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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, November 4, 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 MR. OSTROWSKI: Good morning, Your Honor. THE COURT: Good morning, Mr. Ostrowski. MR. OSTROWSKI: Your Honor, with respect to some of the comments made by counsel yesterday about the way I was presenting my case, if I may be heard very briefly. THE COURT: Other than saying, GD it, I'm going to run my own case? MR. OSTROWSKI: No, Your Honor. I just, I was thinking back that, of course, there's no opening statement, and perhaps I haven't let people know where I'm going, and I try to avoid, you know, testifying, and so on, so perhaps I've left people in the dark. The reason why I went through the first disk with no file retrieval is that that pertains strictly to the issue of damages. I have a burden of showing what value the file retrieval system contributes to a CD ROM and therefore I think it obvious that it would be of value to see a CD ROM with no file retrieval and how difficult it is to use. Then we get into the Jeff Anderson or possibly Richard Graham program. And then, of course, the plaintiff has raised the point that that is similar, that Mr. James has simply took that over and made a few small changes and that, and therefore, that Mr. James contributed nothing original, where in fact it's our position that he didn't use that at all. But then we have to show that, in demonstrating the CD ROM's that they are different, because that, the plaintiff has raised that issue. Then, of course, we get into the additions that Mr. James, Mr. James undisputably wrote, in order to demonstrate how they are different from the subsequent versions. And now we're getting into the subsequent versions of the CD ROM's which I believe that the plaintiff is arguing are substantially different. He's spent a tremendous amount of resources bringing experts in to show how the subsequent programs are different. And it's my burden to show that they are in fact similar, unless counsel is willing to stipulate that all the rest of the CD ROM's in evidence in the case have a file retrieval which is substantially similar to -- THE COURT: Well, I think the -- of course, Mr. Kitchen has a right to protect his situation in making complaints and objections, and he has. And the thing that bothers me is that things don't seem to be going in very effectively. And I think it's a matter probably of, I don't put it this way bluntly, but as a matter of practice it is your control of Mr. James. It's hard to keep him from just rolling along, pushing buttons. Things flick and flack, and he rolls along, and you're not controlling the situation. MR. OSTROWSKI: I appreciate that, Your Honor. I have spoken to Mr. James. THE COURT: That's what bothers me about it. MR. KITCHEN: Your Honor, if I could comment. I don't have any problem with anything Mr. Ostrowski has said. Obviously I'm not going to stipulate that all of the subsequent versions are substantially similar. I think the Court's going to have to see that. But I think, if we maybe both would make an effort to do things that would allow the evidence to go in a little more quickly. THE COURT: Yeah. I think the both, all of us should make an effort to have the case move along more effectively than it has been moving. MR. KITCHEN: Right. And unless -- and, you know, I will try to assist in that regard, you know, if for example, the next disk, if Mr. Ostrowski has some idea as to what's on it and he can kind of succinctly put that in in one statement and offer that as saying, look, this is the disk with thus and such on it and it came from thus and this was already testified to. I mean, that might be a better preliminary than, say, handing it to the witness and saying, could you read the label, and stuff like this. Maybe that would speed things up a little bit. I mean, these are maybe small adjustments. MR. OSTROWSKI: Well, I'll try to do that except some of that testimony is now two months old, and I don't want to just trust my memory with it, but I'll try to -- MR. KITCHEN: Well, yeah. If you're off, then I will protest, I suppose, but if you're not, you know, maybe we can - - THE COURT: Sure. You're both lawyers, and I'm an ex-lawyer. Are we at the machine again? MR. OSTROWSKI: Yes, Your Honor. We're ready to go with Plaintiff's Exhibit 8, which is PDSI005. And I'd ask Mr. James to keep strictly to answering the question that I ask. I know you have a great deal of knowledge about computers and so on, but it has to proceed on a question and answer -- THE COURT: If he has a biological problem, he'll just have to overcome it. (LARRY JAMES, Defendant, Previously Sworn) CONTINUED DIRECT EXAMINATION Q. Mr. James, could you fire up Plaintiff's Exhibit 8, and basically I'm asking you to operate the program, describe the steps that you are taking, and I'm asking you if this program - - THE COURT: Something has been on the screen from before. Mr. Ostrowski's telling you to do that. Was that the firing up of the machine, of the disk? THE WITNESS: Your Honor, it may have had some influence. I will delete all residue of -- THE COURT: You'll start over? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Are you in DOS right now? A. Yes, I am. Q. Okay. And can you fire up the program by typing Night and enter? Did you just make a couple of typos there? A. The program is on C, on the drive Z. I was working on drive C to delete all the files that might have had any influence on the CD ROM disk. And when I typed Night, because there's no path pointing to anything on my hard drive -- Q. Speak into the microphone. A. -- it didn't find the executional program because I was on drive C. Q. Okay. Where are we now in firing up the program? A. We're on drive Z, the CD ROM drive. Q. I mean on the screen? A. The program is prompting that there's no environment set, pointing to where the files would be located on the CD -- on the hard drive. Q. Okay. THE COURT: What does it mean, environment? THE WITNESS: Environment is set commands that's in the configuration of the computer's memory. For convenience, a person may not have to type full paths. They might not have to type CD to change directory. They will put a statement in the environment of the computer's memory. THE COURT: Environment means sort of the ambiance, the overall picture, or the present situation, or what, or does it have a technical meaning? THE WITNESS: It means that with, and it also includes the technical specifics to tell the DOS where certain files will be located. And in this case, that statement is not in the environment of the computer so it doesn't know where the files are located, and that's what it's prompting to the user. BY MR. OSTROWSKI: Q. Okay. So what do you have to do at this point to get into the file retrieval, well, to get into the main menu? A. Since there is no indication of what to do, the natural thing is to press enter and hope that it would -- THE COURT: Something happens? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. Could you do that? Now -- A. Yes? Q. -- this is the point in the program where you have to give the computer basic information about what drive you're on, and so on? A. Yes. THE COURT: What's that, quote, default Night area, unquote? THE WITNESS: That's a suggestion, letting the user know that wherever he puts in his parameter will be the area that the program will use as a work area for the CD ROM drive, which is called Night Owl. THE COURT: Does default have a technical meaning? THE WITNESS: No. Just that every time you run it, it will default back to this area that you set up. THE COURT: Default back to that area. MR. OSTROWSKI: Well, it doesn't -- THE COURT: Strange phrase. Does it have a technical meaning? MR. OSTROWSKI: Doesn't -- THE WITNESS: No, Your Honor. BY MR. OSTROWSKI: Q. Doesn't default mean the computer picks your option for you, if you don't do anything? THE COURT: You mean it's picked by default, is that what you're talking about, Mr. Ostrowski? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Rather than you saying what to do, the machine runs itself? MR. OSTROWSKI: Yeah, just by hitting enter. THE WITNESS: Yes, James. That's the -- THE COURT: Yes who? THE WITNESS: James, James. That's a slightly different perspective. THE COURT: Who's James? THE WITNESS: Yes, Mr. Ostrowski. MR. OSTROWSKI: We both have the same name. THE COURT: Yes, I thought that. THE WITNESS: Oh, Mr. Ostrowski, you're making a reference to this here as being a default of my program, and this is the default, and you're correct. His Honor asked me the question referring to the default in this description. It's allowing the user to set a default. There may be a different default than my program assumes. BY MR. OSTROWSKI: Q. Okay. And what would the next logical step be? A. To press enter. Q. Okay. And what is this command all about? A. It's prompting you for the area, the drive letter specification of your CD ROM drive. Q. So you're telling it to go to the CD ROM, which is Z? A. Yes. Q. Okay. Next command? A. It's set in the area for where the text files, those DIR files will be located. Q. Okay. Is that an acceptable default? A. Yes, it is. Q. Okay. Could you hit the next one then? And we have a color monitor so you can hit C or default. And this one's kind, we've had some testimony about this before, this -- could you explain this one? A. This gives you an option of allowing an external program to assist you in viewing or doing certain work. For some people that really like to use Word Perfect, they might even put the word Word Perfect right there. And somewhere during the program they would have an option of calling a user preferred program without exiting out. They could even use it as a DOS shell and there's a program on the hard drive called DOS Shell. You put DOS Shell in there, from there you'll be able to format disks, do anything, but that's, that's just, any program that you want to just put in there to assist you later on. Q. Okay. Well, let's assume that the user doesn't have that program. What would we do then? A. I -- they would press enter, and the utility is not going to give them an error. It's just going to use my built-in utility. It won't hurt if they put the wrong name in. Q. Well, but that's a utility that was on the computer when it came into the courtroom. THE COURT: Yes or no. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. What I'm saying is, can you get the program operating so that it doesn't get any help from the computer as it came into the courtroom, other than DOS, and other than the file retrieval program? A. It's that way now. Q. Okay. And what do we do at this point? A. You can type yes to confirm that the configuration is correct. Q. Okay. Can you do that? And this -- what do we want to do with this auto exe bat? A. It prompts you, do you want to update the auto exe batch file. This is a file that executes when you first turn the computer on. Anything that you want your computer to do when you first turn it on, you will put it in that particular text file. THE COURT: What's BAT? THE WITNESS: It stands for batch. THE COURT: Batch, B-A-T-C-H? THE WITNESS: Yes, Your Honor, batch routines. It would run a lot of lines as if they were individuals being typed in, and then press enter, and a lot of people for the batch files they would put in lines to type in the environment, things that they do tediously every time they type in the -- start the computer, they would put it in that file. BY MR. OSTROWSKI: Q. Okay. What would the logical step be at this point? A. At this point I'm going to say no, because I'd rather for the system not to set up a default to access the CD ROM drive, so I'll say no. Q. Okay. Go ahead and do that. THE COURT: I notice this has the same version number in the top right corner as Plaintiff's 7 had. What's the significance of that? BY MR. OSTROWSKI: Q. Did you put that, did you put that version number in there, and if you know, what is the significance? A. The version numbers in the top of the screen, that had a version number 3. No, I didn't put -- THE COURT: 3.001. THE WITNESS: No. I never put a 00. THE COURT: Well, my question is, is there any significance in that Plaintiff's 7 had the same version number. THE WITNESS: Well, it might have been a matter of preference of someone who made changes. This, for me it was an identification mark of when I last worked on the code. THE COURT: So then a version number doesn't identify a particular exemplification or version of the program or disk. It can be duplicated. THE WITNESS: Oh, yes, Your Honor. For me it identifies a version that's, that's on my hard drive. If someone calls me and tell me they have a problem, I'll ask them what the version number is, and if they tell me the version number, as soon as they tell me that number, I know by my version number the date that I had worked on that code, and I can tell them exactly what to do with it. THE COURT: Is that true of other people and their version numbers? THE WITNESS: Yes. Most professionals do have some significance with version numbers. The person that modified the number that I had in this particular program, they didn't use that, they didn't recognize their professionalism in that capacity. MR. KITCHEN: Excuse me, Your Honor. What version number did you note on this one? THE COURT: 3.001. BY MR. OSTROWSKI: Q. Now, are we at the install command that we've seen before? A. Yes. Q. And you type install to get up to the main menu? A. Yes. Q. Okay. A. The program is prompting you to type install to continue. Q. Can you hit enter at that point? Now, what, why do we get all those four or five C prompt things? Was that important? A. That wasn't important. I did that just to let the user see the computer working, let it know the computer was busy. Q. Okay. You wrote the source codes for that intentionally? A. Yes. Q. Okay. Now, are we at the main menu screen? A. Yes, we are. Q. Do you notice any differences between this and the prior programs that we looked at yesterday? A. There's no difference there whatsoever. Q. Can you pick -- THE COURT: Greater number of items, but -- THE WITNESS: Your Honor, that's not part of the program. That's a text file. That's a text -- that's just -- THE COURT: Well, where's the program? MR. OSTROWSKI: I'm sorry. It's my mistake in the question. BY MR. OSTROWSKI: Q. I mean, with respect to that portion of the menu screen which is produced by the file retrieval program, is that any different? A. There's no -- the only difference there is the version number has been modified and doesn't have my signature. Q. Can you pick a category, go to one of the categories and - - THE COURT: Well, what's, is this the program, this black bar there? THE WITNESS: Yes, Your Honor. That is the program. THE COURT: In other words, where it has different directions, enter pound sign, so forth? User die search, set up DOS or quit. Is that what you mean when you say a program? THE WITNESS: Yes, Your Honor. Can you turn the page and I'm going to enter DIR. THE COURT: What are you looking at? What are you looking at? THE WITNESS: I wanted to show you -- THE COURT: What are you looking at? THE WITNESS: The code. THE COURT: What do you have in your hand? It has an Exhibit number, doesn't it? MR. OSTROWSKI: Defendant's Exhibit 1. THE WITNESS: Exhibit number 1. BY MR. OSTROWSKI: Q. Did you write the source -- THE COURT: Thank you. Defendant 1. THE WITNESS: Defendant 1. BY MR. OSTROWSKI: Q. Did you write the source codes to produce the commands at the bottom of the screen? A. Yes, I did. Put the page and enter DIR. Q. What module are they in? A. This module right here -- Q. No. In Defendant's Exhibit 1, what module are they in? A. Enter DIR. Q. Is that on page 9 of Defendant's Exhibit 1? A. Yes, that's where it begins. Q. And do you see, do you actually see the language of those commands in, on page 9? A. Your Honor, that's what I wrote right there. Q. And where is that language? A. It's midways on the page, it says enter pound, user DIR, search set up, set up DOS. THE COURT: What's this thing in front of it? THE WITNESS: C print. THE COURT: C print F. THE WITNESS: Yes. That's -- THE COURT: What does that mean? THE WITNESS: That's a special function that I picked out. THE COURT: What's it mean? THE WITNESS: It mean printouts. THE COURT: Does it have any translation? THE WITNESS: Print, print format. THE COURT: Just print, the C means nothing? F means format? THE WITNESS: Yes, Your Honor. THE COURT: What's the C mean? THE WITNESS: It means console. That's a routine that allows it to access my colors. BY MR. OSTROWSKI: Q. Can you pick a category and get into one of the categories, communications or games? Okay. Are we into one of the, we're into the list of games, after you pressed 2? A. Yes. Q. And can you extract and execute, see if you can extract and execute a program. You have a menu screen up there with commands? A. Yes. I pressed enter on the first one that was on the top that happened to be at. Q. Okay. And you can, can you press extract at this point, or X for extract? Is it unzipping now? A. It is. Q. Okay. And now this screen here, again, we've had some testimony yesterday about it, at some point you were using a list program yesterday? A. That's correct. Q. That sort of interacted with the file retrieval. Are you using the list program now? A. No, we're not. Q. So are you basically using DOS, the CD ROM and your file retrieval that's on the CD ROM and the computer's hardware? A. That's correct. Q. Okay. Now, what, what do we do at this point to actually run or execute that program? A. You can press enter. Q. Can you press enter, please? And what's the option there? A. It prompts you if you want to execute that, the file that you had highlighted. Q. And if you want to, what do you do? A. It gets you -- push S. Q. Okay. And you're in the program now and if you want to play around with it you could probably do that for quite a while, I take it? A. That's correct. Q. Okay. Can you, how do you get out of the program, or is that up to the, this program itself? A. That's up to this program itself. It has the option to quit, Q-U-I-T, for quit. Q. So you got an easy quit out of here? A. Yes. Q. By pressing Q. Okay. Go ahead. Maybe not so easy. A. You're back in the program now. Q. Okay. Now, there's a, this blue, small blue screen with a flashing command about press any key to return to Night, what, is that from the file retrieval or is that from the game you were just in? A. That's from the file retrieval. Q. Okay. And can you hit any key to return to Night. Okay. And we get back to the main menu screen? What did you hit there? A. I pressed escape. Q. You got that option to delete files. I take it we want to delete files? A. Yes. Q. And it's working now, like on Star Trek, I guess. The computer said it was working all the time. THE COURT: Are you sure? Yes, no. BY MR. OSTROWSKI: Q. Okay. Where are we now? We're back to the list of game files. How do we get back to the main menu? What did you press? A. Escape. Q. Now we're back to, we've eliminated the command screen. We're still in the list of game files? A. Yes. Q. How do you get back to the main menu? And what did you hit? A. I kept backing out by pressing escape, almost every option that you mentioned. The default to back out of some utility or some level is escape. Q. Okay. And we're at the main menu now, and if you're done for the day, how do you quit? A. The option on the screen says Q. Q. Can you hit Q? And you had to press enter, right? A. Yes. Q. And now you have a -- in case you hit -- well, now you have a confirm. Do you want to confirm that for yes? Okay. Now you're out of the program? A. Yes. Q. Is this your program? A. Yes, it is. Q. Is -- the commands that you use in that program, are they based on the source codes in Defendant's Exhibit 1? A. The commands, every screen, everything about that program. I didn't see any difference at all from what's in my hand here. Q. I have Plaintiff's Exhibit 34, PDSI006. Can you throw this in, and I'd ask you to execute that. MR. KITCHEN: Your Honor, there's no difference is the last thing he said. This is no difference from what? Is he comparing, is the comparisons in which he says there's no difference with Defendant 1? THE COURT: Defendant's 1 and Plaintiff 8. MR. KITCHEN: Because Defendant's 1 is essentially, is a source code, so he's saying that what Defendant 1 -- THE COURT: He's saying he wrote the source code in Defendant 1, and there's no difference between that and what he sees in Plaintiff 8, which is Night Owl, is that right, Mr. James? THE WITNESS: That's correct, Your Honor. BY MR. OSTROWSKI: Q. Are there any differences between Plaintiff's 8 and -- MR. KITCHEN: The reason for my raising the issue, Your Honor, is, I don't know that at anytime we have seen Defendant's 1 in actual operation. THE COURT: You mean the CD ROM that corresponds to Defendant 1? MR. KITCHEN: That's right. I mean, similarities have been noted, several times now. Is there one essentially? THE COURT: Well, he didn't say similar, he said same. MR. KITCHEN: Yeah. MR. OSTROWSKI: I don't really know what counsel is driving at. MR. KITCHEN: Well, I guess, I guess what I'm saying is, since Defendant's 1 is of course not in the same form as the Exhibit that's currently being displayed on the screen, it's in the source code version, you know, is there in fact an Exhibit that actually for sure has Defendant's 1, you know, in its compiled version that was, was put on a CD ROM or in some - - THE COURT: I think what Mr. Ostrowski's response would be, that maybe you could bring that up on cross examination. Is that feasible? MR. KITCHEN: Well, I -- yes, I suppose it is. I guess I'm trying to cut the corner here, Your Honor, and just say, gee, if that is an issue -- THE COURT: I'm resigned to the fact we're not cutting corners in this case at all. THE WITNESS: He's added to it. BY MR. OSTROWSKI: Q. No. You didn't write that copyright screen on there, did you, from Plaintiff's 8? A. No, I didn't. Q. Okay. Now, Plaintiff's -- THE COURT: Is that Plaintiff 8 up there? MR. OSTROWSKI: That's still -- THE COURT: I thought you -- oh, you still have 34 in your hand. MR. OSTROWSKI: It's, yeah, Your Honor, it's the residue of 8, even though it's, the disk is out. THE COURT: I'm being plagued and confused by these residee. THE WITNESS: We didn't clear the screen. THE COURT: Residues. MR. OSTROWSKI: Well, now, Plaintiff's 18 -- THE COURT: Why didn't you clear the screen? THE WITNESS: No one told me to. THE COURT: Yeah, all right. See, Ostrowski, it's your fault. MR. OSTROWSKI: I'm going to deduct that from my fee, Your Honor. He just cost me $100. BY MR. OSTROWSKI: Q. Plaintiff's 18 is a source code that you've looked at before, correct? A. It is. Q. And is the, the way that Plaintiff's Exhibit 8 just operated, is that consistent with the source code you wrote on Plaintiff's 18? A. Yes. When I say no difference, I had mentioned that there was a number that was changed. THE COURT: Yeah, but you had -- THE WITNESS: A version number was changed. THE COURT: You had Defendant 1. Now you have Plaintiff 18. THE WITNESS: These are the same, Your Honor. I studied, I studied these two. THE COURT: Plaintiff 18 is the same as Defendant 1. THE WITNESS: Yes. The difference is a -- THE COURT: Oh, there is a difference. MR. OSTROWSKI: He's testified previously, Your Honor, that -- THE COURT: Well, I know. THE WITNESS: The copyright notice. THE COURT: One, he says the same, and then he says, the difference, so it can't be the same. BY MR. OSTROWSKI: Q. What are the differences between 1 and -- Defendant's 1 and Plaintiff's 18? A. Defendant's 1 has the copyright notice that I put in, and it has security locks in it, and it has the proper serial ID, identification, along with version number correct. Other than those minor cosmetic difference and security difference, they had to do the security to, just to take my copyright notice off, but basically that's the only difference was my copyright notice is removed, and some of my minor marks on the screen. Q. Okay. THE COURT: Now, I had a note earlier that you said Defendant 1 was the same as Plaintiff's 7. Now you say Plaintiff 8, or are Plaintiff 7 and Plaintiff 8 the same thing? MR. OSTROWSKI: 7 is a CD ROM, Your Honor. THE COURT: Well, so what? MR. OSTROWSKI: I think the form of my question -- THE COURT: Well, isn't 8 a CD ROM? MR. OSTROWSKI: Yes. Well, there's -- I'm asking him to compare source codes -- THE COURT: Earlier I see that I had made a note as to Exhibit -- Defendant Exhibit 1 was the same as Plaintiff's 7. Now I find out it's the same as Plaintiff 8. Things equal to the same thing are equal to each other, I've been told, so that means Plaintiff's 7 and Plaintiff 8 are the same thing. MR. OSTROWSKI: I think that's the gist of our position. Not that the source code is identical to the CD ROM, but that the CD ROM has the source code on it, and that's how it operates. BY MR. OSTROWSKI: Q. Can you fire up Plaintiff's 34, please? Okay. What is the screen -- cannot open main categories file. Why is that? A. I know in here what's causing that. It's an error in here. It's a significant line. Q. Well, wait a second now. You're pointing to Defendant's 1. There's an error in Defendant's 1? A. No. There's an error in the code that -- Q. You've got to be very specific about which Exhibit you're referring to. A. This program -- Q. What is the error -- THE COURT: What is this, the one that's on the screen, Plaintiff 34? MR. OSTROWSKI: Plaintiff's 34, Your Honor. THE WITNESS: What Defendant is that, what the number? THE COURT: Plaintiff 34. MR. OSTROWSKI: It's 6, I believe. THE COURT: Plaintiff 34. MR. KITCHEN: Plaintiff 34 is PDSI006. MR. OSTROWSKI: PDSI006. BY MR. OSTROWSKI: Q. What is the error on the source code of the file retrieval in Plaintiff's 34? A. The source that was used to compile this program is this that was modified. THE COURT: What is this? THE WITNESS: It's the Defendant's number 1 that was modified, and a very significant line was removed. BY MR. OSTROWSKI: Q. Have you already testified about that? A. Yes. Q. Okay. A. And because that line was removed, it's not setting up the new configuration file and it's not removing those files. You have to do it manually. Q. Okay. Is that the problem that Swanson had several times? A. Yes. Q. When he testified, Mr. Swanson? Okay. Now, can you fix that problem, tell us what you're doing so we can get into the main menu. You've got to describe each step, please. A. What I have to do is remove all the residue of the other program. Q. Okay. Can you do that? A. All the configuration files. Q. You're deleting? A. Yes. I go into the Night directory and first I delete the work area, and it prompts me to confirm, and now I remove the directory by typing RD, and now I type DIR to see what's left. An unzip file is left. I type DEL unzip to unzip that directory, to delete all the files that's in that directory, and then RD to remove. THE COURT: Let's see something. Are you sure, yes, no, file not found? THE WITNESS: Yes, Your Honor. In that particular case, it was in its directory. Now I remove the rest of that particular directory with RD, and now I type DIR again. Now just two files are left in it and I type DEL. That's going to delete all the files that are there. And that's why it prompts, are you sure. Now there are no files there, and now I can do RD to remove the Night area. MR. OSTROWSKI: Okay. THE WITNESS: And now I type SET. And this is part of the computer's environment. It's telling the computer where the Night retrieval files will be located. So I'll remove that SET statement by typing SET Night equals. Now I type SET. Now even that statement is no longer in the environment. THE COURT: Oh, is that -- you said, no longer in the environment, and you pointed to the screen. Is that the environment? THE WITNESS: Yes. The environment is Comspec equals C:\ command. THE COURT: Just that one line? THE WITNESS: No, that whole block of text. THE COURT: The whole screen or just that six line -- THE WITNESS: One, two, three, four. Everything -- THE COURT: Well, starting after SET. THE WITNESS: After SET, yes, Your Honor. THE COURT: I see. Comspec through prompt. THE WITNESS: Yes, Your Honor. THE COURT: That's the environment? THE WITNESS: Yes, it is, Your Honor. THE COURT: Why is that the environment? What, I can't understand this environment business. THE WITNESS: Your Honor, before there was a command that says -- that command that says, SET Night equals C:\ Night, that was telling the computer and it was all in the environment that the Night's area is in C:\ Night. So you don't have to go there, type CD\ Night, because it's in the environment, and the computer will automatically goes there. Now, this particular program didn't know that the environment may not be correct, so it doesn't go in and do a new config. It just, it just does an error. THE COURT: Config is shorthand for configuration? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Is that because the, some programmer after you took out the configuration program in your source codes? A. Yes. Running these programs I -- Q. Just answer yes or no? A. Yes. Q. Is that an improvement in your program? A. No, that's not. Q. Is it, how would the -- I take it the user would have to go through all these steps, assuming that he knew them? A. Yes, he would. Q. Okay. Are we ready to fire it up? A. Yes. Q. By pressing Night and enter? A. That's correct. Q. Okay. A. Okay. Q. Now, what happened here? THE COURT: It cannot do. THE WITNESS: This, this program is recognized -- THE COURT: The thing says, cannot open. I don't want to misquote. THE WITNESS: Yes. Cannot open Night.config file. THE COURT: Night what? THE WITNESS: Night.config file. MR. OSTROWSKI: CFG? THE WITNESS: Yes. THE COURT: Oh, is CFG the shorthand for configuration? THE WITNESS: Yes. What it's, that's the prompt, the same prompt that I had modified slightly that says environment not set. But, so when you press enter it's going to run my config program. It only runs it once when you first start it, but it would run it now. BY MR. OSTROWSKI: Q. Okay. Is this the way the program is supposed to work according to your source codes? A. This is the way it's supposed to work at this particular point, and the next step would be to run, run my new install. Q. Okay. And how do you, what command does that? A. You press enter. Q. Okay. A. And now it's prompting for the color, for the monitor type. Q. Okay. That's C, right? A. Right. In my system I had set it to default to color. Most people have color. Very few people have monochrome. It's very obsolete. But this novice made a mistake and made it default to monochrome. Q. By novice you mean novice? A. Yes. I told you I get my education from books, not from - - Q. No. I just wanted to clarify the word you were using. A. So I'll enter C to indicate -- Q. You get your education, your language skills from books and not so much from talking to highly educated people? A. That's correct. Q. Okay. A. I do. Q. Right. Okay. A. Okay. MR. OSTROWSKI: Well, I didn't say right for me being highly educated. I was -- the right was being formulated before he said I was highly educated. Wrong. BY MR. OSTROWSKI: Q. Okay. What do we do next to -- A. It's continuing with, the rest of it's very similar. Q. Is this standard? A. Yes. It's standard. Q. The option selection stuff? A. Yes. Q. Okay. Why don't you just go ahead and get the main menu up. Okay. Now, we have a main menu here. There's no numbers on that. Is that how you programmed your file retrieval? A. The option was there, and that's a slight different, but it's, what it's doing is, you highlight an area, and it, the area that's highlighted is associated with a number, so it's the same as pressing a number. Q. Well, you say the option was there in your source codes, is that what you're saying? A. Yes, I am. Q. Well, why did you, you didn't pick that option though, you picked the number option? A. I was duplicating the BBS. Q. Okay. What's the version number on the upper right, is that version 5? THE COURT: 5.00. BY MR. OSTROWSKI: Q. Okay. Can you pick a category and get into some programs and tell us how you're doing it? A. Okay. I highlighted games. The reason I highlighted games is because it's kind of, it will have a real short executional file that will probably unzip real quick. Q. Okay. And how did you hit, how did you call that up? A. By pressing enter, and the area, number 2 was selected, just by pressing enter, the associated number of that file came up, category 2. And its function, the identical, basically the same as the rest, and this is my list utility. I can show you the code that represents the things that's in there right here in Exhibit 1. Q. Okay. What module is it in? A. This module is -- Q. Module on Defendant's 1, I'm saying? A. Get DIR. Q. Okay. Is that on page 5 of Defendant's Exhibit 1? A. Yes. That's where it -- no, that's, the page 5, this is where it's being called. Q. Okay. A. It's entered -- Q. Is it INT Get X? A. Yes. Q. Is that on page 27? A. Yes. That's where it begins. Q. Okay. The source code it produces -- well, what does it produce exactly? Get, the module INT Get in Defendant's 1, what is that doing, or what could it do? A. It pulled up a list of files and present them to the screen. Q. Got us to where we are now? A. Yes. Q. Okay. Can you pick a program and extract and execute it, and just tell us what commands you're using? A. I'm using an up or down arrow to, to select something that may not be a big file. Q. Okay. A. This right here says 1 Danger Game. It seems to be 41K and the description of, items of the danger game. Q. How did you get to the -- what did you do, did you highlight it? A. Yes. And I pressed -- I highlighted and pressed enter. Q. And now you press X for extract? A. Yes. Q. Okay. Can you do that? And now it's unzipping? A. Yes, it is. Q. Okay. And do you have the program ready to go? A. Yes. It's ready to go, identical to the other, other ones. This screen right here is created by my module that says, view, in its view. MR. KITCHEN: Excuse me. Is there a -- THE COURT: Where do you see that? Up at the top left it says viewing. THE WITNESS: Yes. MR. KITCHEN: Is there a name for that screen? You know, we -- let me just offer this. We seem to have a main menu that has the category listing. And then we have the file listing which is kind of referred to sometimes as the second screen. THE WITNESS: The DIR. MR. KITCHEN: And now we're into another screen that we've seen before similarly. What, is there a name for this one so we can kind of refer to it? THE WITNESS: In my tool I refer to it as execute 2, which is the view, the view option. BY MR. OSTROWSKI: Q. Is there anything in the language of the computer field that you could call this commonly? A. List. I don't refer -- Q. You think -- well, I guess there isn't, so what, what module in Defendant's 1 produces this screen? Did you say list? A. No. View. Enter view. Q. Is that page 34 on Defendant's 1? INT view 3? A. There's another enter view. THE COURT: It's not on 34. THE WITNESS: It's not on 34. MR. OSTROWSKI: I'm looking for my index here. THE WITNESS: It's -- MR. OSTROWSKI: How about INT View DIR. THE WITNESS: It's down below. Enter view -- it's on page 35. It's on page 35. BY MR. OSTROWSKI: Q. Okay. Okay. You have the source codes on page 35 of Defendant's 1 that is producing the list of executable programs? A. Yes, I do. Q. Okay. A. There was, there are something that's added, an S, and that's easy to have inserted, you know, a different option. But the rest of it -- Q. What do you mean, different option? What does the S do? A. It allows to show a GIF file. Q. Did you have any option on your program that did that? A. I had an option, I had an option, but, to handle programs by the extension. That's an execute, too. If the file is a BAS extension it would load Basic and run the program, and if it's a COM or EXE or BAT extension, it would just execute the program. And that same module, you could put at any extension, which if it's a GIF extension you just write that word right there and it will pull up the associated program. In this case my program used C show, the one that I presented with Bob Depew, and that's, that Richard used the -- Q. Well -- A. -- the program that I presented with Bob Depew. Q. Okay. Was that program -- A. To subsequently put view in it -- Q. Is that program an Exhibit in this case? A. It was testified to by Richard Graham that I was, that I gave him a utility. THE COURT: Your answer is yes, or don't you know? THE WITNESS: It was testified to, but it wasn't -- THE COURT: You don't know if it's an Exhibit. THE WITNESS: No, the Exhibit didn't come, Your Honor. THE COURT: Okay. THE WITNESS: It was testified to. BY MR. OSTROWSKI: Q. Can you execute the -- Mr. James, I'd ask you not to -- I know there's lots of noise behind us. A. Okay. Q. And I've commented on that in the past. MR. KITCHEN: I beg your pardon. THE COURT: Not too much. MR. OSTROWSKI: Well, today I was about to say -- THE COURT: I don't think it's very abusive unless your ears are ultra-sensitive, Mr. Ostrowski. MR. OSTROWSKI: No. I was about to say, Your Honor, I don't, it's not bothering me today but I'm simply asking Mr. James to focus on the screen. It was loud at one point a couple weeks ago. THE COURT: Is it bothering you, Mr. James? THE WITNESS: Not yet, today. THE COURT: Okay. BY MR. OSTROWSKI: Q. Okay. Can you execute the program? How do you execute that? A. By pressing enter. Q. Okay. Can you do that? And what is this option? A. It prompts you if you want to execute, yes or no or cancel. Q. Okay. And what do you want to do, yes? A. I hit yes, and now it gives you prompts for -- it's running the program. Q. This is the actual program where, out of the file retrieval? A. That's correct. Q. Okay. Looks pretty dull so why don't we escape from that. How do we do that? A. I don't see any options to escape so I hit control break and we might be able to break out of it, which we did. Q. Okay. And we're back to where we were? A. Yes. Q. Can you just -- please, don't, don't be distracted by anything. Just concentrate on the screen, please. THE COURT: Distracted by what? MR. OSTROWSKI: He keeps looking back, Your Honor. I'm simply telling him not to look back because -- THE COURT: To back where? MR. OSTROWSKI: Back to plaintiff's table. THE COURT: Why is he doing that? MR. OSTROWSKI: I don't know. He's -- THE COURT: Pay attention, Mr. James. MR. OSTROWSKI: He feels that there's something significant back there. I'm simply telling him, there's nothing -- THE COURT: Well, pay attention to what's going on, Mr. James. MR. OSTROWSKI: There's nothing significant happening behind you. Please. THE WITNESS: Okay. BY MR. OSTROWSKI: Q. Can you just -- we've gone through this a number of times. Is this your program? A. Yes, it is. Q. The source codes that created these commands, is that, are those source codes on Defendant's 1? A. Yes, they are. Q. And are they on Plaintiff's 18, which is what you gave to Mr. Graham? A. Yes, they are, it is. Q. Okay. Well, let's just cancel out of here. Out of the whole program. I'm not going to go through the -- okay. This is Plaintiff's 24, CD ROM PDSI006-1. If you want to tell me what, why there's a -1, it might help things along. MR. KITCHEN: PDSI -- MR. OSTROWSKI: -- 6-1. THE COURT: What are you talking about, 6-1? MR. OSTROWSKI: There's a, we just looked at PDSI006. THE COURT: Yeah. MR. OSTROWSKI: We're now looking at PDSI006-1. THE COURT: You mean, that's on the screen now? MR. KITCHEN: That's Exhibit 24. MR. OSTROWSKI: No. On the -- BY MR. OSTROWSKI: Q. Could you cancel that screen out, because that's on the prior Exhibit. THE COURT: Clean up the debris. MR. KITCHEN: This is Exhibit -- THE COURT: 24. And we have a 24-A. MR. KITCHEN: 24-A -- THE COURT: Which was a yellow slip that was inside the jewel case. MR. OSTROWSKI: Well, this appears to be -- well, we better actually go through this then. Your Honor, there's a Plaintiff's Exhibit 24-A, which I believe is the writing of Richard Graham. THE COURT: Some yellow slip that was in the jewel case. MR. OSTROWSKI: Code date, 5/20/92, says Brian on it. There is some source code that has the name Brian in it. THE COURT: Code date, I had code date July '92. Is it 5/92? MR. KITCHEN: Yes, sir. MR. OSTROWSKI: 5. MR. KITCHEN: 5/20/92. MR. OSTROWSKI: It has -- THE COURT: You call that, what, a code date? MR. KITCHEN: Well, yeah, it says code date -- MR. OSTROWSKI: That's what it says. MR. KITCHEN: -- 5/20/92, Brian. That's just what the notation is on this yellow piece of paper. BY MR. OSTROWSKI: Q. Can you fire that one up, Mr. James, and see if that's your program? MR. OSTROWSKI: I'd be happy, Your Honor, just to have, I would ask him to go through it as fast as he can, and not ask him any questions, and then I'd simply ask him one question at the end, or two or three questions at the end. That might be the fastest, unless there's any objection. MR. KITCHEN: No problem. BY MR. OSTROWSKI: Q. Can you just run through that as fast as you can, look for similarities and differences between the prior programs and the source codes that you wrote? A. This has the opening screen, the options, all the options installed to -- Q. Okay. Well, tell you what. If you see anything different, you can describe that. If it's just the same, just run through it as fast as you can. A. Okay. This has a minor difference. Q. Okay. What is that difference? A. Right here, it, instead of saying enter, you could select, et cetera, et cetera, the install after that, the second option, they have an install right there. And -- Q. Okay. What does that do? A. That runs my set-up program. It does it identical except they just changed one of the words. This would be in -- Q. But did you have a command that was similar to their install command? A. It's set-up. Q. Okay. Well, go ahead and go to -- just continue working. It doesn't seem to be that big of a deal. A. When I press enter it goes into the DIR area the same way, and the -- Q. You don't have to describe. I'm just trying to do it as fast as we -- A. Okay. Q. If you see any differences, you can describe those. Now, I don't want to rush you through it, if there is something you need to look at. A. So far I don't see anything different. There's nothing different. This list utility, we never mentioned anything about. Q. What, I don't know what you mean by that. A. This, this utility right here, this is something that's totally unique. You will never see it anywhere, anywhere. I wrote this out of my mind. At the time, I didn't spend a lot of time concentrating on, on making the program go and calculate all the pages, 60 pages -- 60 lines per page or 66 per typewritten page or 25 for a screen. What I did was I would calculate by counting 3,000 characters and consider 3,000 alphabetical characters to represent a page. And this, this number would change every 3,000 characters. That's how I calculated the page. Q. You saying you have a pagination program on there that's unique? A. Yes. It's -- Q. Well, just answer yes or no. A. Yes, I do. Q. Never seen it anywhere else? A. Right. I have not. Q. And it's on here? A. Yes, it is. Q. It's on Plaintiff's 24? A. Yes, it is. Q. Okay. Continue examining the program and if you see anything significant or a big difference, you can speak about that. A. I don't see any difference. I just thought that, that outstanding characteristic -- Q. I appreciate that. A. -- had never been mentioned. Q. That's what I was asking you, for open-ended analysis, but not to repeat anything. A. I don't see any difference. Q. Okay. Is this basically your program? A. Yes, it is. Q. The one that's on Defendant's 1? Don't look back, please. Don't be distracted. You got to focus. A. Yes. Yes, it's the same. It's essentially the same as the previous one. Q. And also Plaintiff's 18, the source code? A. It is. Q. And the previous one, previous CD ROM's you've looked at that have your C program on it? A. Yes. I don't see any significant changes at all, no significant modifications. Q. Okay. Can you kill that screen and -- THE COURT: While you're doing that, do I come through on this, Jeanne? Now what do you have? MR. OSTROWSKI: This is Plaintiff's Exhibit 25, NOPV6. It has a 25-A, which reads literally, Brain, which I assume is supposed to be Brian, it's misspelled, B-R-A-I-N, finish code 12/26/92. BY MR. OSTROWSKI: Q. Can you -- I'm going to ask you to do the same thing. I want you to run the program as fast as you can. If you see anything that's different from your programs -- I'm sorry. I didn't put it in. If you see anything different or unusual, you could testify to that. Otherwise I'm just going to ask you some questions at the end, after you get out of the main menu. A. The first screen that comes up looks totally different. It looks totally different. Q. Okay. A. But it's not fully into the program yet. What it, it has an option, it says I for install, R for run, C to choose or Q to quit. Q. Is this on your -- did you write the source codes to produce this, yes or no? A. No, not to produce that screen, no, I didn't. Q. Did you have any source codes that produced similar commands? A. I took a look at this just -- we looked at it yesterday. Q. Okay. A. The I will run my set-up utility and R will run the program. If you type Night on the previous disk it would do all this automatically. Right now it stops, and for me this is unfriendly. I would never put this in there. Q. Okay. Is this an improvement on your program? A. No. It's unfriendly for a user. A user has a problem in his head to figure out what to do when the screen comes up. Q. Is this a change in the program that makes it a worse program? A. It absolutely is. Q. Okay. You can -- A. It's going away from my program in respect -- Q. -- continue with your silent analysis and, but feel free to speak if there's a big difference. A. I hit I, and it went through the normal default option. It's running my set-up utility that's called INT config. I press enter and -- Q. What I'm saying is, if this is similar, you just, just run through it. I'll ask you a couple quick questions at the end. Okay. A. The letters -- Q. Where are you now, main menu? A. I'm at the main menu. Q. Okay. A. The letters at the bottom of the screen has been highlighted to a different color, but it's still pointing to the same routines that are in my Defendant's 1. Q. Okay. Could you pick a command and see if we could find the source code? A. Okay. I'll pick U. Q. No, no. I'm not -- I'm asking, not on the machine. I'm just asking you to pick a command on the bottom and we'll try to find the source code, if we can. A. I, the I would run the install, my set-up routine. Q. Okay. The install command on the opening menu on Plaintiff's 25 is from what source code in your Defendant's 1? A. New, INT new config. What page is it on? Q. Can't find it -- oh, I'm sorry. 12. A. Okay. It's on page 12. Q. Okay. A. If you hit I right here, it will run into this, this utility and it will type in that line right there, installing new configuration, and what I call it is new config. On my menu -- Q. Are you at the bottom of page 12? A. Yes, I am. Q. Okay. A. On my menu it says set-up, so right now it prompts, and it's running the set-up utilities. Q. Okay. You can continue. A. It's prompting, the words are basically the same. The name installing, new configuration. Q. Where is that from? A. This is on page 12. Q. What Exhibit? A. Exhibit 1. Q. Okay. And where, is that on the screen? A. Yes. Name of your default area. See that right there, that percent S -- Q. Well, the screen says location. A. Oh, location of the defaults Night directory, and right here, when you hit I it runs this installing new config. This one says creating new config. Q. Okay. A. So -- Q. What does your say? A. -- the language installing new configuration. Q. Okay. But those are the same basic commands and functions? A. Yes, it is. Q. Okay. A. And there's the option for the color monitor and the monochrome monitor and the, the drive. Q. Are you on page -- A. The one thing that they added different here is the option to put a viewer, which is C show, and it's -- Q. C what? A. C show. Q. What does that mean? A. It's a utility that display graphic files, similar to the list that I was using as a default to list, list directories. Q. Is that what allowed them to do the photographic display that we saw? A. Right. That's what I put on Bob's disk, Bob Depew's disk to display the graphic files. This option -- Q. Did your, did your file retrieval that you gave to Mr. Graham have graphics capacity? A. I had made a mention -- Q. Well, yes or no? A. No, it didn't. Q. Okay. A. It had the capacity, yes, it did. I just didn't put the option on there for the user. Q. Was it activated? A. No, it was not activated. Q. But it was in the source codes? A. Yes. Q. Potentially? A. Yes. Q. Okay. Continue just with your quick review of the program. MR. KITCHEN: Excuse me for clarification, when he says the source code, we're talking about Defendant's 1. THE WITNESS: Yes. MR. OSTROWSKI: Yeah, but see, there's testimony that Defendant's 1 and Plaintiff's 18 are similar, and Plaintiff's 19 are similar so -- THE COURT: But what he has in his hands and is looking at is Defendant's 1. MR. OSTROWSKI: Yes, Your Honor. That's what we've got here. THE WITNESS: Right now pressing enter would run my module that says, execute. If you press enter here, it will bring up a list of files. Everything here is identical, including the words, except the, the command words at the bottom are highlighted in a different color, rather than the bracket that I use. BY MR. OSTROWSKI: Q. Okay. Continue. A. At this point, if you press enter on one of these, one of these options, you'll get my command module that says the name, Execute 2. THE COURT: What do you call that bottom bar? THE WITNESS: That's, that is, that status line. THE COURT: Status line, is that what you call it? THE WITNESS: Yes, Your Honor. THE COURT: Not the program. THE WITNESS: That's correct. THE COURT: What's before it? THE WITNESS: Oh, it is part -- I'm sorry, the status line of the program. THE COURT: That is the program. THE WITNESS: Yes, Your Honor. THE COURT: Status line of the program, or is it the program? THE WITNESS: It's the status line of the program. THE COURT: From the program. THE WITNESS: I can show it, show His Honor the program. THE COURT: No, just tell me. THE WITNESS: And the code. MR. OSTROWSKI: Just tell him. THE WITNESS: Yes. It's -- THE COURT: It's a status line taken from your program? THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. A. At this point you have the option to -- Q. What I'm asking you is, I don't want you to comment unless there's something different or unusual. A. The difference that I see is throughout the program they added, they used a different color to highlight the options that I had highlighted by using brackets. Q. Okay. A. But other than that it's, I don't see any difference. Q. Are you basically done? A. Yes, I am. Q. Okay. Can you erase that screen then? THE COURT: Clear the screen, get all the stuff off it. MR. OSTROWSKI: I still can't take the CD ROM out of the case. THE COURT: Why don't you practice on that overnight. MR. OSTROWSKI: I've even had instructions from Mr. Kitchen. BY MR. OSTROWSKI: Q. This is Plaintiff's Exhibit 27, NOPV8. Has a 1993 date on it. Okay. Can you fire that up, and I'm going to ask you to execute the program as fast as you can, and tell me if there's any differences from the prior programs or anything unusual or outstanding. Otherwise I'll just ask you some quick questions at the end. A. I don't see any difference. It has -- Q. What I'm asking you is from Plaintiff's 25, the one you just looked at -- A. Oh, okay. Q. -- because you already said there was a difference in 25 - - A. No. It's -- Q. -- about the opening configuration. A. All the options that I see, everything, the functionality is doing the same, and it has just the same change that the previous, Defendant's number 25 has. Q. Plaintiff's 25. Plaintiff's 25? A. Yes. Q. Okay. This is, this CD ROM has your file retrieval on it? A. Yes, it does. Q. That's in Defendant's 1? A. Yes, it does. Q. Plaintiff's 18? A. Yes, it does. Q. Can you give us an example of any, any of the commands on, that are used in this program, and show us where the source code is on Defendant's 1. A. The screen, the category screen that we're looking at here is called INT DIR. I can point to it if you would -- Q. Is that on 9, page 9? A. Yes. Q. Well, it looks like you're on page 10 there. A. You're correct. INT DIR is page 9 and what it does, it comes down and sets up the page. It runs a window that sets up. Q. Can you quote a line of code and say what it does on the screen? A. Yes. Page 10 is also part of the same, as part of the same, that particular is kind of big. Right here, Your Honor - - Q. Here on which Exhibit? A. On Exhibit number 1. Q. Defendant's? A. Yes. It has the option for user DIR, and right there I use greater than and less than symbols to highlight those. You have an option to search right there, and it's identical, it's the same, except the difference, rather than use those, the highlights that I use, they use a different color, and -- Q. And what about the set-up. I see set-up command and -- A. -- and the words set-up has been changed to install, but it runs the same procedure that I have on my INT DIR. Q. Okay. Other than that, they're substantially similar? A. Yes. Yes, it is. THE COURT: Now, you're referring to what, the status line? THE WITNESS: I can refer to any part of -- THE COURT: Is that the status line that you were referring to? THE WITNESS: Yes, Your Honor. THE COURT: All right. THE WITNESS: That was what I was referring to. MR. OSTROWSKI: Okay. Did we just do NOPV8? MR. KITCHEN: Yes. MR. OSTROWSKI: I don't know who set these up, but we're now going backwards to Plaintiff's 26, which is NOPV7. BY MR. OSTROWSKI: Q. I'm going to ask you to, since we've, you've already done the one before and after this one, go through this very fast, and I'm just going to ask you if it's substantially similar to your program and the ones we've looked at on the CD ROM. And I don't want you to explain anything unless it's something new or different or significant? Is this important? A. That's new. And it's different. I consider it significant to understanding what, something, but it's not significant to the functionality of my program. Q. Well -- A. What happens, because people have a lot of problems when they install, because of that module they removed out, they're fixed, is to put a text file explaining that they have to delete all the other stuff. It's that, if you have had previous installed this software on your hard drive, you would need to start the program from the default directory you specified. It's giving some instructions, you know, to the user, you know, and I would consider it's unfriendly because I -- Q. Unfriendly? A. Yes. I think the program should do all those things for the user, where they just type it in and they just run it, you know. Q. Was this instruction necessary on the file retrieval as you wrote it? A. No. It's necessary because that statement was taken out. Q. Well, no. A. Also -- Q. You didn't answer my question though. Was this instruction necessary on your file retrieval? A. No. Q. Okay. But it is necessary, given that yours has been altered by taking out a couple of lines? A. Yes. Apparently they didn't know how to fix it. Q. Okay. A. Right here, version -- Q. You can just continue. We've already made the point. A. There's a version number, and it says version number 1. Q. Okay. Just go through it quick and I'm going to ask you if, a couple questions at the end. A. This disk is the same. It's different from the previous one that we just looked at in that it's still, they didn't change the colors. The colors are -- Q. Okay. A. -- options are highlighted. Q. I apologize. I mixed up the disks. We're now sort of going back one disk. A. It's the same. Q. Okay. THE COURT: What disk are we on? MR. OSTROWSKI: This is, this is NOPV7, because I -- THE COURT: 26, Plaintiff's 26. That's what you said, yeah. What do you mean, you went backwards? MR. OSTROWSKI: Well, Your Honor, I -- THE COURT: You had gone to 8, that's 27, which was 8, and now you've gone back to 7, is that what you mean? MR. OSTROWSKI: Yeah. By mixing up the order. THE COURT: You've retrogressed. MR. OSTROWSKI: I thought I had organized it yesterday but I had put one out of order. BY MR. OSTROWSKI: Q. Okay. This is the same program substantially as you have on Defendant's 1? A. Yes, it is. Q. Plaintiff's 18? A. Yes. Q. And the prior CD ROM's that we've looked at that have your C program on them? A. It is. Q. Okay. And you could point to a source code in Defendant's 1 to show how the various commands were -- A. For everything in there. Q. How they work? A. Yes, I can. And the wording is 95% identical. On most screens it's 100% identical. Q. Okay. This is Plaintiff's -- THE COURT: You wouldn't say 94, you'd say 95, right? THE WITNESS: It's more than 90, Your Honor, yes. BY MR. OSTROWSKI: Q. Okay. This is NOPV9, we're back in order. Going from 7 to 9. Plaintiff's Exhibit 36, dated 1993. Can you fire that up? THE COURT: Now, this is left over from the other? THE WITNESS: Yes. I'm cleaning it off. THE COURT: You're cleaning it off now. Tell me when you start the new one. THE WITNESS: Now. We're ready. THE COURT: All right. BY MR. OSTROWSKI: Q. Now, this is the last one in the case, so take a little bit more time and go through it, and -- MR. KITCHEN: And this is which one? MR. OSTROWSKI: This is Plaintiff's 36, NOPV9. I believe we agree that that was where we were going to stop because we can't go on forever, as new editions come out. THE COURT: Hooray. THE WITNESS: This has the option of hitting I to install and what it will do -- BY MR. OSTROWSKI: Q. Hitting what? A. I to install the program. Q. Okay. A. What it will do is run my set-up routine that comes by default. Q. And what module is that on Defendant's 9 -- I'm sorry, Defendant's 1? A. INT new config. THE COURT: It's what? THE WITNESS: INT new config. THE COURT: New consis, what's that? THE WITNESS: New config. THE COURT: New config? THE WITNESS: Yes. C-O-N-F-I-G, for new configuration. THE COURT: All right. New configuration. BY MR. OSTROWSKI: Q. Is that on page 12? A. Yes. Q. Okay. You don't have to explain it. Continue on to the next logical step. MR. KITCHEN: Well, I think he has and there's something different on the screen. THE WITNESS: That word is -- beg your pardon? MR. KITCHEN: If the record could show that the screen now has something new that we haven't seen before, a large box with a small box in the -- THE COURT: Well, that question was there before, but the method or the looks of it is different from what we've seen before. MR. KITCHEN: Yes. Now it's in a small box, and it says, do you have a color monitor? THE COURT: Well, that question's been on before. THE WITNESS: Right. James asked me that question. I was going to reflect that, the change. He asked me -- BY MR. OSTROWSKI: Q. Is this new or -- THE COURT: Wait a minute. Mr. Night is not -- Mr. Kitchen is not asking you questions. MR. OSTROWSKI: Okay. THE COURT: Mr. Ostrowski is asking you questions. Once in a while I will. THE WITNESS: Thank you. BY MR. OSTROWSKI: Q. What's the significance of this screen? A. This is the commands to do an installation. They have removed the lines that say -- THE COURT: It's not a command. It's a question, isn't it? THE WITNESS: I was referring to the command that this, this -- THE COURT: Oh, on page 12 of Defendant 1. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. They've removed what? A. Well, rather than prompt the user that they're doing a new installation, they're using the same module for the same thing, but they just type it in, do you have a color monitor. THE COURT: So you have a command on page 12 of Defendant's 1 which has been removed? THE WITNESS: No, it's not, it's not a command. THE COURT: Oh, I thought you said it was a command. THE WITNESS: Some of the -- one of the words -- THE COURT: I thought you used the word command. THE WITNESS: The command is new config. That's the command that they executing, new config. THE COURT: All right. THE WITNESS: New config is the command they're executing. Installing new configuration is a line in that particular command that, that has been modified. They're not telling the user what they're doing. BY MR. OSTROWSKI: Q. What is the difference between this and your file retrieval? A. There's no prompt to the user that they're installing a new configuration. Q. Okay. What's the next logical step here, to put color monitor? A. I would say yes, we have a color monitor. And you know, actually, that was just something that was thrown in. It seems my configuration is still being run. THE COURT: Well, you said yeah, that they had changed something on page 12 of Defendant 1 where you talked about a new configuration. Now I see at the top of this screen -- THE WITNESS: It's not changed, Your Honor. THE COURT: -- quote, creating new configuration file. THE WITNESS: Yes, Your Honor. And this is what's being run right here. Right here it says, creating new configuration, and they changed the word from installing new to creating new. BY MR. OSTROWSKI: Q. What page? A. On page 12. THE COURT: But I see creating. You had install and they had creating? THE WITNESS: Yes, Your Honor. THE COURT: All right. MR. OSTROWSKI: Okay. THE WITNESS: This is the same wording that was used on the three or four, at least three preceding disks that we just looked at. MR. OSTROWSKI: Right. THE WITNESS: That little window right there was something, little module they threw in, but it's not significant. MR. OSTROWSKI: Okay. THE WITNESS: It doesn't do anything to the program and it doesn't take away from the fact that it's still running, these lines, just as they come here. BY MR. OSTROWSKI: Q. These lines, meaning what? A. The lines that's in this Defendant's Exhibit number 1. It says, what is the name of your CD ROM drive, and this say, what drive contains a letter. Now, right after, name of your default area, and it said, location of default areas. It's proceeding. It's running. When you type I it's running this new config, this module, and it's -- Q. Now we've got two things here. We've got instructions for the user and we've got source codes that are executing the options that the user picks? A. Right. Q. Are you saying that the source codes that -- A. This source code -- Q. Don't interrupt me, please. Are you saying that the source codes that execute the user's choices are the same on Defendant's 1 and in Plaintiff's 36? A. They are the same, but -- Q. Okay. Continue with your analysis then. MR. KITCHEN: Well, Your Honor, I'm going to object to that because Mr. Ostrowski is referring to source code used in, in the preparation of the particular program that is now showing on the screen. Unless he has, or unless this witness has seen that source code, he doesn't have the to be able to answer that. He can talk about the similarity between this screen and the screen that his source code, Defendant's 1, would produce, but he's then talking about similarities in appearance in the screen. MR. OSTROWSKI: That's exactly what Professor Brown did. MR. KITCHEN: Okay. MR. OSTROWSKI: Your witness. MR. KITCHEN: But he is not talking about similarities in the source code. I mean, there's already been testimony, and I don't know that there's any dispute about this, that different source codes can produce the same appearance. And that similar source codes could produce a different appearance. THE COURT: Your objection is what, that Mr. James is basing a lot of his testimony upon Defendant's Exhibit 1, which is his source code whereas he might be using, or should be using a different source code which is not that much different? MR. KITCHEN: No. I guess the -- THE COURT: I don't understand you then, Mr. Kitchen. MR. KITCHEN: All right. The crux of my objection is, is it's probably okay for him to say that, look, my source code, Defendant's 1, would produce a screen that looks just like what we have up here on the screen. Okay. That, that he could testify to. Or he could point out the similarities and differences. But he can't say that, well, the source code that is producing this screen that we're looking at is the same as my source code in Defendant's 1, I mean, because unless he has seen the source code that produced the image that's now on the screen. MR. OSTROWSKI: Well, actually, though, your -- THE COURT: Yeah, but how can you evaluate a source code other than what it produces on the screen for the user? MR. KITCHEN: Ah, by examining the source code itself, which of course is something that Professor Brown did, and which is also, pursuant to our agreement stipulation, what defendant's expert will be doing. THE COURT: And as I understand, the source code also is what is submitted to the copyright office? MR. KITCHEN: Yes, Your Honor. That along with apparently a copy of the actually executable program that produced the images itself. MR. OSTROWSKI: Well, I have two responses. One, that Professor Brown stated that you could do an analysis of source code based on simply operating, you could operate a program as a user would and then logically deduce the source codes that are necessary to produce those functions that the user is using. Secondly -- THE COURT: I would think that might be true. If a certain egg hatches and produces a certain type of fowl or bird, you can pretty much go back and say what type of an egg it was. MR. OSTROWSKI: And we also have undisputed evidence that they did start out with Mr. James' program and then they claim they modified it, and we don't accept the fact that they, we don't accept that claim whatsoever. MR. KITCHEN: Well, if we -- MR. OSTROWSKI: And it would be nice if we knew, if God came down on earth and told us exactly what source code went along with which version, but we don't necessarily accept the representations about that. MR. KITCHEN: Well, if we have, if we have an expert here who can talk about eggs and birds, then I think, Your Honor, you're absolutely right. Then we can draw some conclusions looking at the bird and speculating on the egg. But this witness has not been qualified as an expert able to do that. MR. OSTROWSKI: Oh, that's, that's ridiculous. MR. KITCHEN: Professor Brown said that he could make, draw some conclusions. But I don't think that Professor Brown ever said that, oh, yes, if you look at the screen and it's similar, that it's unequivocal that the, that they had the same source code. In fact, he said precisely the opposite of that. And if, and if that's the case, then I think all that can be pointed out is the similarities on the screen. It can't be -- it's going to take more than this witness' testimony, and this witness hasn't demonstrated the competence or expertise to be able to say that the only way this screen could be as similar as it is is to have had the same source code as mine. MR. OSTROWSKI: Well, it's, I think it's an improper objection. It goes to the weight of our evidence, not to the admissiblity. He is qualified. The case law says that functionality from the user's point of view is an element. There's plenty of evidence that they had Mr. James' source code. He's simply saying that -- MR. KITCHEN: I have no problem with that. I have no problem with functionality. MR. OSTROWSKI: -- in his opinion they're continuing to use his source code. Based on his knowledge as the author of the code and using the program, he's saying that in his opinion, and he is an expert, that these are his source codes. MR. KITCHEN: I have no -- MR. OSTROWSKI: And that goes to the weight -- MR. KITCHEN: Okay. No. I -- see, I don't have a problem -- MR. OSTROWSKI: It's an improper objection. MR. KITCHEN: No, no. I don't have a problem with that. I don't have a problem with him pointing out the similarities in the function, particularly from the user's standpoint, because when we're looking at the screen that's what we're really looking at is from the user's standpoint. What I have a problem with him and I'm objecting to it and saying that he doesn't have the competence, and it's not just for lack of expertise, he also doesn't have the competence because he hasn't seen the source code that is producing the image that is currently on the screen before the Court. And based on that, he can't say that the source codes are similar. He can say their functionality is similar. He can say their appearance on the screen is similar. But he can't necessarily say that the same source codes were produced. MR. OSTROWSKI: I think it goes to the weight, not to the admissibility of the evidence. Access is undisputed here. It's undisputed that they had access to Mr. James' source codes and that has to be the foundation of all of these questions. MR. KITCHEN: Well, yes, but leaping from access to then saying that what we can't see must be similar can't follow. MR. OSTROWSKI: Well, there's already -- MR. KITCHEN: This witness can't testify that the source code that produced this particular screen that we're looking at right now is the same source code as his own. THE COURT: Isn't this a matter for argument after we get the evidence completed, if we ever do? MR. OSTROWSKI: I think so. I'm not saying it's the strongest best evidence of similarity, Your Honor. I'm working with what I have. And certainly it's subject to impeachment, but I think it's good evidence. The Court will have to decide how good it is. MR. KITCHEN: Well, whatever. I made my point. THE COURT: Shall we take a recess? MR. KITCHEN: Sounds good. MR. OSTROWSKI: Yes, Your Honor. THE COURT: Recess. (Recess taken) CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. James, we're in the middle of analyzing Plaintiff's Exhibit 36, which is NOVP9, and can you continue operating the program and commenting on differences or significant similarities. Have you noticed any differences at this point? A. No, I haven't. Q. You're at the main menu screen? A. Yes, I am. Q. Okay. Can you go through and pick a category, and any differences here? You're in the list of files of, what kind of programs? A. This is DIR list. Q. Operating systems? A. Yes. Q. Okay. A. There's a slight difference right here on the status line. Normally, I would have -- in fact, I had this here centered, that told the, the description. That's not centered. Q. Which isn't centered? Now, be very specific because I'm not following you. A. The category of that text right there is not centered, but other than that it's the same. Q. Okay. A. It has the same function and the same use. Q. There's a command, what are we calling that, the status line at the bottom? A. Yes. Q. Now, can you point to Defendant's 1 -- THE COURT: Let me interrupt. Differences from what? MR. OSTROWSKI: Defendant's 1, Your Honor. THE COURT: Is that right? MR. OSTROWSKI: But also the -- THE COURT: Is that what you're saying, the differences from Defendant's 1, your source code? THE WITNESS: I -- THE COURT: Is that what you're saying? THE WITNESS: Yes. THE COURT: Is that the comparison you're making? THE WITNESS: Yes, Your Honor. MR. KITCHEN: We're talking about the bottom line, the status line? THE WITNESS: No. MR. KITCHEN: I'm sorry. Didn't he previously say status line? MR. OSTROWSKI: I was -- THE COURT: Before that he was talking about something not being centered. MR. KITCHEN: Okay. Your Honor, I notice there's, I think pretty uniformly, 25 lines on the screen. Maybe if we knew which number the line was, it would be the best way of describing it. MR. OSTROWSKI: You could get into that on cross. THE WITNESS: I sure hope so. BY MR. OSTROWSKI: Q. That command line at, status line at the bottom, can you point to anywhere in your source codes where those exact words appear, and if you want, we have an index of modules, if you could tell me which module it is. A. I will proceed from INT DIR to execute. Q. That's on 9, INT DIR is on page 9. A. Execute. Q. That's on page 20. THE COURT: Wait a minute. Who's testifying? MR. OSTROWSKI: Your Honor, we have an index of modules. I'm simply -- THE COURT: When you say 9, you're suggesting that Mr. James look at 9? MR. OSTROWSKI: Yes. THE COURT: All right. And he said nothing. Then you said 20, and again he said nothing. THE WITNESS: I asked him for INT execute, and he said page 20. THE COURT: I know, and then you said nothing. He's not testifying, you are. THE WITNESS: In my module INT execute -- BY MR. OSTROWSKI: Q. Are you on page 20? A. Yes. I am on page 20. First, I was proceeding from this screen, which is the category area, and this is INT DIR. When you press enter, you're actually executing, going to an execution option, or option to bring up another screen. And I refer to this as INT execute. And from, from this particlar option, INT execute, we have the options -- THE COURT: What page are you on? Page 21 now. THE WITNESS: Yes. We have these options. THE COURT: Page 21 compares with what? BY MR. OSTROWSKI: Q. Can you point out -- the screen on the computer now? A. Yes. Q. Can you point out any similar commands? A. Yes. Right here it says, commands options are as follows, extract, which is extract right there. Q. How many lines from the top are you on page 21? A. One, two, three, four, five, six. Q. Okay. And you're comparing that to the bottom of the screen? A. Yes, I am. Q. Okay. Any other similar exact language? A. Copy, C-O-P-Y. As I said, that they, they use a different highlight. They use a color highlight rather than my greater than less than highlights to highlight the letter, to separate one letter, but the words are the same. Q. Okay. Now -- A. And they're using the same module. Q. Well -- A. My module right here. Q. -- in addition to those words being the same, in your opinion is the source code that's driving what's on the screen now similar to the source code that's in Defendant's 1? A. Yes. If you hit X it would run my module right here, which is unzip it, unzip it. If you hit C, right here, it will run my module to copy it. Q. Let me ask you this. You have a module called unzip it? A. Yes. Q. And where did you get that from? A. I wrote it. I -- from my head. Q. Did you copy it out of a book? A. No, I didn't. Q. Okay. A. It will not appear anywhere, anywhere except in my code. Q. Okay. A. The right here, if you hit Q you would quit. Q. I don't see quit on that screen now. A. If you hit G you would go to work area. Q. Is there a command that's similar to quit on the screen? A. Yes. There's -- THE COURT: On the screen. THE WITNESS: On the screen there's an exit that corresponds with -- THE COURT: ESC -- THE WITNESS: Yes. THE COURT: Exit is the same as quit? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. Can you continue operating the CD ROM program and look for differences. A. I'll hit X, and what this is going to do is run the module unzip. Q. Okay. A. What page is the unzip on? Q. It's on page 26. MR. KITCHEN: Let the record reflect that the computer made a sound when one of the keys or functions was pressed. BY MR. OSTROWSKI: Q. What just happened there, Mr. James? A. I'll have to pick a file. THE COURT: What made the sound? That sound? Why is that? THE WITNESS: That's because there is a different version of a utility, PK Unzip, on the hard drive. BY MR. OSTROWSKI: Q. On which hard drive? A. On the CD ROM drive. THE COURT: Now, this is a Microsoft copyright. BY MR. OSTROWSKI: Q. You're going to have to explain that, Mr. James. THE COURT: Isn't that right? BY MR. OSTROWSKI: Q. What is on the screen now? A. Microsoft, copyrighted by Microsoft. Q. Why did we hear the beep? A. You see this utility right here, PK Unzip. THE COURT: What about Microsoft? THE WITNESS: That's the name of the DOS operating system. THE COURT: That is what is copyrighted by Microsoft? THE WITNESS: Yes, it is. BY MR. OSTROWSKI: Q. Okay. What -- why do we have the beep? A. Because it's using a different version. Q. What's it? A. The retrieval, the retrieval is using a different version. Richard has put a different version on this CD ROM, a different version of PK Unzip. Q. Okay. A. It's a utility like list, like list, that would be called. Q. Okay. Can you go, can you go back -- THE COURT: When you're talking about a different version now, you're not referring to that thing that's stuck up in the right hand corner and says, version 3.00. THE WITNESS: No. No, Your Honor. I'm -- THE COURT: You're using version generally. BY MR. OSTROWSKI: Q. Can I ask you to go back to -- THE COURT: Is that right? You're using version in a general sense? THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Can I ask you to go back to, after the sound of that beep. Okay. Is that where we were? A. Yes, it is. Q. Okay. I'm going to ask you to try to unzip a file and see if it's the same -- okay. Well, that's where we were. MR. KITCHEN: Let the record show that the computer made another beep. BY MR. OSTROWSKI: Q. Okay. Where are we now? Where are we now? You've got to tell us what you're doing. A. There's a different version of P -- THE COURT: Where are we now? THE WITNESS: We're at a DOS level. I dropped out of the program. BY MR. OSTROWSKI: Q. Are you saying that the file retrieval won't work with the version of Unzip that's on the -- A. That's what I'm saying. Q. -- on the computer? Is there something you can do about that? A. Yes, there is. Q. Which is what? A. Copy a different version into a DOS path. Q. Have you done that? A. I'm doing it now. Q. Okay. Okay. This Unzip program, whatever version, it's not on the CD ROM? A. Right now, I'm starting to use one on the CD ROM drive. The -- Q. Well, what I'm asking you is, is it -- well, let me ask you this. Is it part of the file retrieval, this Unzip? A. No, it's not. Q. It's another program that the user needs? A. Yes, it is. Q. And we didn't have the right one on the computer when we brought it into Court? A. That's correct. Q. Okay. And have you fixed the problem? MR. KITCHEN: Let the record show that the computer beeped again. MR. OSTROWSKI: So did the lawyer. THE WITNESS: That's an annoying sound that was inserted into my program. What I would do -- MR. OSTROWSKI: Okay. It's also a red herring. So I'm going to ask you to go on and operate the program, and not -- THE COURT: Well, how do you know it's a red herring? MR. OSTROWSKI: It's my opinion. THE COURT: You're not the witness. MR. OSTROWSKI: Well, he's answering a -- THE COURT: It's hard to explain. He had entered it into the system, I suppose. He didn't just throw a bunch of fish into his system. MR. OSTROWSKI: He's answering a question from Mr. Kitchen. I think it's improper. MR. KITCHEN: Well, Your Honor -- THE COURT: No, but he, he, Mr. Kitchen said, let the record show that the computer beeped and then Mr. James started saying something. MR. OSTROWSKI: Well, in my opinion, having observed Mr. Kitchen, he is attempting to distract my witness, and I'm attempting -- THE COURT: He did not. He was making something known for the record, which is very proper. BY MR. OSTROWSKI: Q. What are you doing now? You're installing the new Unzip? A. Yes, I am. Q. Okay. Are we ready to execute a file? MR. KITCHEN: Let the record show that the computer beeped. THE WITNESS: It's going -- MR. OSTROWSKI: Are you answering a question from Mr. Kitchen? THE COURT: He didn't ask a question. He said, let the record show that it beeped. It's very proper. MR. OSTROWSKI: Please ignore all the comments of Mr. Kitchen for the rest of the trial. THE COURT: But nevertheless, Mr. Kitchen can make that type of comment which is appropriate. MR. OSTROWSKI: I understand but -- THE COURT: It need not be responded to. MR. OSTROWSKI: -- Mr. James does not understand that he doesn't have to respond. BY MR. OSTROWSKI: Q. Now where are we now, what are we doing? A. We're in the, my module that's referred to as EXE2, execute 2, and the beeps are happening because this, the program inserted a lot of annoying beeps into my application. I would never have put those annoying beeps there. Q. Of course, that's just your opinion of -- THE COURT: So you started to say before you had put them in, but now you said you did not put them in. THE WITNESS: Those beeps, when you're installing the program, it's giving prompts to the user that, that -- THE COURT: Did you install them or did you not? THE WITNESS: Not in those particular points that -- THE COURT: Sometimes you do. THE WITNESS: -- the heckler was referring to. THE COURT: Sometimes -- what do you mean, the heckler? THE WITNESS: That -- THE COURT: Mr. Kitchen is not a heckler. He just noted for the record that something happened, which otherwise we'd have no record of. You have a noise on the record and nobody, the transcriber wouldn't know what it was. Now, did you put beeps into your program? THE WITNESS: Yes, Your Honor, but not -- THE COURT: But you didn't put these beeps in. THE WITNESS: Yes, that's correct, Your Honor. THE COURT: All right. Why do you put them into your program? MR. KITCHEN: There was another beep, Your Honor. THE COURT: Why do you put them into your own program? THE WITNESS: Most of the beeps that I put in is for warnings. THE COURT: All right. You did not put these in. THE WITNESS: No. MR. KITCHEN: Let the record show that the computer is now making a high pitched chirping sound. THE COURT: Something I can't hear, but then I have poor hearing. BY MR. OSTROWSKI: Q. Yeah. I'm totally lost. Do you know where we are, Mr. James? A. Yes. Q. Let the record reflect that the motor from the computer is humming. Are we ready -- THE COURT: And the lights are on in the courtroom. MR. KITCHEN: Well, I'll object to both the comments from counsel and the Court. THE COURT: All right. Let's proceed. Let's proceed. BY MR. OSTROWSKI: Q. Are you ready to extract and unzip a program? A. There -- Q. Yes or no? A. No. Q. Why not? A. I would have to take a unzip utility from a different disk that -- the retrieval is working, but this disk is not functioning. I can set up my retrieval, the same retrieval that's on this disk, that's functioning correctly, but the disk is compiled with problems. It would take a second to set it up. I would have to set a matching PK Unzip utility that my retrieval used, but as far as all the rest of the applications, had -- Q. Okay. Well, let me ask you this. Can you, without unzipping a program, can you -- A. Yes, I can. Q. -- go through the rest of the program? Do you have any reason to believe that the unzipping feature on this CD ROM is any different from the one you wrote? A. I know it is different, and it's not set up properly. And what's happening is, the further that this, this utility -- the further that this whole project gets away from me, the less functional it's becoming. Q. Okay. A. And that's what's being reflected. Q. Okay. So the changes that have been made in the program have made it a worse program? A. It's making it cumbersome for the user. Q. Okay. Can you continue and see what else you can find out without unzipping, because we can't unzip? A. If I press enter, it gives the options, and before the tampering it would have unzipped at this particular point. But I did manually unzip some files and you would go into this area right here, after the files are unzipped, and after you have unzipped files you can press enter, the same way. It's running. The application -- Q. Which module? A. In execute 2. Q. Okay. That's in Defendant's 1? A. Yes, it's in Defendant's 1. I'll have to page through it to find the page for execute 2. Q. That's okay. We don't have to do that. Okay. I take it you can't -- can you execute now with the problem? A. There has to be a program -- THE COURT: One thing you can do is wait for the question before you start an answer. BY MR. OSTROWSKI: Q. Can you execute without having unzipped? A. No. Q. Okay. So we're not going to do that. What else would we do, just sort of back out of the program at this point? A. At this point you can see the execute option, the identical screen that's on the previous ones. Q. Okay. How do we get out of the program at this point? A. At this point you can hit no, that we're not going to execute this program because it's not an EXE program, and at this point, when we back up from this menu, it's going to prompt you to delete the files in the work area. And that's the same. And if you answer yes -- Q. Let the record reflect that the witness stated that before that option appeared on the screen, and what command did you hit? A. I pressed escape. Q. And then it appeared on the screen? A. Yes. Identical to all the versions with this identical words. Q. Okay. A. The identical words, delete the files in work area, C:\ Night. Q. Okay. You want to delete those? A. And the prompt was yes, is Y, to delete the files. Q. You did delete them? A. Yes, I did. Q. Okay. Now we're back to a highlight screen. How do we -- A. Now we're back -- Q. -- get rid of that screen? A. By pressing escape. Q. Anything similar or different about that screen, compared to -- A. That screen is just a little bit smaller, but -- and the color is different, but other than that it's identical. Q. To yours? A. Yes. It has the same words, the highlighted file is, what the file, the directory area is for the directory, and the number of text files is with the appropriate number. Q. Okay. Well, let's back -- THE COURT: What's at all magic about that, or singular or important? THE WITNESS: Your Honor, this, this is extremely trivial. It's so trivial, it's like a grain -- THE COURT: That's what I thought. THE WITNESS: -- grain of sand. THE COURT: That's what I was thinking. THE WITNESS: But it's like you're finding two identical grain of sands with no changes, you know, and with all the variations there is in human minds, you know, like, I can't see why that would be so totally identical, identity in these, something that's supposed to be different. THE COURT: So there isn't that -- there aren't that many different ways of saying that or conveying that intelligence, is there? THE WITNESS: I think there would be a lot of different ways, even if I, if I did it from scratch, without having my own modules and libraries that I have compiled over the years, it would not even resemble this. BY MR. OSTROWSKI: Q. Now, are you referring -- when you talk about this, are you talking about the three sentences in the middle that are in white? Are you talking about the whole box? THE COURT: He's talking about the three in the window. THE WITNESS: I'm referring to that. BY MR. OSTROWSKI: Q. What about the window itself? A. Even the window itself, that's my program called get screen. Q. Okay. Now, can you back out of this and get to the main menu? One more step to the main menu, and how do we get out of the program? A. By pressing escape. Q. Okay. Is that CD ROM being run by a file retrieval which is substantially similar to Defendant's 1? A. Yes. I notice about three or four differences. Q. Did you comment on those already? A. One of the differences -- THE COURT: Have you commented on them already, or are there some as to which you haven't mentioned? THE WITNESS: I commented on all of them except one. BY MR. OSTROWSKI: Q. What was the one you didn't comment on, and please comment on that. A. There's no closing screen with credits. That was totally removed. Q. Okay. Is it substantially similar to Plaintiff's 18 as well? A. It is. Q. Showing you Defendant's Exhibit 18, can you identify that? A. Yes, I can. Q. What is it? A. It's a CD ROM disk. It's labelled, it has a disk, a compact disk storage, and it's labelled Daytime Express. Q. Daytime Express? A. Yes. Q. I'd ask you to fire that up. I have to ask some foundational questions, Your Honor, to, prior to admitting this into evidence. THE COURT: Prior to offering it into evidence. MR. OSTROWSKI: Offering it into evidence, Your Honor. BY MR. OSTROWSKI: Q. Can you fire this CD ROM up? A. First I'll delete all these files. I really wouldn't have to because -- THE COURT: But it would be helpful if you did. THE WITNESS: It's not as as those other ones. It's fired up. BY MR. OSTROWSKI: Q. Yeah. What are you doing to fire this up? A. I typed Z for CD ROM, to go to CD ROM drive. Q. And then what? A. And I typed Night and then pressed enter. Q. Why did you type Night? A. That's the name of the executional file that's on it. Q. How do you know? A. I did a directory list during the break. Q. Okay. A. During the break yesterday. Q. And what's hap -- what's going on now here? A. It says, Night Owl CD ROM File Retrieval System, version 50, and it says, cannot open config, Night.config file. Q. Now, is that language something that you're responsible for with your having written certain source codes? A. That cannot open the config file. It's a reference that's in my, in it, new config situation on module. Q. On Defendant's Exhibit 1? A. Yes, it is. Q. Okay. Can you continue with the next logical step to -- A. It's continued with the new config module as prompting the user whether he has a color or monochrome monitor. Q. Okay. And we have color, so -- A. And it's continued prompting the user for location of his CD -- of his Night default directory. Q. Which is what, Z? A. The -- for the hard drive, it would be C:\Night. Q. Okay. Would you do that, please? A. It's prompting it for the CD ROM drive letter specification which in this case is Z. Q. What is the significance of that S on the third line in the brackets with a colon? A. The CD ROM drive that I have installed in my machine was, it was specified drive letter S. Q. Okay. Did you -- you the author of that single S? Did you write that S in there? A. I put that hard coded into my code because it was a default of my drive. I -- yes. I wrote that into this particular code. Q. Okay. Go ahead. A. And it prompts for a GIF file just as the file previous to all the rest of them we looked at. Q. Is that something that you wrote, that GIF, G-I-F file viewer? A. It's prompting to -- Q. Yes or no? A. I wrote all the words there, except the words GIF file viewer. Q. Did you have something in the -- A. I wrote the words, what is the name of your default utility. Q. Okay. Continue. A. I asked, is the above information correct. And I -- THE COURT: Wait a minute. What's this, what is the name of your default utility? THE WITNESS: Now, he asked me, did I write those words. THE COURT: But you read some words, and I don't see them on the -- THE WITNESS: I quoted the words that I -- THE COURT: I don't see them on the screen. THE WITNESS: Yes, Your Honor. THE COURT: Right? BY MR. OSTROWSKI: Q. Where, where -- they're not on the screen, are they? THE COURT: No. BY MR. OSTROWSKI: Q. Where did those words come from? A. You asked me, what words did I write. I told you, I wrote, what is the name of your default utility. That's the words I wrote. Q. Okay. THE COURT: And they changed utility to Night Owl directory? THE WITNESS: No, they changed it to GIF file viewer, right here. GIF file. They put GIF file viewer. I put utility. THE COURT: Oh, I see. THE WITNESS: Utility. THE COURT: I see. BY MR. OSTROWSKI: Q. Okay. Go ahead. Does this look familiar to you, by the way, this, way this program functions? A. It's totally familiar. It's, it's in here it says, it's running the new config -- Q. In where? You've got to -- A. It's in Defendant's Exhibit number 1. Q. Okay. THE COURT: Where? Where? Where? BY MR. OSTROWSKI: Q. What page? What's the module, and I'll give you the page number. A. In new config. THE COURT: What page? MR. OSTROWSKI: That's on page 12, I believe. I have the index, Your Honor, because he's not -- THE COURT: Well, he's testifying. You may point out something but I want it from him. THE WITNESS: In it new config is -- THE COURT: Page 12. THE WITNESS: Yes, Your Honor. Your Honor, there are a few words that are slightly different, very slightly different. MR. OSTROWSKI: I think you've already testified -- THE WITNESS: Right there. BY MR. OSTROWSKI: Q. The basic functioning of this program, is this familiar to you? A. Yes, it is. Q. Okay. Because that's on Defendant's -- Defendant's 1 works like that? A. Yes, it does. Q. Okay. Can you continue to the next step? What do we do there? A. I hit Y to confirm, and no not to copy all those files off the CD ROM disk onto the hard drive, all those DIR files. Q. Okay. A. Then press enter to continue. Q. Now, what do we have here? A. You have the, the category screen. Q. Does this look familiar to you? A. Yes, it does. Q. What does it say on the top -- THE COURT: Even looks familiar to me. BY MR. OSTROWSKI: Q. What does it say in the top middle? A. It says Daytime Express directories. Q. And on the top left corner? A. It says Night Owl CD ROM File Retrieval System. Q. Okay. Can you get into one of those categories and look at a file and -- A. I'll press enter on Basic and Quick Basic. Q. You got a list of Basic files here? A. Yes, we do. Q. Can you extract one and execute it? A. I'll press enter and I have the options to extract. I'll use zip, I'll hit Z. Q. Do we have that problem with unzip on this version? A. No. No, we won't have that problem. We wouldn't have that problem. I just copied, I just took the utility off the other disk to this disk. MR. KITCHEN: Your Honor, Your Honor, I'd like to offer a stipulation here. I notice that this particular screens that come up have a version 5.00 in the upper right hand corner. THE COURT: That's right. MR. KITCHEN: And I think we've seen that before. THE COURT: We have seen that same -- MR. KITCHEN: Was it on -- THE COURT: -- version number before, although Mr. James has given me to understand it doesn't really mean that it identifies a particular program. MR. KITCHEN: Well, I don't think it does from his standpoint. He didn't come up with those version numbers, but I think we've seen it before -- THE COURT: Well, I -- MR. KITCHEN: -- and I -- THE COURT: Well, I have seen it before. I've made note of it before. MR. KITCHEN: And I -- my -- MR. OSTROWSKI: What are you doing, Mr. James? You've got to explain what you're doing. MR. KITCHEN: I note that -- MR. OSTROWSKI: All right. Could you just hold, hold until we're finished. MR. KITCHEN: I note that Plaintiff's 24, for example, PDSI006-1 had a similar thing that said version 5.01, and I, I'm just wondering if we can find -- THE COURT: 5.01 as opposed to 5.00? MR. KITCHEN: Yeah. That's what I, I think was on version -- on Plaintiff's 24. Now, if in fact, Your Honor, we have another one that we've already identified that has that version 5.00 in the corner, I would stipulate that, that the retrieval on is the same retrieval. MR. OSTROWSKI: Okay. I'll accept that stipulation. THE COURT: All right. The stipulation is that a version number is identifying of a program. Is that right? MR. KITCHEN: Yeah. Even though, even though there's testimony by Mr. James that he hasn't come up with these version numbers, at least we can assume there's some consistency in those. The only thing is that I can't find the one and -- that had that version number. So far I've got, I know that PDSI004-1 recut was, had a version 3.0 on it, and -- oh, yes, here it is. PDSI004-2, which is Plaintiff's 32, I believe has a screen that says version 5.00. So -- THE COURT: It does. MR. KITCHEN: Yeah. So, so that being the case, I'd say that that retrieval that's on this one, except for obviously the categories and the label and that sort of thing, has the same retrieval as was on Plaintiff's 32. THE COURT: So identifies the retrieval system. What do you call it, the program, the what? MR. KITCHEN: Yes, sir. MR. OSTROWSKI: File retrieval program. THE COURT: What's it identify? MR. KITCHEN: It, it identifies the particular version of Night.EXE which was used on that particular CD ROM disk. THE COURT: All right. Go ahead. BY MR. OSTROWSKI: Q. Okay. Mr. James, is this, does this Exhibit have your file retrieval program on it? A. Yes, it does. Q. Okay. Can you -- MR. KITCHEN: Your Honor, I'll also offer to stipulate that the testimony that he's already given with regard to Plaintiff's 32, which had that version 5.00 on it, and its similarities and differences between his own program and that sort of thing, would also apply to this. MR. OSTROWSKI: Well, I don't think that's necessary with the prior stipulation, but -- and with his testimony that he's already given. BY MR. OSTROWSKI: Q. Does this look similar to a particular prior version that you can recall looking at, by Exhibit number? MR. KITCHEN: Your Honor, I'm offering to stipulate that it is. THE COURT: Evidently she doesn't want to dance with you, Mr. Kitchen. MR. KITCHEN: All right. MR. OSTROWSKI: I'm almost done with this disk anyway. BY MR. OSTROWSKI: Q. Can you exit out of the -- and what does the copyright screen say? A. Copyright 1991 by Night Owl Computer Service, 219 Potomac Avenue, Buffalo, New York 14213. Q. Okay. Showing you Defendant's Exhibit 18, is there any indication of the manufacturer on there? A. I don't see any indication. Q. Well, calling your attention to the inner circle, are there any faint letters in there that you can read? A. I -- the inner writing says, Daytime Express, Nimbus. It's manufactured -- THE COURT: Nimbus is the manufacturer, a manufacturer? THE WITNESS: Yes. Mastered by Nimbus. Yes. There is a identification. MR. OSTROWSKI: I'd like to offer this into evidence. No objection to cross examination on it. THE COURT: You're offering Defendant 18? MR. OSTROWSKI: Yes, Your Honor. MR. KITCHEN: No objection. THE COURT: It's received. (Defendant Exhibit 18 received into evidence.) BY MR. OSTROWSKI: Q. Mr. James, you could take the stand again now, or the sit. Do you recall receiving a check from Richard Graham on July 19th? A. Yes, I do. Q. Okay. You admit that you got such a check? A. Yes. Q. Cashed it? A. That's correct. Q. Now, when did you give Mr. Graham a working version of a file retrieval in the C language for the first time? A. Around the second week, first or second week in July. Q. Okay. When did you learn the C language, by the way? A. About six years ago, six or seven years ago. Q. And to put that working version of the C for the CD ROM together, what -- how did you do that? A. Just by compiling my libraries. Q. Okay. And did you have to invent any new libraries -- when you say libraries, is that like a module? A. Each one of those functions can, is a program in itself, and it can be referred, yes, as a library element. Q. Okay. What, did you create any -- did you create any new libraries specifically for Mr. Graham -- A. No. Q. -- for the C version? A. No. Q. Okay. Do you recall, and this is going to be a convoluted question, can you recall the last date -- can you recall the date that you wrote the last library that you gave Mr. Graham? In other words, was it 1980, was it July 19th, 1991, or is that impossible to answer? A. It's kind of hard to answer because once you put the routines together you do make changes to make them fit like a glove. So my -- if use one of my library functions to paint the screen, I'll use the same library, but I'll modify the color, or modify the screen size, but it will still be the same library. So it's hard to say when I did it. If Richard and I rerun the program and decide that, well, let's do this or let's do that, you know, after I show it to him, if he, you know, has a question, I would just make a modification. And that's with all my customers. Q. Let me ask you this. THE COURT: Now, are you talking about a library now? THE WITNESS: Yes, Your Honor. THE COURT: And you said, one, you created no new library for Mr. Graham, and yet then you said you gave him one. THE WITNESS: In the execution of program, it's a collection of libraries. My attorney asked me, when did I write the last one, and I said it's hard to say because I would -- libraries I've already written might be changed, might be slightly modified, and maybe I should say that that's the last time I wrote it because I made a change on it. BY MR. OSTROWSKI: Q. Okay. When you, you mentioned -- THE COURT: Now you're coming down to it, one library. THE WITNESS: One library or one element of the program. If -- THE COURT: Well, what are you talking about, one library or one element of the program? THE WITNESS: Mr. Ostrowski asked me when I wrote the last one, so I guess I was referring to the last library, and well, three weeks before I gave, before he produced this, this first or second week in July I, you could say I made final modifications to some of my library routines. THE COURT: Oh, is this a library then that was created for this work you were doing with or for Mr. Graham? THE WITNESS: It was created for my own personal use and -- THE COURT: But you gave it to Mr. Graham or made it available to him? THE WITNESS: Yes, Your Honor. THE COURT: And this is one you had created for that purpose? THE WITNESS: No, Your Honor. THE COURT: I see. All right. Go ahead. BY MR. OSTROWSKI: Q. Okay. Now, the final modifications that you made, now, did you -- when did you make -- you mentioned something about the second week of July you gave him a working version of the program. Is that when you gave him the final modifications that you mentioned? A. No. Actually it was, it was on July the, July the 30th, around the last part of July, whichever. Q. That was the final modification? You gave it to him? A. You're saying the absolute, with all our relationship, the absolute last modification? Q. Yes. A. It was in September, around the third week of September. Q. Okay. Now, what I, just getting back to what I was asking you about. You stated, did you not, that you gave him a working version of the C in the second week of July? A. Yes. Q. With libraries that you had had previous to that? A. Yes. Q. Let me ask you this. Did you have substantially all of those libraries written in the year 1990? A. Not all of them but a lot of them. Q. Can you give a percentage of the modules that you had already written, let's say in December of 1990? A. Maybe between, maybe close to 75%, between 50 and 75%. It's hard to say because it's something that, it's something that's totally ongoing all the time. Q. Okay. But let me, let me ask you about, say June 1st, 1991. Did you have substantially all of the libraries written on June 1st, 1991 that you eventually gave to Mr. Graham? A. Yes. Q. In the second week of July? A. Absolutely. In fact, in January '91 I had given a presentation on my menuing system, and I used essentially the same from that time. MR. KITCHEN: Excuse me. What was that date? THE WITNESS: January in '91. BY MR. OSTROWSKI: Q. Okay. Can you give a percentage of, can you give a percentage of the source code that you had written by June 1st, 1991 that you gave to Mr. Graham in the second week of July? A. Can you ask that again, please. Q. Can you give the percentage -- in other words, comparing what you had done in C language in June, by June 1st, 1991 to what you gave Mr. Graham in the second week of July, what percentage had you already written by June 1st, 1991? Was it 100%, 50%, 75%? A. I would say 90%. Q. 90%. And would the date July 1st mean anything in terms of the changing of the program or continuing to write it? Had you done -- in other words, did you do more work in June? A. The -- it's hard to give finite responses to things that involve ongoing changes. I mean, every customer that I have, when I present something to this customer, according to what they like and what their feelings are, I would make a change that night and upload it to their telephone. In fact, most of my customers, including Richard Graham, I did the work at home and made the changes over the telephone and talked to them about how the things looked. Q. Okay. In July 1991, what were you doing employment-wise? A. I -- driving cabs and managing a stand at the flea market. Q. Okay. A. And consulting. Q. Who did you consult for or, well, how many people did you consult for other than Mr. Graham during that month of July '91? A. For pay, there wasn't a lot for pay but a few that I had paid me very well. Q. I'm not asking you about pay. I'm asking you, how many people were you consulting for? A. On the professional level, five, five or six, but on a semi-professional level, with personal users, I would do tutoring and sometimes I'd get fees. I would say that that number would be in the, around, it will be a number of 10's. Between 30, something, 30 and 50. Q. Okay. And were you running a BBS in July '91? A. Yes. I was running a BBS and I did give non-contact consulting by, you know, typing in responses and asking questions and making telephone calls to maybe, that number would be in the hundreds. Q. Okay. Now, with respect to this $200 check, which is Plaintiff's Exhibit 12, the first check, July 1990 -- July 19th, 1991, why did -- what did Mr. Graham say to you with respect to giving you this check? THE COURT: If anything. BY MR. OSTROWSKI: Q. Was there some discussion with Mr. Graham about why you were being given a check? A. Yes. Q. And what was that discussion? A. I had asked him for money because I was short, and I just needed some cash. So he told me I was going to be published on his next CD ROM disk and I would be getting a pay -- a commission, so he just gave -- first he loaned me the money, and then he told me I -- Q. I'm just asking you what he said? A. Don't worry about it. You've been, you know, you're going to get a commission off this disk, so sure, I can give you the money, don't worry about paying it back. Q. Did you get any -- okay. During July 1991, were you over at Richard's office working on the program? A. Never. Q. Were you over there not working on the program? A. Richard, at that time we was very close friends. I was at his house a lot of times, but never, the only thing I was doing at that time was, as I mentioned before, tutoring Richard in programming concepts. He was interested in programming but he was a programmer. I was showing him how to -- Q. Were you over there -- A. -- make, answer messages on his BBS, how to type grammar and things to that effect, and just giving him general consulting on his computers, as a friend. Q. Were you -- how much of the consulting related to the operation of your file retrieval program? A. Hardly any of it, none of it. Q. Were you over there demonstrating how your file retrieval program worked, in July? A. Yeah. We would run the program on the, on his disk and on his BBS because that's what it's based on. It was what I ran on my own BBS. Q. Now, on Plaintiff's 12, there's a check August 11th, '91 to you for $200 from Mr. Graham. Did you receive and cash that check? A. Yes, I did. Q. And -- MR. KITCHEN: Excuse me. What date? MR. OSTROWSKI: August 11th, 1991. BY MR. OSTROWSKI: Q. Was there any discussion between you and Mr. Graham about why you were being given this check? A. I asked Richard for money. Q. And what did he say? A. I asked, I asked him to borrow, I wanted to borrow the money but he, he gave it to me on, on account that I was going to be published. He was very excited. His words -- THE COURT: What did he say? BY MR. OSTROWSKI: Q. Just what he said? A. I'm going to replace you -- or replace Nimbus with you. I mean, Folio. My disk is making so much money right now. Everybody is so overwhelmed about your retrieval. Q. Which retrieval now? Are we -- which retrieval? A. The Quick Basic program. Q. Okay. A. Don't worry about it. We're going to be millionaires. And he wrote out the check and gave it to me. Q. Okay. Now, I asked you about what you were doing in July as far as employment and other activities. Are all those -- were you involved in all those activities, the same activities in August? A. Yes. Q. Such as driving a cab, the flea market, BBS and consulting? A. Yes. Q. Okay. Now, in August, did you ever go over to Richard's place and work on your program in the sense of writing it or developing it? A. No. Q. Or were you over there for other reasons? A. Yes. I had dinner with his family and watched TV and tutored Richard. Q. Tutored him on computers? A. Computers and literacy. Q. Okay. Now, did you get a check from, Plaintiff's 12, check dated September 13th, 1991, $250, from Mr. Graham to you, Mr. Graham's D/B/A. Did you get that check? A. Yes. Q. Did you cash -- MR. KITCHEN: Excuse me. That date again? MR. OSTROWSKI: September 13th, 1991. BY MR. OSTROWSKI: Q. Did you get that check? A. Yes, I did. Q. Did you get a check dated September 20th, 1991? A. Yes. Q. For $250? A. Yes. Q. And you cashed it? A. Yes, I did. Q. And another one on, out of order here, back to September 6th, 1991 for $250? A. Yes, I did. Q. Did you have discussions with Mr. Graham about what these checks were for, the September checks? A. Yes. Q. And what, what did he say? A. They was on account, a down payment on the commission that I was to get. Q. Okay. Now, in September of '91, were you involved in the same work and other activities that you testified you were doing in July and August? In other words, the flea market, the cab, and consulting and the BBS? A. Yes. Q. By the way, how many hours a week back at that time would you spend on the BBS system? A. I'd have to do some multiplying and go by the week, but at the time I was spending at least, at least six hours a day, because I would respond to hundreds of messages every single day. Q. And how many, at that time, how much time did you spend at the flea market? A. I mainly spent time on the weekends at the flea market. I would go there about 8:00 o'clock and return about 7:00 in the evening, so about 22 hours. During the week I would go there sometime and set up my stand and associate with my friends there. Q. Now, from July 19th, '91 to September 20th, '91, did you get any pay stubs from Mr. Graham? A. No. Q. Did you get any document that indicated that money was being withheld for taxes or any other purpose? A. No. Q. I don't think I asked you, in September did you go over to Mr. Graham's place and write your file retrieval program? A. I -- as I mentioned, I was working with Richard and as a - - MR. KITCHEN: Objection. Not responsive. THE COURT: Yeah. Respond to the question. BY MR. OSTROWSKI: Q. Did you go over to -- A. Yes. Q. What -- well, you went over to Mr. Graham's in September and actually wrote source code on your file retrieval? A. No. Q. What did you do over there in September? A. I wrote my source code and showed it to Richard as a friend in showing him programming concepts, but I didn't do any work. Q. By, by September had there been a release with the C program on it? A. Yes, there was. Q. Okay. And was there some -- did you have a discussion with Mr. Graham about your CompuServe ID number? A. Yes. Q. When was that? A. It was around the third week of September. Q. Before that discussion, had he raised any objections to your copyright notice on the CD ROM? A. No, he didn't. Q. Okay. What was that discussion in, when was it again, September when? A. It was around the third week of September. Q. What was that discussion? What was said by whom? A. Richard asked me why was my -- why -- he -- why was my CompuServe ID number, what significance was it or something to that effect. Q. And what did you say? A. I told him it was -- I suggested it was my personal business and he had nothing to do with it. Q. Well, what did he say? A. That it was his business and he asked, he told me, he was kind of vague about the things he was saying, but he asked me to remove it. Q. Okay. What did you say? A. I told him that I wouldn't. Q. Okay. Did you have any discussions after that third week of September about the CompuServe ID number? A. When he first mentioned it, I -- Q. Well, yes or no? A. Yes. Q. When? A. There was discussion three days in a row. Q. Late September? A. Yes. Q. Okay. What was, what happened in the next discussion, as far as who said what? A. The first three times I thought he was being, I didn't know he was serious. And next time, he talked like he was speaking with authority. He spoke authoritatively, suggesting for me to make modifications to my program against my will. Q. What modifications? A. To remove my -- he didn't -- Q. What modifications? A. To remove my CompuServe ID number. Q. Okay. And what tone of voice did he use? A. He -- it was a common tone but he talked as if he had the authority to suggest for me to make changes. Q. Well, was there any discussion of copyright at that time? A. No. Q. Okay. And did you say there was a third day of discussions? A. The third day -- the first two times I thought he was joking. The third time it looked like he was totally serious. Q. Okay. What did he say on the third day? A. He said, Larry, didn't I tell you to remove your CompuServe ID out of the program. Q. And what did you say? A. Then I just came point blank and told him, I said, look, Richard, no, I'm not going to move it off. And, and he, he asked me in such a way that I, for one, you know, I was at his house at the time, and he asked me in such a way like he thought I was going to sit down and do it. And I said, I said, look, Richard, I said, what I'm going to do is, I'm going to leave until you come to your senses and then we'll, everything will be okay. I said, I don't know what's going on, but I'm, but I'm just going to leave. I said, I don't want to get excited in your house, having words with you, I have respect for you, and this is your house. And I started walking toward the door, and Richard used profanity in telling me about -- Q. What did he say? A. One of the words he used included D-A-M. I don't curse. I don't use profanity under any circumstances. THE COURT: Use what? THE WITNESS: The word D-A-M. BY MR. OSTROWSKI: Q. Damn? A. Yes. Q. Okay. And did you leave? A. Yes, I did. Q. What was the next discussion you had, and when and where? A. A few days later he called to me in an apologetic tone. Q. Okay. What did he say? I don't want you to testify about tone. You can testify about volume, if you want, but just, just stick to the words? A. He asked me to bring him a working copy of my retrieval. Q. And did you? A. Yes, I did. Q. Did you bring it over to his place? A. Yes, I did. Q. Hold on. A. We -- Q. Okay. I forgot what I asked you. A. You asked me what did he say to me as far as contact subsequent to leaving. THE COURT: Well, you were on the telephone. He asked you to bring over the program. You said you would, and I don't know what happened after that. BY MR. OSTROWSKI: Q. Did you bring over a program? A. Yes, I did. Q. When was that? Now we're in late September, or are we after that? A. It's still in September, it's about three days after I had, was going at that time. Q. Are you saying -- THE COURT: Three days after what? THE WITNESS: Three days after the day that I had left. BY MR. OSTROWSKI: Q. Are you saying this is about six days after the first phone call about CompuServe number? A. That was, that was, wasn't a phone call. That was at his house. Q. Okay. Did you bring a program over? A. Yes, I did. Q. And what happened when you brought it over? A. I had put the CompuServe ID number in such a way where it wouldn't aggravate him, if it was aggravating him. Q. Where did you put it? A. In the help screen. Q. Okay. And what was his reaction to that? A. He acted like he was, he was pleased, and he made some comments. At the time, at the time -- well, he made some comments. Q. What were his comments? A. He asked me, he made suggestions to me, I'm trying to remember the words. During this particular time, he made some references, suggestions that he owned my program, at this particular meeting. Q. Well -- A. And it was the first time he did. Q. And what did you say in response to that? A. I told him he didn't, and I told him I just couldn't understand -- at first, you know, like I thought he was calling me to apologize and everything would be okay. But he, he got, he got the program and he was excited about it, but it looked like he was trying to -- he -- the things he was saying, you know, was kind of aggravating because I, I was kind of dependent on the money that was going to be generated from this, and he -- Q. What I'm asking you is -- let me ask you this. Was there any discussion of copyright or ownership? You said there was some discussion of ownership? A. Yes. Q. Was there discussion of copyright? A. No. He made a reference. There was a mention of copyright at that particular meeting. Q. Well, when, when, or what was said? A. He suggested that he owned the program, and then he told me, you know, when I told him that I wasn't selling him the program, he didn't own it, this and that, you know, this was after he got the program, and I thought, I thought he was coming back and he was apologizing. He told me that he had copyrighted my program, and I guess he felt that because he ran down and copyrighted it, he owned it. Q. Okay. And what did you say? A. I told him that he can't just own my program by filing a copyright. The writer owned it. Q. Okay. And did you have another meeting or conversation after that about this same copyright issue? A. About a few days later he called me on the telephone, and he started, he suggested that he was having problems with his hard drive and -- Q. Is that the conversation that's on tape? A. Yes. Q. In evidence? A. Yes. Q. You've heard that conversation? A. Yes. Q. Can you give us a very quick summary of what happened in that conversation, since it's in evidence already? A. Richard called me and, and as I mentioned to you, I had been teaching him to, programming concepts. He really didn't know how to program but I was showing him how to hit the key and do a compilation. And I, he was having problems. What he was trying to do was remove my CompuServe ID number and my copyright notice out of my program, and he was asking me, he asked me on the telephone to -- well, this time for the second time he started suggesting that he owned my program. Q. Okay. A. He even asked me who owned it. It's the first time I had heard him make -- this is the second time I heard him make reference, and I -- Q. And what did you say about ownership? A. I told him, as I'm telling you now, that the author owns something, unless, unless he signs it over, and I would never sign him over my program. Q. Okay. Now this, have you heard the tape which is in evidence, I think it's Plaintiff's 16. Is it 16? MR. KITCHEN: Yes. BY MR. OSTROWSKI: Q. There's two tapes in evidence, but, have you heard that conversation? A. Yes. Q. Is that conversation that actually occurred? A. Yes. Q. Okay. Did you hear a, some sort of a glitch on the tape? A. Yes, I did. Q. Okay. You have any idea if any conversation is missing at the point where there's a glitch? A. At that point Richard, Richard had mentioned to me that I would get my commission when things were going faster and better. Q. Okay. Now, is that, are you saying that that's what the tape actually says? A. No. I remember what Richard was saying because he kept, he, he was reminding me what he had been saying, that I'm getting a little bit of money now, he's building up his account, and, and, and he had been promising me, you know, for about two months that he's building up the accounts, and when sales are up, I'm going to get all my money. Q. Well, let me ask you this. Do you feel, do you believe that there's conversation that occurred that is not audible on the tape? A. Yes. Q. And is it of the substance that you just testified about? A. Yes, it is. Q. Okay. Now, what happened after this taped phone call, as far as you and Mr. Graham arguing about the copyright? A. Richard had called me to -- and again, I thought he was -- Q. When? I'm just asking you what happened. I don't want you to comment on it or explain it? A. What happened afterwards? Q. Yes. After that taped phone call? A. I called him a few days later because he had promised me, just before the telephone call, he had promised me that he was mailing out the, the new issue of the disk, and I would get my commission. I called him and asked him about my commission. Q. And what did he say? A. He, he made some, he made some smart remark and hung up the telephone. Q. Okay. And are we still in September? A. Yes. Q. Late September? A. Yes, late September. Q. What was the next contact or conversation that you had with Mr. Graham after that, or was that it? A. That was basically it. I guess a few weeks later I got a Subpoena. Q. Okay. And then you went to Court? A. Yes. Q. What was your -- okay. After the, after the last conversation with Mr. Graham where he hung up on you, did you try to market your file retrieval program? A. Yes. Q. And to whom? A. Bob Depew. Q. And what, do you -- what was the compensation, or what was the contract between you and Mr. Depew, if you had one? A. That he would pay me a thousand dollars for every version of his disk that he produced with my CD ROM disk on, plus a dollar for every disk that was produced. Q. Did you receive any pay from him? A. No. Q. Did he actually use your file retrieval on his disk? A. No, he didn't. Q. Okay. Do you know why he didn't, from what he told -- did he say why he didn't? MR. KITCHEN: I'll object to it, calls for hearsay, Your Honor. MR. OSTROWSKI: Okay. I -- THE WITNESS: Richard told me why he didn't. THE COURT: Wait a minute. Don't answer it. MR. OSTROWSKI: I'll withdraw that. I -- BY MR. OSTROWSKI: Q. Okay. Did you try to market your file retrieval to anyone other than Mr. Depew? A. Yes. Q. Who? A. Nick Constantino. Q. And did you reach an agreement with him? A. Yes, I did. Q. And how much were you to be compensated? A. I was, I was to be compensated -- the agreement that I had with Constantino was that I was going to produce a CD ROM disk and pay him a commission. He, he did give me the money a few days in -- THE COURT: You were going to pay him a commission? THE WITNESS: Right. Constantino gave me $4,500 to produce a CD ROM disk. BY MR. OSTROWSKI: Q. And what happened with the -- and you were going to own the disk? A. Yes. Q. Was the disk going to have your file retrieval on it? A. Yes. Q. And what, what happened to that plan? A. The day that I was going to send it off, and there was promotions, you know, on my, on my end, on my BBS and on some other public BBS's, that the Apollo 3 library was going to be produced, I got a Subpoena. Q. And what happened then? A. I got an injunction. Q. Okay. And what about the injunction interfered with the Constantino-James enterprise? THE COURT: James, who's James? MR. OSTROWSKI: Larry James. THE COURT: Oh. MR. OSTROWSKI: They had some sort of a partnership or arrangement. THE COURT: I see. BY MR. OSTROWSKI: Q. Why did the injunction affect what you were doing with Mr. Constantino? A. Because I, I was, I was ordered not to use my program, and my, Constantino and all the other people that was close to me, would feel, they shied away. Q. Now, is he a lawyer? A. Yes, he is. Q. Okay. Did you have any -- were you planning to market your file retrieval to anyone else prior to the injunction? A. Yes. Q. Okay. Let me ask you this first. Did you actually contact anyone, other than Depew and Constantino, to market your program prior to the injunction? A. Yes, I did. Q. Okay. Who? A. Ralph Marquardt. Q. Okay. And did you strike any deal with him? A. Yes. Q. Which was what? A. A thousand dollars per version of the disk and a dollar per disk that would be manufactured. Q. And what happened to that deal? A. He shied away. Q. And did you actually contact anyone else about -- THE COURT: What did he say, he shied away? What do you mean? THE WITNESS: He, he -- no one wanted to proceed. THE COURT: Would you have proceeded, if he had been willing? THE WITNESS: Your Honor, at that particular time I was ordered not to use my program. THE COURT: This is why I don't understand where you're saying, he shied away, or somebody shied away. You were told you couldn't -- THE WITNESS: If -- THE COURT: You were told you couldn't sell it. THE WITNESS: Right, Your Honor, and everybody left, everybody left. THE COURT: Didn't matter if they left or not. You couldn't sell it, right? THE WITNESS: That's right. THE COURT: Even if they all stood around with their hands full of money. THE WITNESS: Your Honor -- THE COURT: Isn't that right? THE WITNESS: Yes, Your Honor. THE COURT: That's what I thought. BY MR. OSTROWSKI: Q. Okay. Now, had you, had you been in contact with these people, Constantino, Marquardt and Depew, prior to the injunction? A. Yes. Q. Okay. A. James -- Q. And then the injunction came along? A. Yes. Q. And then those relationships ended. Did you actually contact anyone else prior to the injunction about marketing your file retrieval? A. I, I had posted some messages on CompuServe, and I did have a lot, have some responses. Most, a lot of places that produced CD ROM's were interested. Q. How many responses did you get? A. About three or -- THE COURT: Responses, this is when, prior to or afterwards? THE WITNESS: Prior to. THE COURT: All right. THE WITNESS: About three or four. BY MR. OSTROWSKI: Q. Can you recall who the -- A. No. I didn't follow up on them. I, I didn't follow up upon them. I didn't know that this was going to take so long. Q. Were -- THE COURT: And no one else did. BY MR. OSTROWSKI: Q. Were, were they companies, or individuals? A. They were companies. Q. Okay. Did anybody else actually contact you prior to the injunction or -- I'm sorry, have contact with you prior -- A. Yes. Q. Okay. Who? A. Greg Armenia. Q. Okay. I'll get to Greg in a second. Anyone else besides him actually contacted you, or you contacted? Same thing. A. Not that I recall at this particular time. Q. Now, with -- had, had the injunction not been imposed, and you -- well, with respect to the three or four people who contacted you and then you didn't follow up because of the injunction, what arrangement would you have proposed with them financially? MR. KITCHEN: I will -- THE COURT: He may answer. THE WITNESS: I had an absolute arrangement with Nick Constantino. I, I was going to -- THE COURT: Then that's not responsive to the question, is it? THE WITNESS: You said what, what money -- THE COURT: What would you do? MR. OSTROWSKI: No. I think we've already established that you were going to own that disk. THE COURT: You had to deal with Constantino, so that's outside of the question. THE WITNESS: Well, all the rest of them was a thousand dollars plus a dollar a disk. That was a standard price. BY MR. OSTROWSKI: Q. Now, the deal with Constantino was that you would own the disk? A. Yes, it was. Q. You would owe him, what would you owe him in return for his loan? A. 30% commission. Q. 30% of the profits, or -- A. After all the expenses, yes. Q. Net profits? A. 30% of the, of the wholesale distribution value, 30%. THE COURT: Of the gross receipts? THE WITNESS: No, not gross. Wholesale. THE COURT: Well, wholesale could be gross. If you're a wholesaler, what you get in return are your gross receipts. THE WITNESS: Plus, plus he would, he was going to distribute and sell them himself, and he also had already contacted a national distributor. MR. OSTROWSKI: Well, we can't testify about what he was going to do. THE WITNESS: He, what he had done. MR. OSTROWSKI: Did you -- MR. KITCHEN: Well, I'll object to that and move that it be stricken, Your Honor. THE COURT: Yeah. MR. OSTROWSKI: Okay. THE COURT: What is the normalcy? Now, if someone is retailing, they are selling at a fairly high price, so the dollar per disk is almost a nothing, right? If you're selling for $169 a disk, to pay someone a buck is not much. THE WITNESS: That's right. That's correct, Your Honor. THE COURT: All right. Now, if someone's selling it wholesale and the price is very depressed and you're down around $3.00, $4.00, $5.00 or $6.00 a disk, aren't you? Selling wholesale you're selling in bulk. THE WITNESS: He had a national line of people. THE COURT: And he wholesales through that. THE WITNESS: Yes. And -- THE COURT: He sells them out to John Jones who retails them. THE WITNESS: Our wholesale value was $50 a disk. THE COURT: $50 a disk. All right. MR. OSTROWSKI: Did you have -- THE COURT: Well, was the arrangement then that whether he was selling wholesale or whether he was selling retail, you were to get a buck a disk? THE WITNESS: I, I was going to get about $35 for every wholesale disk that was sold, $35. THE COURT: With Mr. Graham? THE WITNESS: With Mr. Graham I was getting a dollar a disk. THE COURT: Yeah. Well, what's this $35? You're back to Constantino. MR. OSTROWSKI: Constantino. THE COURT: I'm asking about sort of a standard thing. Constantino is a different ball game than this thousand dollars for writing and a buck a disk. THE WITNESS: That would give me $2,000,000 for now. THE COURT: What, what would? THE WITNESS: The arrangements at that particular time, right now we -- THE COURT: With whom? THE WITNESS: Constantino. THE COURT: Well, put that aside. That's an extra program. Now, you say it's quite normal to have $1,000 for writing and then a dollar a disk. THE WITNESS: Yes, and for a reason. THE COURT: That's, well, it's a reason. That's the practice. THE WITNESS: Yes. THE COURT: That's the MO. THE WITNESS: Yes, Your Honor. THE COURT: What's happening? MR. KITCHEN: Your Honor, I've got to insert here at least an objection about his competence to answer what is the standard in the industry. THE COURT: Well, that may be true. Nevertheless, he made that statement and I'm trying to find out. So if you write a program for somebody and you get a thousand dollars for writing it and you're going to get a dollar per disk, you're going to get that whether he sells it at wholesale or whether he sells it at retail. THE WITNESS: Yes, Your Honor. THE COURT: Is that the standard? THE WITNESS: Yes, Your Honor. THE COURT: All right. Thank you. BY MR. OSTROWSKI: Q. How, do you know, how many disks were you planning to produce in conjunction with Mr. Constantino? A. His mailing list had, I think about 2,000,000, his mailing list, and -- MR. KITCHEN: Your Honor, I'll object again. THE COURT: Yeah. MR. KITCHEN: This is hearsay. THE COURT: Sustained. BY MR. OSTROWSKI: Q. How many disks did you plan to cut with Mr. Constantino? THE COURT: Would he, Mr. James, plan to cut? MR. OSTROWSKI: Yes, Your Honor. THE WITNESS: Initially -- THE COURT: Were you going to do the cutting? THE WITNESS: He gave me the money to do everything. THE COURT: You got $4,500. You were to write and have the disk, a master -- THE WITNESS: I had everything ready to ship. THE COURT: Please. THE WITNESS: Yes, Your Honor. THE COURT: You were -- he gave you $4,500. You were to write the program and then have a master disk manufactured and a quantity of disks, or what? How far were you to go for the $4,500? THE WITNESS: The, the first shipment was going to pay for a thousand disks for the first shipment, a thousand. THE COURT: Pay what? THE WITNESS: The CD ROM mastering company was going to ship me 1,000 disks. THE COURT: Was that for your $4,500, you were going to get -- you were going to write the program. THE WITNESS: The program was written. THE COURT: You were going to have the master produced, and you were going to get a thousand disks. THE WITNESS: Yes, Your Honor. Everything was ready to ship, put in the mail and ship. THE COURT: All right. And this, this is all yours for $4,500, or is this his? THE WITNESS: It's, it was mine, Your Honor. THE COURT: What's he get for the $4,500? THE WITNESS: We had calculated that he -- THE COURT: What did he, what would he get for the $4,500, not the particular money, but what kind, where would he get his money? THE WITNESS: A commission off my disks that were being -- THE COURT: You would pay him a commission? THE WITNESS: Yes, Your Honor. THE WITNESS: I see. All right. BY MR. OSTROWSKI: Q. Okay. And you were going to cut 1,000 initially? A. Yes. Q. Okay. Did you have any plans at that time to issue further disks, to make further disks? THE COURT: You mean to make further programs? MR. OSTROWSKI: To -- THE COURT: Or the same -- more disks -- MR. OSTROWSKI: More copies of the same version. THE WITNESS: This, the more copies -- THE COURT: Well, if you sold a thousand you would order more, wouldn't you? THE WITNESS: 10,000. Yes, Your Honor. THE COURT: Sure. BY MR. OSTROWSKI: Q. Did you have any figure in mind as part of a business plan? THE COURT: Oh, all kinds of things. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Now, did you -- how much were you going to sell these disks for retail? A. $199. Q. And how much were you going to sell them for wholesale? A. $50. Q. And Mr. Constantino would get 30% of whatever it was sold for? A. Yes. And the going rate -- THE COURT: But you were going to do the selling and he was not. THE WITNESS: No, Your Honor. He was going to assist in distribution and selling. He had the mailing list. I was going to be -- actually I was going to be selling them to him at $50 a disk. THE COURT: $50 or $60? THE WITNESS: At, at around $50 a disk, but not less than $50. We agreed on that. BY MR. OSTROWSKI: Q. Now, as for people that you did not contact prior to the injunction but had planned to contact to market your file retrieval, are there any such people you were going to contact but you didn't because of the injunction? A. Yes. Q. Who? A. Every, every distributor in the market. Q. And how -- A. And every manufacturer in the market. Q. How many were there at that time? A. At that particular time there were around five. Q. And when you say at that time -- A. Every one that popped up would have popped up to me. Q. And was it your plan to market your file retrieval to new companies that just were created? A. That was the whole plan. That was how I was going to get my money. Not off Richard, $1.00 a disk. Q. Now, after the injunction, did you market any file retrievals? A. No, not for quite a while, but I did write a different one. Q. Okay. For who? A. Greg Armenia. MR. OSTROWSKI: Your Honor, I'm almost done, but if I, if I had the lunch hour I could reorganize and ask a few more. THE COURT: I know if you had the lunch hour you wouldn't be done for another couple hours, whereas if we had you finished before lunch we might get you to that point. MR. OSTROWSKI: Okay. If I could just have a couple, a minute or two to review my notes. THE COURT: You may. MR. OSTROWSKI: I may be completed. (Off the record) BY MR. OSTROWSKI: Q. Now, was it also -- what was your intention, Mr. James, with respect to making sure your copyright notice was on your file retrieval program? MR. KITCHEN: Excuse me, Your Honor. Is this overall or is this a particular one? THE COURT: On this program. BY MR. OSTROWSKI: Q. All of your file retrievals. Did you feel it was important to have a copyright notice on them? A. Yes. Q. And why? Why did you want your copyright? Why did you refuse to take your copyright notice off when Mr. Graham asked you to? A. He didn't ask me to take my copyright notice off. Q. Okay. Well, he took it off and I take it you didn't like that. Why did you want your copyright notice on your program? THE COURT: Well, he asked you to take what off? He asked you to take -- THE WITNESS: My CompuServe ID number. THE COURT: Yeah. BY MR. OSTROWSKI: Q. Why do you want your copyright notice on your file retrieval programs? A. Because I reserve the rights, and I would never give them up. Q. Any other reason why you'd want your copyright notice on your file retrieval programs, other than the fact that you are the owner? Do you believe that people would see your copyright notice? A. I wanted my name to be promoted. Q. Why? A. Because, because I -- my intention was to become the Peter Norton in the CD ROM industry. I mean, everybody has a problem and needs something for their hard drive. They go to Peter Norton to do everything. And this was mentioned to -- this was discussed between Richard and myself, that my name, Larry James, would be synonomous with Peter Norton for the CD ROM drive, and everybody that came out with a CD ROM disk, they would by default go to the top and they would come to me. Q. Kind of like most people buy Word Perfect software? A. Yes. Q. And is everybody coming to you? A. No. MR. OSTROWSKI: No further questions. THE COURT: All right. 12:36. What time you going to come back? MR. KITCHEN: Your Honor, during the break I got a note to call my office. We had previously -- I have a matrimonial that was scheduled this morning that had been adjourned because we were talking about settlement. Apparently the Judge, Judge Joslin, called my office and said he wanted -- THE COURT: He just sends people out in the hall and says, settle it, doesn't he? MR. KITCHEN: Well -- THE COURT: That's what I hear. I don't know. MR. KITCHEN: As do most of those Judges who handle matrimonials. THE COURT: Well, I understand he has a particular MO on it. MR. KITCHEN: Well, okay. Of course, don't confuse him with Judge Francis' technique of a couple years ago. THE COURT: Oh, I was thinking of Francis. MR. KITCHEN: That's right. THE COURT: I was thinking of Francis. I'm sorry. Yes. MR. KITCHEN: He just, stay out, stay out in the hall for the rest of the week. THE COURT: Yeah. That's what I heard. I was thinking of Francis. MR. KITCHEN: Even he abandoned that. Thank heaven. But in any event, Your Honor, Judge -- THE COURT: This is not on the record. Take it off. (Recess taken) CROSS EXAMINATION BY MR. KITCHEN: Q. Mr. James, after the injunction was in place, you did not make any further attempts to sell the program, correct? A. That's correct. Q. Okay. But you did sell a different program or marketed a different program to Greg Armenia, correct? A. That's correct. Q. And what was the name of that program? A. Pier One. Q. Okay. Did you write that from scratch? A. I don't, I don't -- it's not possible for me to write it from scratch. THE COURT: Well, I mean, aside from all these, quote libraries, unquote, you had? THE WITNESS: I used different libraries, Your Honor. BY MR. KITCHEN: Q. Well, I missed the answer to the previous question I asked just before the Judge asked, and that was, my question was, did you write it from scratch, and what was your answer? A. My answer is, I don't know if it's possible to do something from scratch when you're not a scratch person. Q. Well, when you say you're not a scratch person -- THE COURT: What's a scratch person? BY MR. KITCHEN: Q. -- what do you mean by that? A. Your Honor, I have a certain amount of expertise in -- THE COURT: No, no. You said, you used the term, scratch person. I'm wondering what a scratch person is. THE WITNESS: Someone who doesn't -- THE COURT: You're not an Einstein or an Edison. Not Einstein, I should say, rather than Edison. He was a cut and try -- THE WITNESS: I have some resources and I did call upon my resources. BY MR. KITCHEN: Q. Well, let me ask you then, when I asked the question, did you write it from scratch, what does that term mean to you, to write a program from scratch? What would a person be doing if they did that? Well, let me withdraw that question. Let me ask a different question. Have you ever written a program from scratch? A. No. Q. Okay. What, when you write a program then, do I take that to mean that when you write a program you, you rely on other people's programs? A. No. Q. Okay. Well then, how do you write a program that, that we can't say was done from scratch? A. The same way a person would write a speech. You have a certain amount of phrases and things you just, you just go from your -- THE COURT: All right. within the phrase from scratch as being things that are in your head and things that are in your own experience. That would be included with from scratch, I suppose. MR. KITCHEN: I would think, Your Honor, yes. THE COURT: Yes. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. So with that, with that clarification, have you written any programs from scratch? A. Everything I write is from scratch. Q. All right. And so, the program that you wrote for the Pier One disk, that was from scratch, in that sense? A. Yes. It was from scratch in that sense. Q. All right. So then the library, and you said that you had a library of modules from back in 1990? A. No. I said, I said from back -- Q. Early '91 anyway? A. No. From, I think I said about eight years ago. Q. Eight years ago? A. Yes. Q. All right. You had a library of modules in the C programming language? A. Yes. Q. Okay. Because you had learned C eight years ago? A. Yes. Q. And did you write any C programs eight years ago? A. Yes. Q. What did you write eight years ago? A. I wrote a program that got me kind of popular on CompuServe for, a communications program. Q. And what was, what's the name of that program? A. Access. Q. Access? A. Yes. Yes. A-C-C-E-S-S. Q. A-C-E-S-S? A. Yes. Q. Okay. And is that program still -- and you uploaded that to CompuServe? A. Yes, I did. Q. And you uploaded it with a copyright notice with your name on it? A. Yes, I did. Q. Okay. And that program, is it still available on CompuServe? A. I'm not sure. You know, programs -- Q. Well, the answer is, you're not sure. Do you -- A. It's on my -- Q. Did you publish that any other way, other than uploading it to CompuServe? A. It was available for people to download from my bulletin board. Q. So the answer is yes, you have published it by making it available on your bulletin board? A. Yes. Q. And it's on your bulletin board right now? A. Nothing's on my bulletin board older than a few years. As I was mentioning -- Q. So the answer is no, it's not on your bulletin board? A. That is correct. Q. Because it's more than a couple years old? A. Wait, wait. Come to think about it, I believe it is on my board. Q. So the answer is yes? A. Yes. Q. Okay. It is on your bulletin board? A. Yes. Q. And did you publish it any other way? A. I shared it with the computer club. THE COURT: Excuse me? THE WITNESS: I shared the program with, with the computer club. BY MR. KITCHEN: Q. And, and any other way that it was published? A. No. Q. All right. This particular program, which you said was named Access, that was written in C? A. Yes. Q. And how long had you known the C language before you wrote that program? A. It's kind of hard to say when I first started knowing it. Q. Okay. So you're not sure? A. But I would say maybe around, when I first got my computer, about three or four months, later on, I was writing in a lot of different languages. I was writing in Basic, Assembly and C. THE COURT: Well, when did you come to be -- THE WITNESS: Probably about a year previous. THE COURT: -- relatively -- excuse me -- relatively competent in C? THE WITNESS: Your Honor, I feel comfortable in C now. I felt comfortable then. But now I know so much more than I knew then that it seemed like I didn't know it then. And I feel like, this time next year, I feel like I didn't know it at this particular time. THE COURT: All right. So then you, at some point you were competent in C. Now you're plus plus competent in C, and soon you'll be plus plus plus competent in C. THE WITNESS: Yes. THE COURT: But all the way you've been competent in C. Not all knowing, but competent. THE WITNESS: That's a very good explanation. BY MR. KITCHEN: Q. And is Access a shareware program? A. It's not given to shareware, but -- Q. So the answer is no? Is it or is it not a shareware program? A. What's your interpretation -- Q. Yes or no? A. What's your interpretation of shareware program? Q. Well, maybe I should ask you. What is a shareware program? What is your understanding of what a shareware program is? A. I would say it's a program that people would test out and maybe, you know, give to the author a certain fee to use if they want to, but they can share it with -- THE COURT: I see. They would have to pay for it then. THE WITNESS: Well, there's no required remuneration for using it. There's -- THE COURT: They could make a donation for using it. THE WITNESS: Something to that effect. THE COURT: All right. BY MR. KITCHEN: Q. Are there a lot of shareware programs out? A. There are. Q. And do most shareware programs say just that? You don't really have to send me anything, but if you do I'd appreciate it, kind of thing? A. Some programs say that. Q. Okay. Are they still referred to as shareware? A. The programs of shareware, I guess they are referred to as shareware. Q. Well, you -- A. You asked me, is a shareware program referred to as shareware. Q. Please, please. THE COURT: Wait a minute. Are you still answering his question? THE WITNESS: I was asking him to be clear. MR. KITCHEN: Okay. All right. THE COURT: All right. If you don't understand a question, just tell him you don't understand it. THE WITNESS: Yes, Your Honor. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Are you acquainted with the term freeware? A. I am. Q. What does freeware mean? A. User. Q. Pardon me? A. A user, with no remuneration in return. THE COURT: Even no donation? THE WITNESS: The author is not require any, soliciting donations. THE COURT: Well, it's the same with shareware. You're not requiring it, but you solicit donations. THE WITNESS: Shareware, they are asking for, soliciting donations. Freeware, they're not soliciting it. THE COURT: I see. MR. KITCHEN: All right. THE COURT: They don't even, they don't get an address to which they might send something? THE WITNESS: I've saw some that make a mention that, I don't expect for you to send anything, this and that. If you -- THE COURT: All donations refused? THE WITNESS: What some of them would appreciate is responses from people that are using, to help them in further development. THE COURT: I see. Comments. Sort of a cross commentary. Talking about it and trying to develop better programs, and I see. All right. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q. But freeware doesn't even ask for any money, right? A. To my knowledge, no. Q. What's a public domain program? Are you acquainted with that term? A. Yes, I am. Q. Okay. What does that mean? A. A public domain is programs that are in the public. A lot of people make contributions, you know, to certain elements and development. But it's public domain, where no one can -- the author reserves the rights and owns it, but no one is actually asking any, any money. It's just, it's very close to -- THE COURT: Does the owner, does the owner reserve the right to keep people from using it? THE WITNESS: Not necessarily. Since he retains the copyright -- THE COURT: Well, copyright usually embodies some restriction upon other people using it without permission. THE WITNESS: Well, with his copyright no one can just take his work and say they did it and then start trying to sell it or -- THE COURT: They couldn't claim it as their own that they had written. THE WITNESS: Right. If I had a public domain program and suddenly I said, oh, this looks good, and I know that it's in the public domain and everybody can use it, but I might decide that I'm going to make money off it, and the author, you know, since he reserves the copyright, he would intervene because it's public domain and it's not just up to someone to decide that, I'm going to make a profit off this public domain program. BY MR. KITCHEN: Q. Is there any difference between public domain software and freeware? A. Well, public domain is a more official element of sharing programs for the public. Freeware is something, a lot of public domain programs have a lot of functionality and features, they're more highly developed, per se, than freeware. Freeware is something that a person doesn't have any real, extremely efficient channels, they are just kind of theirs. Someone put together a few modules of this and that, something that might work, and it's to the public. And everybody's free to do what they want, want to do it. But public domain is a more controlled channel of specific programs. They are catalogued better. Q. And your particular program Access, which of those three categories would that fall into? A. I would say public domain. Q. Okay. Was there any request on the program itself that, or documentation accompanying it, that requested donations? A. No. There was documentation that requested comments for further development. Q. Okay. But never any that requested any money? A. No. Q. Okay. Any other programs that you've written in C? A. Yes. I wrote a menu program for all my customers to share with my computers and make them easy to use. Q. And is that in use now? A. Yes, it is. Q. Is that program marketed at all? A. Yes, it is. Q. How is it marketed? A. It's marketed by, by word of mouth, and by me. Q. And when was that program first published? A. I would say six or seven years -- closer by, the same time, you're saying -- which version are you referring to? Four or five years ago I was more serious about it than, than I was -- Q. How many versions of that program are there? A. Probably a version every few weeks. Q. Is there a name for that program? A. Yes. Q. What? A. A menu. Q. A menu? A. Yes. Q. Is that what's running as a shell on your -- A. Yes, it is. Q. -- on this computer? A. It is. Q. Okay. THE COURT: Now, when you say that you market it by word of mouth, you don't really mean that, but you mean by things that go out the bulletin board and so forth. You're not standing in the public square promoting it or telephoning people directly, are you? THE WITNESS: That's correct, Your Honor. Friends and customers, you know, when I work on their computers, they have problems making DOS commands and doing things, so I just put a menu shell on their computer to facilitate things. THE COURT: People would read that. THE WITNESS: So that they can easily use their computer. THE COURT: And you include that in, quote, word of mouth, unquote. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q. Is that distributed as a shareware program? A. No, it's not. It's absolutely not. Q. Okay. And so it's not, it's not available on your bulletin board as a program to be downloaded then? A. That's incorrect what you said. It is available. Q. It is available? A. Yes, it is. Q. And when somebody does download it from your bulletin board, what are their obligations to you? A. What you mean? Q. Well, in other words, can they download it and use it all they want to? A. Yes, yes, they can. Q. And is there documentation accompanying it? A. Yes, there is. Q. And is there a request for a donation or payment if the person wants to be either a registered user or wants to use it permanently? A. There's a mention but it's not the same mention for -- you asked a question, you want to understand the procedure, you say what do they do for me or what's the policy with my menu program? Q. No. I asked you what the documentation says, whether it requested somebody send in money? A. The documentation makes a mention that for a fee the users could get support from me. Q. Okay. THE COURT: For a fee what? THE WITNESS: A user can get some further support, and they can be registered for BY MR. KITCHEN: Q. And how much is the fee? A. In the documentation I, I believe there may be a mention of $20, but the program, I really sell it for $45. Q. Well, so, in other words then, when somebody downloads a menu and they boot it up and they read the documentation and they send you $20, you send it back and tell them that that's not enough? A. No. Q. What do you do? A. If a person uses my menu program, first of all, you know, it's not crippled, it's everything they would need, but under a lot of circumstances a person is very impressed with the ease of using their computer and they really like it, and they'll call me for consulting, this and that. And during the process I will come and, and further organize their hard drive. I will sort out their files and -- THE COURT: Now, when you say, I would come, you mean you would physically go to where they are? THE WITNESS: Well, I would, I would set up an appointment. Sometime they might bring their computer to the flea market and sometime I would go to their place. In some circumstances it may be a lawyer or a doctor, and I -- in fact I even went to the Mercy Hospital to organize their files on the computer there, after they installed my A menu program. MR. KITCHEN: Well, yes. THE COURT: If we can only get you over to Erie County Medical Center, we'd be all set. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q. But the documentation says that a person sends in $20 and they are a registered user and they get a full powered copyright? A. The words is not exactly like that. Q. Well, what is it like? A. Actually, I probably should update, you know, some of the words in that document. I wasn't anticipating on -- it's an administration thing. If someone has a program and they call you, they might call you from anywhere in the world, and you spend an hour and 15 minutes, you know, making another phone call. You know, like, there should be some type of administrative concern and -- Q. Well, what does a person get for the $20 that the documentation says to send in? A. At the time when I mentioned $20, I guess that was, had about the same value that $45 have today. So I never took the time to rewrite or change the documentation, because most of my programs I hardly write documentation. I put it all inside the program, all the help, all the, everything they need is there. So I don't concentrate on documentation. Q. All right. So we're talking about a period -- A. It's obsolete. Q. So we're talking about a period that was back when $20 was worth what $45 is now? A. Right. That's why it's hard for me to reflect on that. Q. That would be eight years ago? THE COURT: Wait a minute. Wait a minute. MR. KITCHEN: Okay. THE COURT: Wait for the answer. BY MR. KITCHEN: Q. Yes or no? A. I beg your pardon? Q. I said, we're talking now about you having written this back when $20 was worth what about $45 is worth now, correct? A. I didn't say worth in the marketplace. I was more or less thinking about worth to me. Q. Okay. And this was what, six, seven, eight years ago, that you first published this thing and put the $20 in? A. The $20 probably was written maybe about, yeah, about a few years ago, about three or four years ago. Q. Three or four years ago? A. The $20 were mentioned. Q. Okay. Now, this -- how many modules were in your library that you developed eight years ago? A. Maybe, maybe 100, maybe 150. Q. 150 modules? A. Yes. Q. Okay. And you used all those modules in various programs? A. No. You know, sometimes I -- Q. The answer is no? A. Yes. Q. You made up modules, even though you didn't use them in programs, correct? A. Correct. Q. All right. And why did you make up the modules? A. To test algorithm. Q. Okay. And other than Access and A menu, what other C language programs have you developed? A. Clock. Q. Clock. What is Clock? A. It allows a person that has an XT to turn their computer on, and they don't, it doesn't -- what happens, XT doesn't have a built-in clock like an AT. Q. Just tell me what the program -- THE COURT: You saying C-L-O-C-K? MR. KITCHEN: Yes. THE COURT: Clock. THE WITNESS: Yes. BY MR. KITCHEN: Q. Just tell us what the program Clock does. THE COURT: Clocks. THE WITNESS: It assimilates a battery clock in a computer where it will retain the, a real close proximity of the correct time and date, even when your computer's turned off. BY MR. KITCHEN: Q. Okay. And was that program published? A. What do you mean? Q. Well, did you publish it, did you fix it -- I mean, when did you finish, when did you complete it? A. I still add modules to it, but -- Q. When did you first make it so that it worked? A. Probably about six years ago. Q. Okay. A. When I had an XT. Q. How many modules in Clock, do you know? A. Clock is a module itself. Q. Okay. And so it's one module, it's a one module program? A. It started off as a module, but I use it so frequent that I -- and I tested so many things off, and I just let it live as a separate entity. Q. Have you published it or put it out to others? A. It's published. It's -- Q. How? I mean, is it available on your BBS? A. Yes, it is. Q. Is it available any other way? A. When I configure -- Q. That's yes or no. Is it available any other way -- A. Yes. Q. -- other than on your BBS? A. It is. Q. How? How else do you make it available to people? A. By service call. Q. Okay. So you're not publishing it any other way than the BBS and just personally when you make a service call? A. Yes. Q. You are, or is that correct, what I said? A. That's correct, what you said. Q. Okay. All right. And on your BBS is it available as a shareware program? A. I wouldn't say that. You know -- Q. Well, the answer is no then. So you don't ask for any contribution or any solicitation. You don't solicit any financial input from anybody who downloads Clock? A. That's correct. Q. Okay. So the documentation -- is there documentation accompanying it? A. The documentation is built into the program. Q. Okay. So there's no separate doc file or text file? A. That's correct. Q. Okay. And by the way, when we're talking about shareware, freeware, those things that are available on BBS's, is it, is it common that many of the programs, not all of them, but many of them are accompanied with text files or doc files? A. It is. Q. Okay. And are some of them pretty elaborate? In other words, if you print them out they're almost like a book? I mean, they're long? A. That's correct. That's correct. Q. And is it safe to say the more, the bigger and more complex the program the longer the, the documentation file or text file that goes with it? A. That's correct. Q. And it's kind of a pretty simple program that sometimes you can get away with not even having the text or just inserting a few lines of text in the program to explain what it's doing? A. That's correct. Q. And you did that with Clock, right? A. Yeah. You don't make a big document. It's a very big marketing strategy. I've been approached many times from people that want to write documents for my programs and they say they'll market them if, just let them write the documents. Q. In other words, a little program with a lot of documentation is more marketable than a program without documentation, is that the idea? A. That's correct. The operating system that I run is sold for about $4,000. Q. Which operating system is that? A. Unix. But do you know you can download Unix free, but the reason they can sell it for so much is because of the documentation that they put together. Q. Now, did you put a copyright notice on Clock? A. No. Q. So that's really a public domain program, right? A. No. Q. No? A. According to the books that I read, a person own the copyright to what they write, even if they write it on a napkin. Q. Well, okay, but somebody downloading Clock doesn't even know that, that you have any copyright, right? MR. OSTROWSKI: Objection. That's a legal question. THE WITNESS: They should know. MR. OSTROWSKI: I object. He's asking the -- THE COURT: Well, if you have a copyright and you let people know it, then of course if they use it then they're liable in damages. If you own the thing and you don't let people know that you own it and they use it, you can stop them from using it, but you can't get damages. I think that's a fairer statement. MR. KITCHEN: Well, yes, but my question, Your Honor, wasn't legal. THE COURT: I know. I'm just trying to clear the air. MR. KITCHEN: Yeah. Okay. BY MR. KITCHEN: Q. Is, was there a copyright notice on Access? A. Yes. Q. And there's a copyright notice on A menu? A. Yes. Q. Now, by the way, any particular significance in the name A menu? A. Yes. Q. What's, how did you come up with that as a name? A. Something to do with Q. I see. A. Apollo. Q. Apollo. Okay. THE COURT: He asked about A menu and you've gone over to Apollo. MR. KITCHEN: When I said A menu, Your Honor, I was referring to the name of his program, which is called A menu. THE COURT: That's what I thought it was, A menu. MR. KITCHEN: Yeah. THE COURT: Not Apollo. But I know earlier Apollo was associated with you. MR. KITCHEN: I'm assuming what his answer means, that the A in A menu stands for Apollo. THE COURT: Oh, I see. I see. The A in A menu is Apollo. MR. KITCHEN: Was that correct? THE WITNESS: That's correct. MR. KITCHEN: All right. BY MR. KITCHEN: Q. There are other menu programs out, aren't there? A. Yes, there are. Q. Would you say there's quite a number of menu programs out? A. That's correct. Q. And some of them are shareware programs, right? A. That's correct. Q. Some of them are commercial programs, you have to actually buy them, right? A. Yes. Q. And there's actually a couple of freeware or public domain menu programs, correct? A. Correct. Q. Okay. And what makes a menu program a menu program? A. It gives a person the option, a menu option of taking various choices and executing them. Q. Okay. When you say various choices, choices of what? A. You can, on a menu you can select maybe a Word Perfect program -- I mean, word processing program or an accounting program, without just -- just going in and try to find, fiddle with things. There's something on the screen that will be a selection and in computer jargon that's referred to as a menu selection. So, yeah, it allows a user to make various selections, you know, real easy. Q. But the selections are among various what, applications programs? A. Yes. Many application programs have menus built right into them, menus to do various functions from within those various programs. Q. Okay. Like Word Perfect Office for one, isn't that a popular program that includes a menu? A. Yes. Yes, it is. Q. Okay. Are menu programs sometimes referred as shell programs? A. That's correct. Q. Okay. And do most of the menu programs have that in common? I mean, the purpose is to list the, the application programs available and give the user a choice of which one he wants to use? A. I would say yes. Q. Okay. And do -- how many menu programs have you seen? Well, let me ask, have you seen more than one? A. I can keep on naming, I can name them for a long time. Q. Okay. Well, rather than to have you go through a list, is it safe to say you've seen quite a few? A. Yes. Q. Okay. And do they all put up on, like one screen, a list of all the various applications you can go to? A. A lot of them do. Q. Okay. Is that something that they pretty much have in common among them? A. I would say that. Q. Okay. Now, once you're given this choice on these menu programs, what kind of choices do you get? Okay. You got a list of what applications are there, but what does the typical menu program then allow you to do? A. Execute the programs. Q. Okay. And when you say execute, you mean like start, or as we've occasionally used the term in the Court here, fire up? A. That's correct. Q. Okay. So in other words, if it's a game, it will start the game. If it's a word processor, it will open it up and allow you to do word processing. Or if it's a calculator, it will bring up the little calculator screen and you can do some calculating, is that all correct? A. Correct. Q. All right. Do these menu programs typically allow you to do other things? A. Yes. Q. Like what? A. Drop to DOS, format a disk. Some even allow you to access them by, over the telephone, over the modem. Q. Okay. All right. You mentioned a couple of functions. One was drop to DOS. Now we've had a term, heard a term throughout this trial which is called shelling out. Is that the same thing as what you said about drop to DOS? A. Yes. Q. Okay. Now, of course, any time we're in a program, whether it's a menu or something like that, we can quit that program or end that program, can't we? A. That's correct. Q. And when we do, we then drop to DOS then, too, right? A. Correct. Q. But when you talked about dropping to DOS or as the other term is shelling out, you meant something different, right? A. I -- Q. You meant something other than quitting, right? A. Yes. Q. Okay. What is the difference between shelling out and just plain quitting? You both, you end up in DOS both times, right? A. The difference is, one of them will allow easy access to get back into the program. Sometime a program has a certain amount of, a certain configuration. If you shell out, shell out of the program into DOS, then when you want to go back into the program you can type exit, and the program doesn't have to reload configuration. You just go right back into the configuration. If you drop out of DOS, if you drop out of the program into DOS and drop the program totally out of memory, when you want to go back into the program, the program has to reload. But that's, that's essentially the only difference. Q. Okay. So in other words, in the shelling out process you essentially kind of suspend the program and tuck it off in a corner somewhere and leave off, but you know where you've left off so that you can go back where you left off when you're through, right? A. That's correct. Q. If you quit and drop to DOS that way, you'd have to restart the program and have the opening screen and all that sort of thing, right? A. That's correct. Q. Okay. By the way, is the shelling out feature common in other kinds of programs, other than menus? A. It's common to most programs. Q. Okay. How does, how does a programmer make a program shell out? A. They run a copy of the command com, the same command com DOS prompt. It's called a command com. They just run a copy of that program which is actually essentially DOS. Q. Okay. So is that a pretty common routine that you'd find in a program? A. That's not a routine. That's a program itself, command.com. Q. Okay. A. That's a program. Q. That's a DOS program, right? A. Yes, it is. Q. Okay. So would you say there's pretty much only one way to shell out, and that's what programmers have to do, they have to run command.com, right? A. You can say that. Q. Okay. So if I were to look at the programming language that let's say was on A menu, and the programming language on some other program that, and I was looking at the part of the program on each of them where they told the program how to shell out to DOS, I would find pretty much the same language in that program? A. You could see similar language. Q. Okay. You wouldn't be surprised to see almost the exact same language, would you? A. I would be very surprised. Q. To see the exact same language? A. In some circumstances. Q. Well, you have to use the command, command.com, right? I mean, you don't, can't get around that, can you? A. Yes, you can. That's a common way to do it. Q. When you say a common way, you mean most of the time that's what a programmer would do? A. That's the most elementary way. And by the way, I don't do it in A menu. But that's the most elementary way to do it. You run a program just like running list, just like running Peace Fowler, you can run a program called command.com and then you get a DOS prompt. Q. I see. A. That's the way Jeff's program did, but I don't do that. I use something a little bit lower level than just running command.com. Q. What do you do? A. It's a kind of complex utility. I run a new environment. It doesn't have command.com. It does essentially -- Q. Excuse me. You run a new what? A. I run a new environment. Q. Environment. Okay. A. It's a function, it's a collection of functions. Very few people would do it, and even if they did do it, there's still a lot of elements that could be involved. I do it so that I can receive a certain, a special parameter list. I use a module that it would decide whether the user is going to give parameters so that when it does drop out of the program, which it does do, it drops out of the program, but it will receive parameters and do according to what's specified on the parameters. Not only for the user, what he puts in, but for me as the programmer, if I want to run a different program than command.com I don't run command.com. I'll just run a parameter list. Q. So your shell out module, and you do have a shell out module in A menu? A. Yes. Q. Right. Doesn't start up command.com? A. It's doing -- what it actually does, it spawns the parent, it becomes the child of the parent and it spawns it without creating another command.com. It takes parameters and according to parameters, the user can type command if he wants to have a command prompt. Or he can just, he can just not put parameters there. And it just, this channel of the module, of the program that's calling it, this channel just becomes, just starts to run on a lower level. There are a few different ways of doing it, and I, the reason I did it that way is because I use that same, which appears to be just a drop to DOS, I use that same procedure to run a different module, one of my other options in the programs I'm writing. And I wrote this utility, I wrote this module very generically because I use it over and over again. Q. So then you use that in A menu? A. Yes. Q. And you use that in the Night.EXE? A. Yes. Q. And do you use that in Pier One? A. Yes. Q. Okay. So that module then you used in a number of different programs? A. Yes. Q. Okay. And essentially they're the same in all those programs? A. Yes. Q. Okay. Are there other modules that you used in the Night.EXE program that you also used in the Pier One program? A. C print. Q. What is C print? A. C print is, is a library that allows you to print a line to the screen. It allows you to manipulate color modules. C print is a library that's shipped with Boylin C plus plus. Boylin C plus plus libraries is mixed in with my libraries, and you can use this library without royalties to Boylin C plus plus and you're encouraged by Boylin C plus plus and anyone else to develop libraries to -- other dependent link libraries to provide facility for these, these modules and functions. Q. Okay. If I could have Defendant's 1. MR. OSTROWSKI: On the corner of the table, underneath, bottom. BY MR. KITCHEN: Q. On Defendant's 1, are there any places where these libraries are listed? A. They're listed throughout the, throughout the program, right here, see right here, C print. THE COURT: What page? THE WITNESS: I -- MR. KITCHEN: He's referring to page 23 of Defendant's 1, Your Honor, about two-thirds of the way down, he has referenced, and it says C print F. Okay. BY MR. KITCHEN: Q. So that's a reference to one of your libraries? A. This is not my library, but this, but this is a -- you're asking me was there a library common. Q. I'm sorry. You're right. Before you said that C print was a library shipped with the -- A. With the Boylin C package. Q. So when you buy a package such as Boylin C plus plus, you get a certain number of libraries with that? A. Right. Right. And Boylin would sell me a package of libraries that I can use, that's correct. Q. On page 1 of Defendant's 1, the first kind of list of items has the word include in front, and has some language after it. What are these? A. This, this includes standard IO, that's a standard input- output library by Boylin C. That's a library. I'm including this library into this program to achieve a certain function. Q. Okay. Is there a particular reason that these various things with the word include in front of them are on the first page? A. There is, yes. Q. Yes. What? A. Actually one of the most -- Q. Well, let me ask you an easier question. I think. Do they have to be there? A. Do they have to be on the first page? Q. Yeah. A. No. Q. Okay. Do they have to be anywhere? A. If you're using them, of course. Q. Okay. In other words, you have to put in your source code. You have to list the libraries that you're including, right? A. Yes. Q. Okay. And if you are going to use that standard IO, or STDIO library, it has to be on the list, correct? A. That's correct. Q. So if you didn't list it on there, it wouldn't, it wouldn't work right? A. This here library, it's a page, a whole bunch of pages like this here, if you print it out. This library, when I run the compiler, it pulls out all those strings and add them to the text. And when I call the function, some of my DOS functions that I write, I manipulate the words and strings that are included in this library. And some of my DOS functions is manipulating some of the words and strings that are in this here DOS library here. Q. I see. So when you include libraries such as STDIO.H or a library such as DOS.H, those are, those are libraries which allow your program to address DOS and tell it to do various things, right? A. That's correct. Q. Okay. Now, you mentioned that you yourself have written the libraries, and I see under this listing with the words include in front of it, there is 10, 10 include followed by some language such as that STDIO.H and et cetera. Which one of those various libraries did you write? A. Those libraries on that block of text right there, I did not write those libraries. Q. Okay. So you don't have any libraries listed in include? A. That's correct. Q. Okay. Or listed in that block? A. Listed right there in that block. Q. Right. A. That's correct. Q. Well, if you didn't list them, did you list them, are they in a compact list somewhere else in this, in this document? A. No. Because I didn't want my product to be compactly stolen. It's not, it's not. But you can look through here and you can see it. See right there, this is one of my libraries. This say, go to view. THE COURT: Right there is where? MR. KITCHEN: Page what? THE WITNESS: Page 21. I scattered it out on purpose, and I, I didn't even put comments in it. I used this here, go to view. MR. KITCHEN: Okay. THE WITNESS: As a comment to let me know what I was doing with this library. BY MR. KITCHEN: Q. All right. Now, let me ask you this because you, you indicated that if, if you use one of the standard Boylin type libraries and put that in in the front after the word include, that you didn't have to actually write out the whole thing or print out the whole thing. It was picked up when you ran the compiler, right? A. That's correct. Q. Okay. Well, now, although your libraries are designated elsewhere in there, are they the same status. In other words, the library is actually external to this document here, and when you put in the direction later on, it goes and pulls it up from somewhere else? A. I'm not sure if I understand your question, but I think I do. I could, I could have just wrote down, include, the same way right there. Q. Okay. A. And not included the text in this document. But this document was not supposed to be distributed by anyone. This is my personal. Q. Okay. So is the answer to that though that, that another library, and you referred to one on page -- A. 23. Q. Well, I think page 21, you say, go to view, which is G-O- T-O-V-I-E-W. And you said that's a library? A. Yes. Q. Is that any different from a module? A. That is a module. Q. Okay. So the terms are interchangeable? A. Under some circumstances, yes. Q. Okay. And the contents of go to view, is that what follows the word go to view? A. Go to view. Yes, that's go to view. Q. Okay. And I mean, but the words following it, below it, indented, is that what's in go to view? A. Yes. And do you know, libraries call the other libraries? Q. Well, I understand -- A. Okay. Q. -- that might, that might occur, but, and is the contents of go to view, this module or library, everything that falls in between this first brace that's pointing to the left -- A. And the last one. Q. -- and the last one? A. That's correct. Q. Okay. And these are the libraries, what you say is libraries, that you've actually made up yourself? A. That's correct. Q. And you said that most of these were made up six, seven, eight years ago? A. Yes. I say, some of my libraries, that's correct. Q. Well, about what percentage of the libraries you used in, in this data base manager would fall into that category of ones that you wrote six, seven, eight years ago? A. It would be hard to say. I would say maybe, maybe 25 or 30%, maybe 50%, maybe between 25 and 50%. Q. Okay. But I think you testified on direct examination that most of the rest of them, actually up to about 90% of the program, had been written by the spring of 1991, right? A. That's correct. Q. Okay. So is it safe to say that you were working on your C modules or libraries more or less steadily? A. That's correct. Q. And you continued to work on them right up through June and July of 1991? A. And still do. Q. And you still do? A. That's correct. Q. Okay. What other modules are in Defendant's Exhibit 1 that you also would have used in the Pier One, on the Pier One disk? A. CPYSTR. Q. And, and that was a module you wrote yourself? A. No. Q. Where did that module come from? A. Boylin C package. Q. Oh, so that's one of the libraries? A. That's correct. Q. Okay. You didn't include that on Defendant's 1 though, did you? A. That's included in that package. Q. Okay. Let me show you Defendant's 1, you can show me where. A. I'm afraid it's STRCPY, not CPYSTR. Q. Okay. And what does STRCPY mean? A. String copy. Q. Okay. That's a command to the, in the programming language to simply copy a string, right? A. That is -- I wouldn't just say simply. Q. Okay. A. But it does that. Q. Okay. That's not really a, a module, is it? A. It is. Q. What, what's the contents of that module? I mean, what are the arguments in that module? A. The first argument would be the, the string that you want to have copied to, and the second arugment would be the string that you were passing to the first. Q. Okay. Well, in this case you've got, and we're on page 11, you've got STR copy, which is a string copy command? A. Yes. Q. (FDM,STR)? A. Yes. Q. Okay. So what does that particular line do? A. It copies the string from, that's stored in this STR variable into this FDM variable. Q. Okay. Well, now, you've called this a module. Is this a library, too, this STRCPY? A. Yes, it is. Q. It is a library? A. It is. Q. Okay. Well, now, how come it isn't included here on the front as one of the libraries that have to be included, you know, in this block of libraries? A. You want to know, to a certain degree that's a secret from Boylin. But it may not be a top secret, but some, some things they put out and allow the user to make modification to. These libraries here are all in source code that you can print. You can print out just like this here. The other one that, the string copy, is compiled, is compiled, and you can't see it like this, like this here. It's something that's supplied to allow you to use it, but you can't see the text. It's a compiled text that you can call on. Q. All right. Let me ask you something. How many modules are in, in this program? A. I've never counted. I just sit down and start typing. THE COURT: Do you know approximately? THE WITNESS: I think one of the professors referred to around 100, but I have no idea. For me, it might be 30, it might be 50, and I don't know. BY MR. KITCHEN: Q. You don't know. Okay. Are most of that, let's say, regardless of the number, whether it's 50 or 100, what percentage of these modules were actually written by you? A. Maybe, I wouldn't know, but I would take a modest estimate and say at least 50% -- Q. Okay. A. -- of the total. Q. Half the modules were written by you, and the other half came from where? A. From the Boylin library. Q. All right. So the thing, when we're talking about your original creation, we're really talking about the, at least what you created, we're talking about the half that you wrote yourself, right? A. Right. When a person builds a house, I guess he don't create all the nails that he used. You'll just say the part that he assembled, not that he laid the bricks and everything. He didn't make the bricks but he just laid them -- Q. You think -- A. -- in the right order. Q. Do you think building a house is a pretty good analogy to constructing a program? A. Yes. Each one of those bricks, I mean modules, may represent a brick. Q. Yes. A. And I, I took some of the modules from Boylin C package and set them in a certain way and inserted my concrete and filled in them, my own libraries. Q. Okay. But the concrete that you're using that's your own is really your modules, your libraries, that sort of thing, right? A. That's correct. Q. And that's about 50% of the total package there? A. That's correct. Q. Okay. And can you give me an example of -- did we already find one that was, that was your module that you, you did, was go to view one of those? A. INT DIR is one. Q. Okay. THE COURT: What is it? MR. KITCHEN: INT DIR. THE COURT: What is it? MR. KITCHEN: Is that I-N-T D-I-R? THE WITNESS: I-N-T D-I-R. BY MR. KITCHEN: Q. How about INT DOS? A. That's, yes, that's one. Q. How about INT COPY IT? A. That's one. Q. And did you say go to view was one of them? A. That's correct. Q. How about INT Screen 2? A. That's correct. MR. OSTROWSKI: Could I just ask, when he says one, what was the original question? I don't know what he's testifying to. MR. KITCHEN: Oh. Was this an example of a module that was actually written by Mr. James. MR. OSTROWSKI: Okay. Thanks. BY MR. KITCHEN: Q. And INT Execute, that would be one? A. That's correct. Q. How about INT Arrow down? A. That's correct. Q. And INT TAG? A. That's correct. Q. How about INT View DIR? A. That's correct. Q. That's V-I-E-W, D-I-R, by the way. And INT Status Line? A. Correct. Q. How about INT Free Memory? A. That is one, that's correct. Q. Okay. INT Get DIR? A. Correct. Q. Okay. You've made reference yourself to a module called INT New Config, right? A. Every one of those INT, the things that has the brackets, were written by me. Q. Oh, okay. Now, were any of these modules also used in the, in the Pier One? A. Yes. Q. Okay. About how many of them were used in the Pier One? You can give me a percentage or a fraction. Rough idea. A. Maybe 75%. Q. Okay. So there's a lot of similarity then in terms of the modules in comparing Defendant's 1 and Pier One? A. That's correct. I didn't just throw all my tools and buckets and paint out the window when I leave one customer and go to another one. Q. So if somebody else were a programmer and were going to come up with menuing programs and file retrieval programs and things like that and they didn't have the same tools that you have in your tool box, so to speak, they'd have to develop a lot of these modules on their own, right? A. That's correct. Q. How similar would their modules be to your modules? A. They wouldn't be similar at all. Q. Okay. Did it occur to you that when you were putting together 75% of your modules and making up this Pier One program that you were essentially violating the injunction? A. I had an order not to use that program and to rewrite another one, and I did. I didn't know that that was an order that I, that I had to just -- I don't know if I can excrete everything out of my head. I don't know if I can do that. Q. But rather than -- A. But I did spend a lot of time writing another program that essentially looks different on the screen than what Richard was using. Q. It does? Okay. Why don't you come on down to the computer and let's take a look at Pier One. MR. KITCHEN: Your Honor, in the computer I have Plaintiff's Exhibit 57, which was identified by the previous witness, Mr. Armenia, as his first Pier shareware disk. THE COURT: What number, 57? MR. KITCHEN: Plaintiff's 57. THE COURT: 57. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. And I'll ask Mr. James, are you acquainted with this disk? A. Yes, I am. Q. Okay. You've used it before? A. Yes, I did. Q. Okay. And you wrote the CD ROM -- excuse me, you wrote the, yeah, the CD ROM retrieval system that's on it? A. Yes, I did. Q. Okay. Would you fire it up, as we say. Let's kind of back out and go into this a step at a time. Okay. And let's have a, maybe we can clear the screen and kind of start from ground zero. What do you do to fire it up? A. Type in the name of the program. Q. Which in this case is? A. Pier One. Q. Okay. Well, why don't you go ahead and do that. By the way, is there any installation routine that you have to go through? A. Yes, there is. Q. Okay. You didn't just go through that, did you? A. No, I didn't. Q. Okay. Why? A. Because you installed the program ahead of time, you installed it, and the program is smart, it knows it's installed. Q. Wait a minute. Excuse me. You said I installed it? A. Yes, you did. Q. But -- A. You installed it during the break, while we were sitting right there. Q. Well, yes, but when you came up to take the stand you hit the reset button on this computer, didn't you? A. Right, and the program is so smart that you can turn the computer totally off and it's still going to use that installation and it will not crash like those other ones did. They put changes in and messed up. It's still installed. You installed it. Q. Okay. You've just turned the computer off and now you've turned it back on and it's going through a normal cold boot procedure, right? A. Yes. So you won't think I have tricks or whatever, I don't know. Q. Okay. Now, what, what just came up -- by the way, are we in a program right now? A. Yes, we are. Yes, we are. Q. Okay. And that program is A menu? A. Yes, it is. Q. All right. Well, let's drop to DOS and, and what, what's the directory -- or, excuse me, what is the drive that the CD ROM is in? A. It's in drive letter Z. Q. So we'll switch to Z. Now, let me stop you for a minute because you, you didn't type in Z, you typed the word set? A. Yes, I did. Q. Okay. Why did you type the word set instead of typing the word Z as you were requested? A. I don't have it, it's like typing DIR, like checking a directory of the hard drive, checking the directory of the memory, of the contents of the memory of the computer. Q. You do? A. Yes, I do, and I did. Q. Okay. Well, what does the set command do? A. It shows you what's in the computer's environment. Q. Okay. Let's press set and see what happens. Okay. Now we're in Z. What's -- well, go ahead and start up the program. Okay. And the opening screen has a box at the top that says, welcome to the magic of Pier One. Did you write that? A. Yes, I did. Q. Okay. There's a second line that says, environment not set to Pier One area. What does that mean? A. That means that the program is not set, the environment is not set. Q. Okay. Does that mean it's not in -- A. In memory. Q. It's not installed? A. That's, it suggests that it's not totally installed. Q. Okay. So you'd have to run the installation procedure normally, right? A. That's correct. Q. Now, doesn't the Night program have the same opening line, environment not set to Night area? A. It has some similarities between, yes, it does have this. Q. Well, as a matter of fact, not just similar, but except for the word Night versus the word Pier One, they're identical, correct? A. Yes. Q. Okay. THE COURT: What's that numerical sequence in the lower left that keeps progressing? THE WITNESS: I installed one of my modules. THE COURT: That's a Clock? THE WITNESS: Yes. And it's called, the module is called Clock. THE COURT: Almost right. THE WITNESS: C-L-O-C-K. BY MR. KITCHEN: Q. I take it that, that the Clock that produces that down in the corner has absolutely nothing to do with the programs we're discussing, right? A. That is incorrect. It does. That is the program running. Q. Okay. What program is that that's running? A. The Pier One. Q. Oh, well, in other words the Pier One turns that clock on and puts it in the corner? A. That module, C-L-O-C-K, is part of the Pier One program. That library, I put it in there. Q. Okay. So Clock is in, is a part of the Pier One program? A. Yes, it is. Q. Okay. And that's why we're seeing that down there? A. That's correct. Q. All right. What do you do next? Go ahead and hit enter. Okay. Now we have a green screen in the middle -- or, excuse me, a green box in the middle of the screen that says, installing new conguration, name of your default Pier One area, [C:\Pier One]: And then there's a space with the cursor blinking at it, correct? A. That's correct. Q. All right. Now, is this screen at all similar to the screen we see in the Night.EXE file? A. It's similar. Q. Okay. In fact, except for the name Pier One, isn't it almost exactly like what you have in your installation screen in the Night.EXE? A. It's very similar, yes. Q. All right. What happens if we hit enter now? We get a line now added which says, what is the name of your CD ROM drive [Z]: and again a space with the cursor blinking. Is that essentially the same as the inquiry that one gets on the installation screen of Night.EXE? A. That is the INT new config, so yes, that's the module, new config. It is the same, that module. Q. Oh, I see. And so the reason they're similiar is because you've used the same module, right? A. That's correct. Q. Okay. So, and in fact that would apply to this whole configuration series that you're going through right now, right? A. That's one module, and the name of that module, and the code is new config. Q. Now, the new config, that's the name of the module. This routine we've referred to as kind of installation, right? A. Yes. Q. But is installation really nothing more than writing a file called Pier One.CFG? A. I beg your pardon? Q. Well, in other words, what does install do, doesn't it write a file? A. I guess you can say that. Q. Well, I don't want to say it because I'm not the computer person, but let me ask you, is there such a file as Pier One.CFG? A. Yes, there is. Q. And what does that file consist of? A. It consists of information to point to areas, configuration information for the CD ROM disk or the media. Q. And in fact, the information that we're putting in right now is precisely that information that it contains, correct? A. Yes. Q. And that's so it knows where to look for certain files? A. Correct. Q. Okay. And certain directories and things like that, right? A. That's correct. Q. Okay. And as a matter of fact, Night.EXE which uses the config, excuse me, INT config, that does the same thing, only it comes up with a file called Night.CFG, correct? A. There is some similarities, yes. Q. Well, is there any differences? A. Yes, there's a lot of difference. There's some similarity. It's written by the same person. It's hard to have a person write two different things. I'm not Sybil. Q. Okay. But, but more than a similarity, in fact didn't you say that the INT.config module that is in the Night.EXE program is exactly the same as the, as the INT.config module that you put into this, correct? A. Yes. Q. Is that true? A. Yes. Some of my libraries are -- Q. Oh, not some of your libraries. Let's talk about just that module. A. Yes. That module is very basic, yes, it's very basic. Q. Okay. A. It's as basic as that standard IO by Boylin. Q. Well, now let me ask you something. Are you saying that it would have been possible for you to have written this program without using essentially the same INT.config module? A. I guess I probably could have thrown Boylin C out the window and tried to study another C language entirely. Q. Certainly but that's not -- A. But would you have wanted me to do that? Q. No, no, no. What I'm simply asking you is, what -- could you have come up with a new installation procedure using a new module, a different config module? A. I could have. Q. Okay. But you didn't? A. That's correct. Q. Would that have been a waste of time, to write a whole new one? A. I don't know what you mean, would it have been a waste of time. Q. Well, how long would it have taken to write a module to do that? A. It may not take a long time. Q. Well, let me ask you something else. What's the -- one of the purposes is to write a little file, this CFG file, this little Pier One.CFG file, right? A. Say that again. Q. One of the purposes of this, this module is to write this little config file, this little Pier One.CFG file, right? A. That's the whole purpose. Q. That's the whole purpose. And where is that file stored once it's written? A. On the hard drive. Q. Okay. It's not stored on the CD ROM, is it? A. That's correct. Q. Because we can't store things on the CD ROM, that's read only, right? A. That's correct. Q. Okay. So we have to put it over on the hard disk, right? A. That's correct. Q. Okay. And as a matter of fact when you start up Pier One, isn't one of the first functions to go and see if there is a Pier One.CFG file on the hard disk? A. That is incorrect. Q. It doesn't look for one? A. That is -- you're correct, it does not look for one. Q. Okay. A. There's one on there now. It's not looking for it. Q. Okay. Well, for the person who puts this thing into the machine for the first time, they don't have a Pier One.CFG file on their hard disk, do they? A. That is correct. Q. Okay. So this one writes it for them, right? A. That is correct. Q. Okay. What tells the program that the environment is not set to Pier One area? A. New config. Q. Okay. What does new config look for, what does it -- how does it get a return that it should put up this message? A. It checks the environments, the same way I just typed set. Q. Okay. And what does it look for in the environment? A. It looks for in this particular case Pier One. Q. Okay. Pier One directory, you mean? A. No. Q. Pier One what, it looks for anything with Pier One on it over on the hard drive? A. No. Q. What's it look for? A. Trade secret. Q. Excuse me? A. It looks for, remember I told you, I typed set. I myself typed set, and I looked into the memory of the computer. Q. All right. A. To see what's there. Q. Okay. A. It looks into the physical memory of the computer. Q. I understand. It runs set and it sees what's in it, right? A. Yes. Q. Okay. A. It doesn't really run set. It just checks out the memory locations of the computer. Q. All right. And what is it looking for? It's looking for a particular string, isn't it? A. Yes, it is. Q. What string is it looking for? A. Pier One. Q. Pier One. And is that string a directory name? A. No. Q. Okay. What's it, where is it finding it? What part of the memory is it going to? A. It's going into the, the lower 640K of memory. Q. Okay. It's not looking on the hard drive, it's looking in the memory? A. That is correct. Q. Okay. Now, the only way something would be in that memory when you boot up is because you would have the computer already programmed to put that, put Pier One into it, right? A. That is correct. Q. So that means that you would have to have something with Pier One on it, either in a config sys file or in the auto execute bat file, is that correct? A. Correct. Q. Okay. Which one would you normally have it in? A. The auto exe.batch file. Q. Okay. So, and that is, of course, one of the first files that the computer looks for when it starts up, right? A. That is correct. Q. And isn't it called an auto execute bat file because if it finds that the computer has such a program it goes ahead and runs it, right? A. That's correct. Q. And the auto execute bat file is essentially what we call a DOS batch file, correct? A. That is correct. Q. And a DOS batch file just consists of a bunch of DOS commands strung together in a list, and it just goes and executes them, right? A. You're right. Q. Okay. And what command is it looking for in the auto execute bat file that if it doesn't find it it comes up with that message, environment not set to Pier One? A. Set Pier One equals and a string. Q. Okay. Night.EXE does exactly the same thing, correct, only it's looking for the string in the auto execute bat file? A. That's something they have in common. Q. That's one of the things they -- A. That is. Q. Okay. Let's hit enter again on this. Okay. And I guess we can hit enter again, right. And the last two lines we've added by hitting enter and everything, one says DIR text file area [Z:\text]: and then it has an area. Now, is that similar to what Night does? A. It is. Q. In fact, it's got the same default, doesn't it? I mean, if you just hit enter, the text file area is going to be called /text, correct? A. That is correct. Q. Okay. And the next line says monitor type, color mono, and it defaults to C for color, correct? A. Correct. Q. That's exactly the same thing the Night does, right? A. That -- Q. That's correct? A. That is correct. Q. Okay. A. It's running a library. It's not going to -- the library is not just going to change. That's, I already told you it's running that particlar library. Q. All right. Let's hit enter. Okay. There's a verify line that's appeared at the bottom, right? I mean, there's a query at the bottom, right, or I should say a selection. THE COURT: Command. MR. KITCHEN: Command line, at the bottom. THE WITNESS: At the bottom, that was not -- THE COURT: No, the last one in the window. BY MR. KITCHEN: Q. Talking about the, talking about the last line on the, in the box? A. Okay. It's, yes, Q. All right. And same that's on the Night, right? A. Yeah. It looks different. It was written different, but it does -- Q. How is it different? How is this one different from Night, that command line, query line? A. It, it gives you an option to cancel. Q. Okay. So you gave it a, an additional option to cancel? A. Yes. Q. So that's an added feature? A. It's changed, yes. Q. Okay. Is there a particular reason you spelled that cancel, no, excuse me, my glasses failing me, it's perfectly fine, says cancel. Okay. Let's hit enter again. Okay. You hit enter and you hit something else, right? A. The first time I hit enter, but it -- Q. It doesn't do it, right? A. That's correct. Q. You need a Y, right? A. Right. Q. Okay. Update auto execute bat file. Now, if you answered yes to this question, it would put that little set command in the auto execute bat file, wouldn't it? A. That's correct. Q. And if you did that, then when we booted up again, we wouldn't have to go through this routine with the little green window, would we? A. That's correct. Q. Okay. And if we answer no, and we booted up later, we'd have to go through this thing again, right? A. That's correct. Q. Okay. Well, you can do either one, but -- A. I'll answer no. Q. Okay. Now, okay. Now we have -- I wonder if you could -- well, we've seen a couple of screens go by. Okay. And some of them have a blue area that starts small in the middle and gets bigger, is that correct? A. Yes. Q. Okay. Is that, is that what's called like an exploding screen? A. It is. Q. That's a common term for it? A. Yes. Q. Okay. Is that something that's original? A. It's original as far as you can see for this, this retrieval. I didn't put it on Richard's. Q. Okay. And so would you say you're probably about the first person to come up with an exploding screen? A. I hardly came up with any of these concepts. I mean, menu, it's a menu and it's been around, as you mentioned, you're familiar with tens and tens. It's, my arrangement is personal and individual but it's not new. Q. Okay. So exploding screens are not all that uncommon? A. Correct. Q. They exist on other computer programs, right? A. That's correct. Q. Okay. And where'd you get the, where'd you get the module, the routine? And let me withdraw that and ask, is there a particular module that does that exploding screen? A. That is. Q. Okay. And was that module in Night.EXE? A. I don't think -- no, it wasn't. Q. Okay. It wasn't even in there and disabled? I mean, it could have done it but it didn't? I mean, it wasn't one of those? I mean, it wasn't even in it? A. There were a lot of things that was, was made up and written down that were not being used for that customer. Q. That's why -- A. They were not represented to that customer, no way whatsoever. Q. That's why I asked the question, so, that's why I'm asking the question now. Was it in the Night.EXE but disabled, or was it simply not in there at all? A. I'm not sure. Q. Okay. And where did you get the module or routine for that? A. Out of my head. Q. All right. So you wrote the module from scratch that does the exploding screen? A. Yes, I did. Q. Okay. But the idea of an exploding screen is not unique? A. No. I myself have been doing it for about six or seven years, but as far as I can remember, I think I probably got it from looking on the computer. Q. Have you ever seen anybody's programming language? THE COURT: What's the noise? BY MR. KITCHEN: Q. Have you ever seen anybody's programming language that in fact does an exploding screen? A. No. I never study other people's programs, never. I just use the programming commands to just artistically represent the things that I think would be entertaining. Q. Well, you indicated that you're kind of self-taught on this C language program and that you learned most of it out of a book? A. Books, yes. Q. Books. More than one book? A. Yes, that's correct. Q. Okay. And don't these books give you little sample routines and modules and ideas of how to do things? A. They do. Q. Okay. And don't some of them include examples of how you would do various displays and screens? A. That's correct. Q. And how to rewrite screens and write them in a particular way? A. That's correct. Q. And have you ever seen a routine in a book that talked about how to make a screen explode? A. I've seen chapters, but you know something, I never take the time to read the code, and I figured I'd do it one time, some time, and compare the difference, but I never did. Q. So you didn't read it out of a book, you came up with it out of your head? A. That is correct. Q. And how long did it take to come up with the module to make that screen explode? A. It's hard to say. I mean, sometime I'll just be sitting down and I'll be writing something and my mind will get like swayed a little bit, and I might do something different. Q. Yes. A. For instance, maybe I want to just make a screen a certain size and I make the wrong size. Then I want to make it a different size, make it a different size. So I set a macro so if I hit a key it will change size according to hitting a key. And then I'll look, I'll say, oh, that looks neat, and then so I just write, include another library called grow screen, and if, sometime I just pop it in there, just for an effect. Q. Now, a person who's totally unacquainted with C programming language and stuff like this might, might speculate that a person would make an exploding screen by making one screen with a little blue box in it, another screen with the box a little bit bigger. Another screen with it's -- A. That's how I did it, yes. Q. Okay. So that's essentially what it is. It's a series of screens with an ever increasing blue box until the entire screen is filled? A. Correct. Q. Okay. Now, at one point in this process, just before we got to this screen we saw a white screen, and the top line on it said, to install, you know, press enter, something like that, or, you know, it had the word install in it and the word install was blinking. Do you recall that? A. Yes. Q. That's part of this routine, right? A. Correct. Q. Okay. Now, what, what was the purpose of that? A. If anything -- it's not going to make any noise for another 15 minutes. Q. Okay. A. If anything happened that, that for some reason the program fell out of -- something went wrong, there would be a prompt on the screen and the user would know what to type in. It's just for convenience to the user. Q. Well, now, when you did the Night.EXE installation, we had a similar screen with that line up at the top that says, to install, or something, and the word install is blinking, right? A. That is correct. Q. So is that part of that same INT.config or INT. new config? A. That's correct. Q. Okay. So that's why we're seeing the same thing because it's the same thing that's on the Night.EXE? A. That particular routine. Q. Okay. Now we're in the program itself and we have what we refer to from time to time as the main menu, right? A. Yes. Q. Okay. Now, in Night.EXE did the screen look different? A. Yes, it did. Q. Okay. In what way? A. It looked different in that there were numbers. Q. Numbers to the left of each of those categories? A. That's correct. Q. Okay. And you don't have numbers to the left of these category names, do you? A. Right, because I couldn't use my file data base management program I decided to use my menu program. Q. Okay. A. And so I, and that, that's the difference. It's totally different. Q. Well, let me ask you. In this case then, since we can't pick the category by selecting the number, we have to use that red bar that's up on the first item, archive utilities, right? A. Correct. Q. And we move that, that red bar, that highlight bar around? A. Yes, you can. Q. Okay. Now, you didn't do that for the Night.EXE programs, did you? A. That's correct. Q. Okay. But weren't there some other programs that you as a matter of fact displayed that were published by the plaintiff here that in fact were quite similar to this screen, right? A. Yes. They copied off this. Q. They did? A. That's correct. Q. I see. Okay. This one was first published when, this Pier One? A. It was published in January I believe of '92, December or January of '92. Q. Okay. So the things they came out with after January '92 would have been copied off this Pier One disk? A. I uploaded a prototype of this -- Q. Wait a minute. I'm sorry. I meant it to be kind of a yes or no question. A. Ask the question again. Q. The, the copying that they did, well, the programs that were published by Night Owl were published after January of 1992, and they would have copied that feature from there, right? A. They copied, they published some after and they published some before this was actually published. Q. Okay. Well, now -- THE COURT: If they published it before, they couldn't have copied it. THE WITNESS: Your Honor, they were privy to it. One of the people that was working with Richard Graham was a brother of my client, and my client did make a mention to me that he did share some of his ideas. THE COURT: He would have been sharing something that you had written for him, your client. THE WITNESS: Yes. THE COURT: But you didn't write it till January '92, right? THE WITNESS: That's when it was published, Your Honor. BY MR. KITCHEN: Q. Well, let me ask you, Mr. James, since you brought that up, because Mr. Armenia was on the stand for a while, and he, he talked about publishing that disk, and he said that basically you delivered to him the final program, the retrieval program in a matter of days before he actually sent it to be, to be pressed, isn't that correct? A. It was actually about six hours when he got the final released version. Q. Okay. A. He had betas that he was not permitted to publish. It was the same arrangement as Richard had. Q. Okay. A. He was to look at them but not for publishing. Q. So basically if this, if this Pier One was, was produced in January of '92 and was sent, let's say to the manufacturer in December or something like that, I mean, for somebody to have copied your program it would have been something that they did near the end of 1991, right? A. Not in this particular case. Greg did have a prototype of this retrieval system about six months before -- a few months before it was published. Q. Just a few months? A. It was probably around six months -- Q. Six months? A. -- before he published, that's right. Q. Okay. So if he published this thing in '92, then, January of '92, then he had essentially