about the four CD ROM's?
         A.   Exactly.
         Q.   Okay.
         A.   When you press number 1, 1 signifies communications, you
         physically press down on the 1, you will see a screen of
         communication programs.  However, what instructions the author
         gave to cause that to happen, were those identical?  I cannot
         testify to that.
         Q.   Okay.  Well, that's, that's all I wanted to know.  Now,
         with respect to displaying the table of contents, the opening
         screen with all the different categories, how many different
         ways of doing that would there be in the source code?
         A.   I can think of three or four.
         Q.   There's three or four?
         A.   Yes.
         Q.   And is it possible that others could think of other ways?
         A.   Others could come up with five or six, if hard pressed,
         yes.
         Q.   Now, you stated that Plaintiff's Exhibit number 50, there
         was some jumping around in the source code.  You did look at
         the source code for 50, didn't you?
         A.   Yes.
         Q.   And you don't have any notes on that, do you?
         A.   No.
         Q.   How long did you look at it?
         A.   Seven hours, total.
         Q.   You looked at the one, Plaintiff's 50, for seven hours?
         A.   Yes.
         Q.   And is it fair to say that there's a lot of jumping around
         in that program?
         A.   Many programs will jump around, including number 49 and
         50.  However --
         Q.   Well, what I'm asking you is, is there jumping around in
         Plaintiff's 50?
         A.   Yes.
         Q.   Okay.  Could you give us some examples?
         A.   On sheet 1 of Exhibit number 50, he is identifying various
         variables that he's going to be using through his program.  He
         has some integer defined variables.  Then he goes into
         character defined variables.  And he's defining the contents of
         what's called an array.  The definition of this array continues
         on page, on sheet 2 of Exhibit 50, continues on sheet 3 of
         Exhibit 50.  Then it goes back to defining more variables that
         it will be using in a program.  So he's declaring simple
         variables, declaring arrays, and then going back to declaring
         other simple variables.  Now, these other variables, some of
         them are simple and some of them are pointers, and some of them
         are arrays.  If I were doing it, and if you compare it to other
         programs that are recognized --
                   MR. OSTROWSKI:  Well, I object as non-responsive,
         Your Honor.  I'm simply asking about jumping around.
                   THE COURT:  All right.  Instruct the witness in your
         question.
                   THE WITNESS:  He jumped from defining simple
         variables on sheet 1.  Then he jumped to defining character
         arrays on sheet 2 and 3.  Then he went back to defining more
         simple variables on page 3.
         BY MR. OSTROWSKI:
         Q.   Now, does that jumping around affect the efficiency of the
         program?
         A.   No.
         Q.   Would you say that jumping around is one of the ways in
         which a programmer expresses his own particular way of
         programming?
         A.   Maybe.
         Q.   Have you ever seen that?
         A.   Yes.
         Q.   Any other -- okay, any other examples of jumping around?
         A.   I would have to examine a code more closely to give those
         examples.  What I did was I compared Exhibit number 50 --
                   MR. OSTROWSKI:  I would object to the answer as not
         responsive.  Are you saying that there are no other --
                   THE COURT:  Want him to answer yes or no?
                   MR. OSTROWSKI:  Well, he just started answering
         another question I didn't ask.
                   THE COURT:  Well, I don't know.  You've got to
         control the witness.  You want him to answer yes or no, you so
         instruct him.
                   MR. OSTROWSKI:  Well --
                   THE COURT:  If he can't so answer, he'll tell you and
         you go on from there.
                   MR. OSTROWSKI:  He's an expert.  I don't want to
         confine him to yes or no.  I just want him to --
                   THE COURT:  Well, I don't know what you want to do
         with him.
                   MR. OSTROWSKI:  I asked him if -- Your Honor, I'll
         ask him again.
         BY MR. OSTROWSKI:
         Q.   Did you find any other examples of jumping around?
         A.   Yes.
         Q.   Yes or no.  Okay.  And what was the next one you found?
         A.   I would have to spend some time to follow his logical flow
         here.  If you have the time I will examine it and cite the next
         example.
         Q.   Well, how much time would it take?
         A.   Four or five minutes.
         Q.   Would you be able to look at the whole program and get all
         the examples of jumping around in some reasonable amount of
         time?
         A.   Probably within an hour or so, yes.
         Q.   Well, let me ask you this.  Did any of these other
         examples of -- well, let me ask you this.  After looking at the
         program for seven hours, none of the other examples of jumping
         around are fresh in your memory, is that correct?
         A.   Correct.
         Q.   And is that because none of them are particularly
         important in affecting the efficiency of the program?
         A.   No.  The -- as a matter of fact, the program works.
         Q.   Do any of the examples of jumping around affect the
         efficiency of the program?
         A.   No.
         Q.   Okay.  Now, with respect to -- I believe you stated that
         there is very little documentation in the program?
         A.   Correct.
         Q.   Does that affect the efficiency of the program?
         A.   No.
                   THE COURT:  Excuse me.  Very little what, Mr.
         Ostrowski?
                   MR. OSTROWSKI:  I asked him if the lack of
         documentation --
                   THE COURT:  Lack of documentation.
         BY MR. OSTROWSKI:
         Q.   Documentation is the programmer's notes to himself, or to
         users.  But actually, isn't it correct that on these CD ROM's
         you can't see the source codes in any event?
         A.   Correct.
         Q.   Okay.  Now, is there any reason, any reason why a
         programmer would not put extensive documentation in a program?
         A.   One, if it's clear to the programmer what's going on,
         there is no need for documentation as to what's going on.  For
         example, he has a module here called C-L-R-S-C-R.  That's
         obvious.  It's clear the screen.  No documentation is required.
         Q.   But this, I believe you stated that this particular
         program is very difficult to follow?
         A.   Yes.
         Q.   So that would not -- that explanation for not putting
         documentation would not apply to this program?
         A.   For some of the modules that are very self-explanatory, no
         documentation is really necessary.  However, it's advisable but
         not necessary.
         Q.   Well, is there any reason why -- is there any other reason
         why a programmer would not put extensive documentation in a
         program?
         A.   Number one, so if he or she knew that, what was going on
         that particular module or had particular experience with that
         module, there would be no need because here she is familiar
         with it.  Number two, if a person feared that somebody else
         would attempt to either use portions of it, they may leave out
         very important documentation that would help somebody else who
         had intentions to maybe copy it.
         Q.   Okay.  And is it your experience that copying of programs
         is fairly common in the computer industry?
         A.   I'll exist -- it exists.  I won't deny that.
         Q.   So it's not an unreasonable precaution not to put
         documentation in a program?
         A.   It's highly unusual, but it's done.
         Q.   What I asked is, it's not unreasonable in light of the
         prevalence of copying to do, to omit that?
         A.   I don't think there's a prevalence of copying.
         Q.   Okay.  Now, I believe you stated that, when asked for your
         opinion of the quality of the program, which you stated was
         that of an undergraduate?
         A.   Yes.
         Q.   You gave examples, lack of documentation and lack of --
         or, I'm sorry, the presence of jumping around?
         A.   Yes.
         Q.   Okay.  Neither of those affect the efficiency of the
         program?
         A.   Correct.
         Q.   And certainly don't affect -- the user doesn't know
         anything about them?
         A.   Correct.
         Q.   Okay.  Are you familiar with BBS's?
         A.   Yes.
         Q.   And what does that stand for?
         A.   B stands for bulletin, the second B stands for board.  S
         stands for services.
         Q.   And what exactly is it?
         A.   It is typically a private individual who has set up his or
         her own computer for the use by other computer users through
         telephone modems.
         Q.   And is there something like an opening menu screen in a
         typical BBS?
         A.   A typical menu screen?
         Q.   Well, are there menu screens on BBS's?
         A.   Yes.
         Q.   Have you ever seen any that look like the menu screens of
         the four CD ROM's, 37 through 40?
         A.   Similar in respect if they're numbered, or similar that --
         Q.   Similar in the respect that they have general categories
         within which there are further sub-categories?
         A.   Yes, I've seen that.
         Q.   How many times have you seen that?  Different kind, not
         the same one a number of times, but how many different BBS menu
         screens have you seen that have that type of opening screen?
         A.   Six, seven, eight.  A majority of them.
         Q.   Now, did you do a analysis of the modules of Exhibits 48
         through 50?
         A.   Yes.
         Q.   And that does not appear in writing anywhere, does it?
         A.   No.
         Q.   And did you do an organizational flow chart for Exhibits
         48 through 50?
         A.   No.
         Q.   Wouldn't you have to do that to fully understand a program
         structure?
         A.   No.
         Q.   Would it help?
         A.   To an inexperienced person, absolutely.
         Q.   Or to perhaps -- strike that.  It would help somebody who
         is not an expert in computers to understand the nature of a
         program, whether it's similar to another program?
         A.   Absolutely.
         Q.   Okay.  But you didn't do that?
         A.   No.  It was not necessary.  I've seen probably 20-30,000
         programs in my lifetime.  I know what to look for.  And I can
         see, I can spot similarities very rapidly, or I can spot
         differences very rapidly.
         Q.   Did you do an analysis of the parameter lists?  Do you
         know what that is, by the way, parameter list?
         A.   Parameter lists that are passed when you call the program,
         in that form of parameters?  Are you talking about parameters
         that are specified when a module is called?  Which use of
         parameters are you talking about?
         Q.   I'm talking about the term, parameter list, which refers
         to the form in which information is passed between modules?
         A.   Okay.  There are -- when you first start Night, you have
         some options.  These are also called parameters.  You have the
         option not to install Night.  This is also a module.  This is
         also a parameter that is passed very initially before anything
         starts.  Yes.  I did, I did take a look at how the parameters
         are passed, both by reference and by value.
         Q.   And does that appear in writing anywhere?
         A.   No.
         Q.   Okay.  With respect to -- strike that.  What can you tell
         us about the modules in Plaintiff's 50?  You stated that you
         analyzed --
                   THE COURT:  Which Exhibit?
                   MR. OSTROWSKI:  Pardon me?
                   THE COURT:  Which Exhibit?
                   MR. OSTROWSKI:  Plaintiff's 50, Your Honor.
                   THE WITNESS:  Any one in particular?
         BY MR. OSTROWSKI:
         Q.   No.  Whichever one strikes your fancy.
         A.   The -- on sheet 4 of Exhibit 50 is the main module.  We'll
         start there.  It's the beginning.
         Q.   What's that called, if anything?
         A.   It's called the main module.
         Q.   And what does that module do?
         A.   That is the first module that must exist in every C
         program.  The main module will accept two parameters in
         passing, number one being the number of parameters that are
         being passed, and number two, if I remember correctly, a
         pointer to the array that has any additional parameters passed
         to it.
         Q.   Is that your description of what that, the main module --
         main --
         A.   That's what the word main does.  Now, after this --
         Q.   What's, is it called INT, I-N-T, space, main, and then a
         bunch of other letters in parentheses?
         A.   No.  The module's called main.  The INT in front of it
         describes what kind of return value it will give.  In this case
         it's going to return an integer value --
         Q.   And --
         A.   -- after the module has been completed, or after the
         module has been exited.
         Q.   The use of that INT function, is that a function?
         A.   That is a variable declaration, telling it what kind of
         variable it is.  It's going to be an integer value.
         Q.   Well, with respect to that I-N-T function or whatever you
         want to call it, is it common for a program to have that?
         A.   Oh, absolutely.  I'd be surprised if it didn't.
         Q.   Okay.  Why would you be surprised if it didn't?
         A.   All modules, when defined, must be defined as to what kind
         of return value it's going to give, even if it's void.  If a
         module does not return a value, it must be assigned a void
         type.
         Q.   Okay.  And what, I'm not sure if you told us what main,
         the main module does.  If you did, I didn't understand it, but
         were you -- you were talking about parameters.  Is that what
         main does?
         A.   No.  The first part of main accepts any parameters when
         you type Night.  When you type Night it starts this main
         module.
         Q.   Okay.  And what does the main module do?
         A.   The first thing it does is it checks to see if any
         parameters, any optional parameters were given.  For example,
         when you run this Night, you have the option of saying, not, no
         install, and it actually checks for that several lines down a
         little bit later.  It's checking to see if N-O-I was given as
         one of the optional parameters.  If the answer was yes, it does
         one set of actions.  If the answer was no, it does a different
         set of actions.
         Q.   Okay.  What else does the main module do?
         A.   It comes down here and it tests the color function and it
         gives a log-on message, says welcome to file data base manager.
         And this window, I don't see that defined.  I don't know if
         that was one of the library functions that were included at the
         beginning or not, but it looks as though it's setting up a
         window at coordinates 2-2.  2 being two lines from the top, 2
         being lines in from the left border.  Down to, or over to
         column 70, 24 lines from the top.  So it's using up just about
         all of the screen here.
         Q.   Okay.
         A.   Then it's clearing the screen, and he uses the function,
         C-L-R-S-C-R, so it will jump to the function and this is a very
         legitimate jump in this case, to clear the screen, so that
         whatever was in the window is now erased, and he starts with a
         clear screen.
         Q.   Is there anything else that it does?
         A.   Then it jumps to the start module, further on in the
         program.
         Q.   Why does it do that?
         A.   Obviously to start it.
         Q.   Does it do anything else?
         A.   I would have to see what happens in start.  Start might be
         very short or very small, and it might just come back and
         change some value, or put some different color on screen, or
         start might do something very long.  I would have to find the
         start function in this program to find out exactly what it
         does.
         Q.   Have you looked at the, have you looked at the -- is there
         a similar module in Plaintiff's 49?
         A.   Yes.
         Q.   In Plaintiff's 48?
         A.   Number 48, yes.  It is on sheet number 7.
         Q.   And what are the similarities between 50 and 48 with
         respect to that module?
         A.   In Exhibit number 49, sheet number 5.
         Q.   What are the similarities with respect to 48, 49 and 50
         with the main module?
         A.   In Exhibit number 49, again it's checking to see if any
         parameters were passed from the command line.  Then it's
         checking for the keyboard status, to see whether the caps lock
         has been turned on or not.  This is in Exhibit number 49.  The
         key lock, the status of the key lock was not checked at this
         point in Exhibit number 48.
         Q.   So that's -- I'm sorry.  Go ahead.
         A.   That's a difference right there.  In Exhibit number 48,
         some variables just for this module are declared, and then this
         one also checks for the keyboard status.
         Q.   Did 50 check for keyboard status?
         A.   I can't tell.
         Q.   Okay.  What -- would you say that the main module in 50 is
         substantially similar to the main module in 48 and 49?
         A.   Without reviewing them further, I can't say exactly if
         it's similar or dissimilar.
         Q.   Are there any similarities in source code between 50 and
         48 and 49 with respect to the main module?
         A.   Yes.
         Q.   Can you point some of those out?
         A.   There are some mandatory similarities.
                   THE COURT:  Some what?
                   THE WITNESS:  Mandatory.  When you start a C program,
         you must have this main module.  You must have it.
         BY MR. OSTROWSKI:
         Q.   Well, I'm not talking about the, you know, the first line
         where the program is defined.  I'm talking about the body of
         the module itself.  Are there any similarities in source code
         in the body of the module?
         A.   Similarities in word for word identical, or similarity in
         function?
         Q.   Well, I'm asking you about literal similarity right now,
         the same code being used.  Say, a line that is substantially
         similar in both programs or all three?
         A.   Of course.
         Q.   What would you say, could you formulate an estimate of the
         number of, of the percentage of similar source codes in Exhibit
         50 compared to 49 and/or 48?  Feel free to compare two at a
         time, if that helps.  In fact, that's basic -- I would ask you
         to compare 50 with 49 and then 50 with 48.
         A.   Here's 49 and 50.  As far as a percentage, it would take
         me a long period of time to give you an accurate estimate, and
         that's all it would be would be an estimate, as to what each
         one is.  What I would have to do is, I would have to go through
         this line by line, seeing what each one of these do, in Exhibit
         number 49, make a list of things that are done in main.  Then
         on 50 I would have to go through, look at each line by line and
         see what things were done in main of number 50.  The order
         might be different, so I might be looking at the top of list
         number 50 and the bottom of list number 49 and might find the
         same item.  It would take me a long period of time to do that.
         Q.   Is there any program that would, that you could have used
         to assist you in doing that?
         A.   I could have used a text editor, yes, and searched for
         certain key words in each one of these.
         Q.   Well, isn't there a program available which would actually
         do all of the work itself and compare similar lines of data?
         A.   Not that I'm aware of.
         Q.   You're not aware of that, such a program.  Okay.  Is it
         fair to say that you didn't, you did not do any detailed
         analysis of the source codes between 50, 49 and 48?
         A.   No.  That would not be fair to say.
         Q.   Well, you just stated that you're unable to do it with
         respect to the main module?
         A.   Correct.
         Q.   Without actually more or less starting from scratch, going
         line by line, is that correct?
         A.   Correct.
         Q.   So is it fair to say that as of now you have not done a
         detailed analysis that would allow you to tell us what the
         similarity in source code is between the three, among the three
         programs?
         A.   Of the main module of the three programs, that would be
         accurate, yes.
         Q.   Well, how about any other modules?
         A.   Pick one.
         Q.   Well, what I'm asking you is, have you compared the source
         code of any other elements of Plaintiff's 50 with either 48 or
         49?
         A.   Yes.
         Q.   Which ones?
         A.   What I did was, I picked out, and I should have kept notes
         but I did not, of five modules picked at random from 48, 49 and
         50, and compared those three modules.  I will attempt to find
         a similar module from 49 or 50.
         Q.   You say you picked out, was it three, did you say?
         A.   Five.
         Q.   Okay.  You said you picked out five modules at random?
         A.   Yes.
         Q.   Why did you pick them at random, as opposed to picking the
         most important ones?
         A.   Typically a style in a program stays the same throughout
         the program.  If I picked five at random, the chances of that
         style maintaining itself throughout the program is good.  If
         five of them, any five that I picked at random, compared
         favorably, I would think that maybe there was some collusion.
         If five of these modules were different in nature, I would
         conclude that the structure of the entire program is different.
         Q.   By the way, if someone had access to Plaintiff's 50 and
         wanted to duplicate the function of the program and what it
         does for the user, and the structure of the program, but
         changed the language around to avoid any allegation of copying,
         would that be possible?
         A.   You mean change the variable name from maybe search B-A-T-
         C-H, to maybe S-R-D-I-R.  Of course, that's possible.
         Q.   Well, all I'm asking you, I don't -- you're asking me.  I
         don't know.  You're the expert.  Believe me, I'm not.  Would it
         be possible, if someone had access to 50, to intentionally copy
         the logic or the functions of 50 and what it does for the user,
         but change the language so that it doesn't look exactly the
         same in a source code?
         A.   But of course that's how all programs are devised.
         Q.   Well, I'd ask you for an answer to the question?
         A.   Is it possible?  Yes.
         Q.   Okay.  Would it affect your analysis of the similarity of
         these programs if you were informed that the author of 48 and
         50, or you assumed for the sake of argument, that the author of
         49 and 50, did have access -- I'm sorry, that the author of 48
         and 49 did in fact have access to 50?
         A.   I couldn't tell from looking at these that one had access
         to the other.  No, I couldn't conclude that.
         Q.   Well, all -- I don't think you answered my question.  My
         question was, would it assist your analysis to know that, or is
         that irrelevant to your analysis?
         A.   I think it would, it would flavor my analysis.  If someone
         told me that 50 existed and we think 49 was an alteration of
         number 50, when I looked at these modules, I would be looking
         for different things --
         Q.   Okay.
         A.   -- rather than just a change of name from one
         identification to something totally different or substantially
         different.  I would look at the structure to see how things
         were done, to see if it was essentially the same but only the
         names changed.
         Q.   But you didn't do that, did you?
         A.   On five of the modules I did, yes.
         Q.   Okay.  But not with respect to the entire rest of the
         program?
         A.   No, I did not.
         Q.   How many modules are there in, say 50?  I'm asking you
         approximately, of course.
         A.   50, 60.
         Q.   Okay.  And you only looked at five.  Now, are there -- is
         that correct, five?
         A.   Yes, only five.
         Q.   Is it fair to say you didn't look at the other parts at
         all?
         A.   I looked at the entire program in each and every one.  I
         read every page.
         Q.   Okay.
         A.   Looking through it for patterns, looking through it for
         style, the same way I would look at assignments turned in by my
         students.
         Q.   Okay.  Now, are there different modules that are more
         important to the efficiency or value of the program than
         others?
         A.   Yes.
         Q.   And what are the most important ones, generally speaking?
         And I'm asking for a generic label here because they may be
         named differently?
         A.   Probably the most imp -- and they're all equally important
         because they all do important features.
         Q.   Well, then you're saying that there isn't a program, there
         isn't a module that's any more important than the others?
                   THE COURT:  For what purpose, for evaluating
         similarity?  Is that what your question is, Mr. Ostrowski?
                   MR. OSTROWSKI:  I guess it's, to a certain extent
         it's a metaphysical question.
                   MR. OSTROWSKI:  Let me --
                   THE COURT:  That's all we need is metaphysical.
                   MR. OSTROWSKI:  Let me rephrase the question.  Let me
         rephrase the question.
         BY MR. OSTROWSKI:
         Q.   We spoke before about creativity versus the more scut work
         elements of programming.  Is there are, are there any modules
         that are more likely to contain creative elements because they
         haven't been, the industry hasn't been at it that long in that
         particular area, or there are more options in the language, C
         Plus Plus gives you more options?  Are there any --
         A.   Probably --
         Q.   Do you understand my question?
         A.   Yes.  Probably the most important module is the user
         interface where you are shown the options on the screen, you
         get to pick the option that you want, and the program carries
         on with that, whatever the user selected.  If you don't have
         that, you can't do anything.
         Q.   Okay.  So the function of picking the screen is important?
         A.   It is important.
         Q.   And what, on number 50, where is that accomplished?  Do
         you know?
         A.   Part of it is accomplished in main.
         Q.   Okay.  Main is one of the ones you didn't compare before
         you came here?
         A.   Correct.
         Q.   The source code.  Which of the five did you compare?
         A.   I don't have that list here.  I just picked five at
         random, and picked out five that did five different functions,
         wrote those down on a slip of paper and hunted and fetched
         through each one of these looking for functions that did the
         same thing but were called different items.
         Q.   Well, is it fair to say then as we stand here today you're
         not prepared --
                   THE COURT:  And sit.
                   MR. OSTROWSKI:  Pardon me?
                   THE COURT:  And sit.  As we stand here today.  I just
         wanted to included all of us.
         BY MR. OSTROWSKI:
         Q.   As we exist here today, back to metaphysics, as we
         litigate here today -- well, that doesn't include the Judge.
         As we are here today, you're not prepared to spell out, to do
         an analysis of source codes in any aspect of the program, of
         the three programs?
         A.   Only those, only those five that I randomly picked.
         Q.   Well, you're not --
         A.   The other 40 some -- I don't have a list of those five,
         no, I do not.
         Q.   But even with respect to the five, you're not prepared to
         proceed to an analysis of source codes, are you?
         A.   Not at this time, no.
         Q.   Okay.  And are you prepared to proceed without undue
         delay, or in fact without doing the work right on the witness
         stand, with an analysis of the modules of each program?
         A.   I can do that, but it's going to take me some time to do
         that.  As I stated previously, I only compared these for about
         seven hours.  It would take me, in analyzing line by line,
         module by module, probably four, five work days.
         Q.   Okay.  So you're not prepared to discuss the similarities
         between 48, 49 and 50 in terms of structure, as opposed to
         source codes.  Structure, function, modules, parameters, those
         kinds of things.  You're not prepared to discuss those with
         respect to 48, 49 and 50?
         A.   No.
         Q.   Okay.
                   THE COURT:  Which brings me to the point, what do you
         plan to do today, Gentlemen?
                   MR. OSTROWSKI:  I'm not quite done, Your Honor.  I
         don't want to --
                   THE COURT:  I gather that.
                   MR. OSTROWSKI:  I imagine that if, I don't know, I
         probably have perhaps another hour.
                   THE COURT:  And Mr. Kitchen will have some redirect.
         And you have classes to teach.
                   THE WITNESS:  Midterm tests tomorrow.
                   MR. KITCHEN:  Yes, Your Honor.  I mean, my direct was
         an hour and a half.  Thus far, since stopping my direct, two
         hours have elapsed, and yet Mr. Ostrowski still has another
         hour to go.
                   MR. OSTROWSKI:  Well, that's always true.
                   THE COURT:  Well, one -- almost one hour that I took
         in getting some back room work done.
                   MR. KITCHEN:  Well, all right.  But --
                   MR. OSTROWSKI:  And Your Honor knows it's always true
         that cross always takes longer than direct.
                   MR. KITCHEN:  Well, not always, but in any event, if
         this expert cannot return tomorrow --
                   THE COURT:  Well, I wouldn't press him on that.
                   MR. KITCHEN:  Okay.
                   THE COURT:  But I assume that we should pick a time
         when we're going to end, and I'd like to do that not later than
         20 after 5:00 today.  Then we can arrange some time when
         Professor Brown might come back.
                   MR. KITCHEN:  Yes.  I will say that I have to, of
         course, put Mr. Graham back on the stand, but I believe that
         that would be all of the witnesses I would have.
                   THE COURT:  Well, you'd only program to finish up
         tomorrow morning.
                   MR. KITCHEN:  Yes.  Yes, sir.  So that being the
         case, I don't know whether it would be appropriate to suspend
         Professor Brown's testimony and allow defense to go forward,
         whether that would be appropriate at all, whether that would be
         anything defense would object to.
                   MR. OSTROWSKI:  I wouldn't object.  I want to just
         move along and --
                   MR. KITCHEN:  Right.
                   MR. OSTROWSKI:  -- as quick as we can.
                   THE COURT:  So as I gather then, it would be
         convenient to allow Professor Brown to go on for say, 10 or 15
         more minutes, bring it to a close today, arrange with him
         outside of the courtroom some time when he can return and set
         that up with the Court.  And meanwhile, tomorrow morning then,
         complete Mr. Graham's testimony, shift over to the defense
         testimony.
                   MR. OSTROWSKI:  Yes.
                   THE COURT:  And at some time see Professor Brown
         again.
                   MR. KITCHEN:  That's agreeable to me.
                   MR. OSTROWSKI:  Okay.  That sounds good.
                   THE COURT:  All right.  Go ahead.
         BY MR. OSTROWSKI:
         Q.   Can you find the INT DIR, INT space DIR command on
         Plaintiff's 50?
         A.   Say that again.
         Q.   Hold on a second, please.
                   MR. OSTROWSKI:  I withdraw the question for the
         moment, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  Let me rephrase that.  What I'd ask you to do is
         see if you can find the module that creates, that displays the
         category list that you testified about, on the screen, and --
         A.   That displays the list of categories, such as
         communications or --
         Q.   Yes.  The opening screen of the CD ROM's in which there
         are categories numbered in some cases, in other cases not.
         A.   I would have to check to see what this start function does
         here.  This is a named routine that does something.  Now,
         whether that puts it on the screen --
                   THE COURT:  Excuse me.  What is, quote, this,
         unquote?
                   THE WITNESS:  There is a instruction on sheet 4 of
         Exhibit 50 that says, start.  This is a name of a routine
         that's later on over the next 41 pages.  It's someplace on the
         next 40 pages, Your Honor.  Whether that does it, I will have
         to check that one first.  Now, I can go through these 40 pages
         looking for start to see if that's what does it.  Now --
         BY MR. OSTROWSKI:
         Q.   Is that the only way you'd be able to do that?
                   MR. KITCHEN:  Excuse me.  I believe page 7.
                   THE WITNESS:  Is that where the start is?
                   MR. KITCHEN:  I believe so.
                   THE WITNESS:  I have an install.
         BY MR. OSTROWSKI:
         Q.   Which Exhibit, is that 50?
         A.   This is Exhibit 50.
                   MR. KITCHEN:  Right after install?
                   MR. OSTROWSKI:  I would object to coaching the
         witness, Your Honor.
                   THE WITNESS:  No.  That's not on my page 7.  That's
         on the next page.  We're looking at different Exhibits here.
                   THE COURT:  Different Exhibits?
                   THE WITNESS:  Yes.  My Exhibit is Exhibit number 50.
                   THE COURT:  Well, that's what Mr. Kitchen was
         referring to.
                   MR. KITCHEN:  No, Your Honor.  Actually I was
         referring to Exhibit 18 which is, which should be quite similar
         to it.
                   THE COURT:  I see.
                   MR. KITCHEN:  So that's what I was guessing, in an
         effort to be helpful, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Well, let me withdraw the question.  Can you locate a
         function called INT Help in Exhibit 50?
         A.   It's on my page 6 of Exhibit 50.
         Q.   Is there, is there any similar module -- is there a
         module?
         A.   Yes.
         Q.   Is there any similar module in 48 or 49?
         A.   Yes.
         Q.   Which one?
         A.   I would have to take a look at each one.
                   THE COURT:  What was the name of that module on sheet
         6 of Plaintiff 50?
                   THE WITNESS:  Help.  The name of the module was help.
                   THE COURT:  Help.
                   THE WITNESS:  What I can do, and what I will do, is,
         I will prepare a list of every module, and I will prepare a
         list of what every module does.  And I'll prepare a list of
         what page each one of these modules appears on, for my next
         testimony.
                   MR. OSTROWSKI:  Any time before the year 2000?  Seems
         like a lot of work to me, but --
                   THE WITNESS:  That's it exactly.  It is a lot of
         work.  There are over 100 pages in this one.  There are over 40
         pages in this one.  There is over 50 pages in this one.  I
         cannot memorize what's on 200 pages.
         BY MR. OSTROWSKI:
         Q.   Well, I believe you said that 50 seems like it was written
         by an undergraduate?
         A.   Yes.
         Q.   It would seem that since you're a over-graduate, that it
         would be very easy for you to sit down and analyze that.
         A.   No.  It's very cryptic in nature, and that's why I said
         this would be an undergraduate attempt.  They usually take the
         shortcut methods that aren't always the most easy to read.
         They're just in such a rush to get it done, they use whatever
         conventions they typically see in the textbook to get things
         done.
         Q.   And this was, are you describing 50 now?
         A.   Yes.  This looks very much like a C textbook.
         Q.   But you didn't have any complaints about how it operated?
         A.   No.  It will work fine.
                   MR. KITCHEN:  Does the Court have any Exhibits of its
         own?
                   THE COURT:  Pardon me?
                   MR. KITCHEN:  Does the Court have any Exhibits in its
         own possession?
                   THE COURT:  Do I have any possession?
                   MR. KITCHEN:  Right.
                   THE COURT:  No.  What one are you looking for?
                   MR. KITCHEN:  We're looking for Exhibit 20, Your
         Honor.
                   MR. OSTROWSKI:  I think this is 20.
                   MR. KITCHEN:  We think that Exhibit 49 is a duplicate
         of 20.
                   THE COURT:  I have 20 cross indexed to Defendant 4.
                   MR. KITCHEN:  Excuse me, Your Honor.  I had it all
         along.
                   THE COURT:  These brash accusations of the Court and
         all that.
                   MR. KITCHEN:  Cheap courtroom trick.
                   THE COURT:  That will not go unnoted, Mr. Kitchen.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  You go to be careful, you got to go
         beyond the first page of declarations.
         BY MR. OSTROWSKI:
         Q.   Can you, can you look on page, approximately page 5 of 49
         and see if there's a help module or anything like it?
         A.   Page 5, no.
                   THE COURT:  Sheet 5?
                   THE WITNESS:  Sheet 5, no.
         BY MR. OSTROWSKI:
         Q.   It should be somewhere near the front, if you can just
         keep paging through until you find something.
         A.   You think it's at the beginning?
         Q.   Well, maybe I'm wrong.  I just --
         A.   I'm up to page 11 of 65.  Do you want me to continue?
         Q.   For the moment.  Till I find a new question.  Well, let me
         ask you this.  I believe you stated that there were many
         similarities between 50 and 48 and 49, is that correct?
         A.   Yes.
         Q.   And what, what are those similarities?
         A.   Wait a minute.  Between 48 and 49, or did you say 50 and
         49?
         Q.   Well, I'm asking you about 50 compared to 48 and 49, so
         feel free to compare, obviously you've got to do it one at a
         time because they're different.
         A.   Correct.  Which one?
         Q.   Similarities between 50 and -- well, which, out of 48 and
         49, which, do you know which one came first?  Well, which one
         is dated '92?
         A.   The one dated '92 is Exhibit 49.
         Q.   Okay.
         A.   The one dated '93 is Exhibit 48.
         Q.   Okay.  What are the similarities between 50 and 49 that
         you testified existed?
         A.   The five modules that I looked at were very similar in the
         nature of what they did first, what they did second, what they
         did third, and what they did fourth.  The variables, if I
         remember correctly, might have been slightly different, but
         they accomplished the same goal in relatively the same manner.
         Q.   Did you --
         A.   That same module -- go ahead.
         Q.   Okay.  Go ahead.
         A.   That same module in number 50 accomplished the same thing,
         but did it in a slightly different manner.
         Q.   Okay.
         A.   Using different variable names.  But that's what I would
         expect.  A module that clears the screen, let's say, or a
         module that gets the DIR, they should all accomplish the same
         task.  It's how they accomplish that task that might be
         different.
         Q.   And you said that inside the modules, functions were in
         similar order?
         A.   Correct.
         Q.   What about -- now, I believe we were just talking about 49
         and 50?
         A.   Correct.  Comparing those two side by side.
         Q.   What about 50 and 48?
         A.   What do you want to ask?
         Q.   Well, what the similarities are that you testified about?
         A.   The modules that I compared, they accomplished the same
         goal, which they should.  They accomplished them differently.
         Q.   And how so?
         A.   They used different mixes of instructions in different
         orders.
         Q.   And you're not certain which modules you're talking about
         now?
         A.   No.
         Q.   Okay.  So I can't ask any specific questions about which,
         about say differences among the five modules?
                   THE COURT:  Not when the man says he doesn't remember
         any of it and has his papers at home, right?
                   THE WITNESS:  Correct.  I will be prepared to answer
         those exact questions for any module that you'll want to
         specify next time.
         BY MR. OSTROWSKI:
         Q.   Well, let me ask you this.  I asked you if you had notes.
         You have notes at home?
         A.   No.  All I had at home was a sheet of paper.  I picked out
         five modules at random after looking over generally how each
         program was written, the style, how the author attempted to do
         these kinds of things.  Then I looked at the next one to see
         this author's style, and then I looked at the third one to see
         that author's style.  I was not prepared to go through these
         200 page analysis.  It would take me a week to do that.  I was
         not prepared to spend that amount of time, so I chose five
         modules at random.  I don't know which five those were, but I
         found them in this one, I found them in this one and I found
         them in this one, and I put them side by side and compared what
         each did.  They all did similar things, which they should.  How
         they accomplished them were different between number 48 and 50
         and between 49 and 50.  However, 49 and 48 were similar.
         Q.   Okay.
                   THE COURT:  Mr. Ostrowski.
                   MR. OSTROWSKI:  I was just going to say so myself.
                   THE COURT:  All right.  You'll arrange some time for
         Professor Brown to come back.  You'll communicate with the
         Court about that.  Meanwhile, tomorrow morning 9:00 o'clock to
         complete Mr. Graham.
                   MR. KITCHEN:  Yes, sir.
                   THE COURT:  Thank you.
                   MR. OSTROWSKI:  Okay.

                                                                683


                                        I N D E X



         Witness                         Dir  Cross  Redir  Recr


         Philip C. Swanson                            685    765

         Stephen J. Brown                781   836



         Exhibit                       Identification      Evidence

         Plaintiff

         21, 35                                               753