Phoenix CD 5.0/Phoenix-CD 5.0.iso/nightowl.001

Text File | 1994-04-11 | 321KB | 6,270 lines

                              UNITED STATES DISTRICT COURT
                              WESTERN DISTRICT OF NEW YORK

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

         RICHARD E. GRAHAM,                           91-CV-800

                             Plaintiff,
                                                      Buffalo, New York
         -vs-                                         September 7, 1993

         LARRY E. JAMES,

                             Defendant.
         ------------------------------------

                                          TRIAL
                           BEFORE THE HONORABLE JOHN T. ELFVIN


         APPEARANCES:


         For the Plaintiff:            DENIS A. KITCHEN, ESQ.
                                       8340 Main Street
                                       Williamsville, New York 14221


         For the Defendant:            JAMES OSTROWSKI, ESQ.
                                       384 Ellicott Square Building
                                       Buffalo, New York 14203


         Court Recorder:               JEANNE B. SCHULER


         Transcription Service:        ASSOCIATED REPORTING SERVICE
                                       Lower Level One
                                       120 Delaware Avenue
                                       Buffalo, New York 14202
                                       716-856-2328


         Proceedings recorded by electronic sound recording.  Transcript
         produced by transcription service.

                         P R O C E E D I N G S

                   THE COURT:  The Court is fairly familiar with the
         case.  Anything that either of you has in mind, before we
         start?
                   MR. KITCHEN:  Your Honor, I have an up to date list
         of the Plaintiff's Exhibits.  I'll give a copy to Mr.
         Ostrowski.
                   THE COURT:  Also, of course, you know how the
         courtroom works, Mr. Kitchen.  Everything goes into the
         machine, which means you've got to put your lips up against a
         microphone, either on the table or up here.  Otherwise you'll
         be unrecorded, and you know the damage a Court Reporter can do
         you.
                   MR. KITCHEN:  Yes.  Your Honor, do I understand that
         the Exhibits that were previously submitted are now here?
                   THE COURT:    I don't know, see if Mr. Gentner has
         any.  Do you have any Exhibits?  What Exhibits are those?
                   MR. KITCHEN:  Well, we had a preliminary hearing on
         December --
                   THE COURT:  I know we did.  I got a great big fat
         transcript here.
                   MR. KITCHEN:  Yes.  Yes, sir.  I do not know exactly
         what happened to the Exhibits at the end of that hearing.  I
         believe they were left with the Court.
                   THE COURT:  And this came to your cognizance this
         morning?
                   MR. KITCHEN:  Well, actually over the weekend, Your
         Honor.  I have, I had at one point thought that I had just put
         them somewhere for sort of safekeeping, but I could find no
         original Exhibits and concluded that they were all with the
         Court.
                   THE COURT:  Well --
                   MR. KITCHEN:  I would have assumed that would have
         been the normal case.
                   THE COURT:  Well, the matter, let's see, we had
         submitted to me this preliminary relief matter.
                   MR. KITCHEN:  And as I recall, Your Honor, we did
         have a later argument and then a submission of some, some
         briefs.
                   THE COURT:  And at the time of argument I normally
         would have received the Exhibits.
                   MR. KITCHEN:  They were put in evidence, of course.
                   THE COURT:  Basically they are Plaintiff's Exhibit 1
         through 12.  There they are, just like that.  Ask Mr. Gentner
         and he produces.
                   MR. KITCHEN:  These are them, Your Honor, or these
         are they.
                   THE COURT:  One, how do they mesh with this list
         you've given me now?
                   MR. KITCHEN:  I have taken pains to use the exact
         same numbers, and unless the Court wants me to affix new
         stickers on them, I would just as soon use the --
                   THE COURT:  No.  I don't think -- I think it would be
         better not to, as long as you have gone right down the line, 1
         through 12.
                   MR. KITCHEN:  Yes.  I picked up with my additional
         Exhibits at number 13.
                   THE COURT:  And we had one defense Exhibit but that
         was not admitted, Defendant's Exhibit 1, a one page document
         signed by Anderson December 1991.
                   MR. KITCHEN:  Yes, sir.
                   THE COURT:  That was not admitted.  Have you any list
         of Exhibits, Mr. Ostrowski?
                   MR. OSTROWSKI:  Your Honor, I do not.  At this point
         I will have three or four, and I hope to have that list to you
         by --
                   THE COURT:  By the time you start using them.
                   MR. OSTROWSKI:  By earlier than my case, Your Honor.
         Hopefully at lunch time.
                   THE COURT:  All right.  I guess we can proceed, if
         you're ready.
                   MR. OSTROWSKI:  Your Honor, I have several matters
         I'd like to put on the record.
                   THE COURT:  That's what I was asking about.  We don't
         have the money, you know, to buy these little clips that you
         can put on your lapel and you can walk all over the room and
         have everything go into the machine, so --
                   MR. OSTROWSKI:  Like Phil Donohue.
                   THE COURT:  -- I have to burden you with this task of
         getting yourself to a microphone.
                   MR. OSTROWSKI:  There's a number of things I wish to
         put on the record, and hopefully I can think of them all off
         the top of my head.  So I'll just go in no particular order.
              Number one, I received the subsequent programs from Mr.
         Kitchen, it was only last week, and here's a note right in
         front of me; 8/31/93, I received basically what I understand is
         what they copyrighted.  I also received a program that looks to
         be about a month later than that, which was referred to in the
         preliminary hearing, as a rewritten program.  I also received
         a program that was, had a copyright date of 1992 on it, this
         one here.  And, and then after further conversations with Mr.
         Kitchen, he directly mailed to my expert, Professor Duchan at
         Canisius College, about whom more later, because he will
         testify, a fourth program which I have not seen.
              Now, I made a discovery demand for these various items.
         It's dated October 12th, 1992, and I'm certain that I mailed it
         that day, or thereabouts, in any event.  I received nothing.
                   THE COURT:  That's October '92.  What did you do
         after that?
                   MR. OSTROWSKI:  I received essentially nothing in
         response to that and was forced to move --
                   THE COURT:  Now, what time period, what time period
         are we at now, when you've received nothing?
                   MR. OSTROWSKI:  Well, I'm searching for my, my motion
         to compel, which will tell me, will bring me up to date.  I got
         an order to show cause.
                   THE COURT:  From Judge Maxwell.
                   MR. OSTROWSKI:  On October 13th, '92.
                   THE COURT:  That was when you filed the request, or
         served the request.
                   MR. OSTROWSKI:  I'm sorry, Your Honor.  Yeah.  I
         apologize.  I did try to, I did try to work out with Mr.
         Kitchen verbally over the phone that, what programs I would
         receive.  We were nearing the deadline for discovery, and I
         admit that, and I was trying to do this at the last minute.
              Nevertheless, Judge Maxwell did order that these documents
         be produced, and unless you beat me to the punch, I'll give you
         the date of that order shortly.
                   THE COURT:  I don't know.  Are you happy or unhappy
         at this moment?
                   MR. OSTROWSKI:  I'm unhappy, Your Honor.
                   THE COURT:  And why are you unhappy?
                   MR. OSTROWSKI:  Because first of all, the order is
         dated November 24th, 1992.  I'm sorry.  1992.  It did require
         that I deliver confidentiality agreements, which I delivered on
         June 7th, 1993 by hand, signed by myself and -- I should say
         signed by me, I guess.  And Professor Duchan.  And only on the
         eve of trial do I receive the, the documents.
              First of all, I have several points.  First of all,
         document 3, which I will -- the one dated 1992, Your Honor,
         which in due course I will mark for identification, at the very
         least.
              It is very difficult to read, and I spoke with my expert
         last night, and he cannot read it.  He simply cannot read it.
         The first two were readable but the late production of these
         documents has severely handicapped our presentation of the case
         because it's given the expert less time.
              I immediately got over to Canisius and met with him, and
         gave him the materials, and he's had to look at it over the
         holiday and he had guests at his house, and so on.  But he has
         looked at, he has looked at my client's program and the first
         version and is prepared to testify about those.
              But furthermore, he was handicapped because the format --
         well, we received the programs on paper, and the demand to
         produce says printed out and available in disk or CD ROM
         format.  Either disk or CD ROM would have allowed him, A, to
         read them all very clearly, B, to look at the programs in the
         way that computer programmers look at programs, which is not
         really on paper, but on computers where they can play around
         with the functions.  And more specifically, there are, there
         are, I am told by two experts, the second one I will get to in
         a moment, that there are programs that could compare --
                   THE COURT:  There are what?
                   MR. OSTROWSKI:  There are programs --
                   THE COURT:  Yeah.
                   MR. OSTROWSKI:  -- that can compare how similar to
         other programs are, but obviously, I'm sure Your Honor knows
         that you can't do that unless you have it in computer format,
         a disk or CD ROM.  I told -- well, let me just say that I would
         like to reserve my rights to move for various orders of
         preclusion, as they become relevant throughout the trial.
                   THE COURT:  Well, I would tell you in advance, it
         would be, have to be a, you'd have to climb a very steep hill
         to get success in that regard in a non-jury trial.
                   MR. OSTROWSKI:  And in the other, in the alternative,
         Your Honor, let me just point out also that over the weekend I
         attended a convention and by pure accident ran into an expert
         in computer programming.  His name was Perry Metzger.  He's an
         Assistant Vice President at Lehman Brothers.  He told me that
         he was familiar with the C language and would be happy to
         review the programs, and we had a couple days out there where
         that would have assisted in the, in my preparation for trial,
         although it's unlikely that he would have appeared.
              I called Mr. Kitchen and I believe he arbitrarily refused
         to allow the expert to --
                   THE COURT:  He's what, Mr. Kitchen what?
                   MR. OSTROWSKI:  He arbitrarily refused to allow the
         expert to look at the program.  There was a confidentiality
         rule, and I said I would be prepared to supply him with a order
         of confidential -- an agreement of confidentiality.  He
         initially insisted before Judge Maxwell that there be such a
         procedure of confidentiality because he was concerned that Mr.
         James would simply come up with one of his computer buddies as
         an expert and therefore expose the confidentiality of the
         program, and since this man is a bona fide computer expert
         employed by a major Wall Street firm, there was no basis for
         him to refuse that.
              I just want to put these things on the record, and I would
         in the alternative do an order of preclusion.  I believe that
         there are separate, there are different issues in this case.
         There are rulings that the Court may make which may make --
         which may moot any consideration of whether subsequent programs
         were similar.
              We are prepared to proceed on the issue of the similarity
         of the first program that, the first program that is a
         derivative of Mr. James' program and put expert testimony on
         about that.  We are not prepared to proceed to the issue of
         similarity of the other programs because of the late receipt of
         such programs, the bad format in which they were received, and
         the fact that the second program is absolutely unreadable.  And
         I would ask for some leeway.
              And first of all, I would ask that, I have issued
         Subpoenas for the same items today and I don't know what has
         come into Court today, but I would ask for some leeway to put
         additional proof on when those, when a legible copy of the
         program is received and my expert has had a chance to review
         it.
                   THE COURT:  Which expert, the one you ran into over
         the weekend?
                   MR. OSTROWSKI:  No, Your Honor.  That's, that was,
         we've parted ways.  That's simply what's assisted in a more
         intelligent presentation of the case.  I never intended to
         replace him with, to replace the professor at Canisius with
         him.  But I think it's indicative of, you know, an approach to
         litigation of basically stonewalling, in wearing down the
         opposition, and I intend to get into some of this in the actual
         testimony, that this was the, part of the strategy of the
         plaintiff throughout, to wear down an opponent who has very
         little money to litigate this complicated action.
              I have another point, but perhaps I would stop in case the
         Court wants to inquire.
                   THE COURT:  No.  You're just promising me further
         flying feathers about it as the trial commences.
                   MR. OSTROWSKI:  Your Honor, the other point is that
         on the issue of copyright registration I personally registered
         Mr. James' program, and I unfortunately have misplaced the
         registration receipt.  I found this out last week, and you
         probably don't recall, but when we set the trial date I did
         inform you that I'd be going out of town.  I'm not making
         excuses, but I was not in town on Thursday or Friday, and had
         very little time Wednesday.  I did speak to Mr. Kitchen.  I
         gave him the application.  I gave him the Federal Express
         mailing, stamped and dated.  I gave him the, a copy of a money
         order paying for the registration receipt in the correct
         amount.  I also gave him a printout from the Library of
         Congress which showed that, which showed both programs,
         frankly, and we've been given no information at all about Mr.
         Graham's registration number or any other details.  All those
         details were on the printout, as well as Mr. James' program and
         his registration number, and so I asked Mr. Kitchen to
         stipulate simply to the issue that we had registered the
         program.
                   THE COURT:  He who?
                   MR. OSTROWSKI:  I'm sorry, Your Honor?
                   THE COURT:  He who had registered it?
                   MR. OSTROWSKI:  That I personally, and that the
         defendant, as the defendant's agent, I had registered the --
         that the program had been registered.  And the, not only to
         cover my behind, excuse the expression, for having misplaced an
         important document, but also to avoid --
                   THE COURT:  Six letters are always better than three.
                   MR. OSTROWSKI:  Yes, Your Honor.  But also to prevent
         me from having to testify.  I believe that I can supply case
         law to the Court that an attorney can testify as to a
         ministerial act, such as filing a copyright notice.  The bottom
         line, Your Honor, is --
                   THE COURT:  Well, does filing itself carry the day,
         or do you need some action by the Library of Congress or
         whoever runs the thing?
                   MR. OSTROWSKI:  I believe, Your Honor, that there's
         even some case law that some actions have been maintained when
         registration has been refused.  But my, what I would like to
         do, Your Honor, is over the lunch hour, I've spoke to the
         copyright office last week, anticipating that no stipulation
         would be forthcoming.
              There is a procedure wherein I can send down a check by
         express mail and hopefully get a return receipt in the mail,
         and that's what I would -- I would like -- I would ask the
         Court for a reasonable extension simply to file that document.
         I hope to have it by Friday, but I would ask the Court --
                   THE COURT:  Well, this is a self-probative document.
         It, once you have it it shows the fact of registration.
                   MR. OSTROWSKI:  Yes, yes, Your Honor.  I have not
         considered the admissibility of it.  I'm thinking of certified
         copies and so on.  I take it it's an admissible document.
                   THE COURT:  Well, it strikes me facially as being an
         admissible document.  It may not be probative or relevant.  I
         assume it's relevant.  But I'm just thinking, you might be able
         to proceed on the basis that it has been registered, and of
         course, if it turns out you can't prove that, that rug's going
         to be pulled out from under you.
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE COURT:  And then you could fill in the gap ASAP
         with the certificate.
                   MR. OSTROWSKI:  Yes, Your Honor.
                   MR. KITCHEN:  Your Honor, with respect to those
         particular documents, I would agree that once the receipt comes
         back and we in fact -- and by the way, the receipt, as we
         understand it, and what we're supplying, is nothing more than
         the TX form which is submitted to the copyright office which
         then is stamped appropriately and receipted, and then a copy is
         sent back.  So that seems to be, would seem to be adequate.
          The reason that I would not, or felt I could not
         stipulate, is that, although I have no reason to question the
         veracity of Mr. Ostrowski in that he had put this in the mail
         or sent it off, I am aware of not only the, the possible
         failures of the Post Office Department, but perhaps the
         failures of the copyright office as well.  So we're not sure
         exactly when this was.
              But there's an additional reason, and that is because --
                   THE COURT:  Well, that's prudent.  You want to see
         the evidence.
                   MR. KITCHEN:  Yes.  But there's an additional reason
         also, which -- and I can't, I'm not equipped to fully address
         the legal aspects of it as yet, but that was done apparently on
         the same day that the answer with counterclaim was signed and
         served and all that.  And if in fact the copyright was not
         registered by the time the, the counterclaim was interposed,
         the counterclaim may, as a procedural matter, fail, although I
         can't cite a chapter and verse for that.
                   THE COURT:  Then we could deal with the legal
         significance of that when and if.
                   MR. KITCHEN:  Yes.
                   MR. OSTROWSKI:  Your Honor, the other item, more
         friendly tone, I will be joined by co-counsel, William J.
         Ostrowski, who will not participate in the questioning.
         However, should I take the stand, and I take it I must, on the
         issue of registration, I take it that he would be questioning
         me on that issue alone.
                   THE COURT:  All right.  In this Court as opposed to
         another, he can be addressed as Judge Ostrowski.
                   MR. OSTROWSKI:  Thank you, Your Honor.
                   THE COURT:  Are we ready to proceed?
                   MR. KITCHEN:  Yes, if we could just take a very brief
         break, Your Honor.
                   THE COURT:  Sure.  Go ahead.  Sure.
              (Short recess taken.)
                   MR. KITCHEN:  The only thing I wish to bring up, just
         preliminarily, is, we might want the opportunity to perform
         some demonstrations using a computer which Mr. Graham has
         brought with him.  And I'm asking the Court, what might be the
         best way to do that.  We could set it up.  It is not something
         like a video where we could, well, hook up a couple of screens,
         and people can stand maybe 20 feet away and appreciate it all,
         because the material is understandably in a written --
                   THE COURT:  Well, I have no problem with that.  I'm
         just wondering about whether the Court will be able to
         comprehend what's being shown.
                   MR. KITCHEN:  Well, frankly, looking back at the
         preliminary hearing, I daresay that a picture would be worth a
         thousand words because we were, of course, talking about things
         at length and detail, as you will recall, that I marvel at the
         Court's ability to have not only comprehended them, but been
         able to actually put it in the Court's own words in the final
         order.
                   THE COURT:  I just put on the record, I am not a
         computer expert.
                   MR. KITCHEN:  Yes.  You made the same statement then.
         I daresay your knowledge of that has increased considerably,
         perhaps as a result of that hearing.  But in any event, it may
         still be helpful to actually see these --
                   THE COURT:  Oh, sure.  I have no problem, and we can
         cozy around wherever it has to be set up.
                   MR. KITCHEN:  Okay.  In any event, Your Honor, I'll
         call Richard Graham.
              (RICHARD E. GRAHAM, Plaintiff, Sworn)
                   THE COURT:  And you are Richard E. Graham, and I
         know, have you moved since December '91?
                   THE WITNESS:  December '91, yes, sir, I have.
                   THE COURT:  Where do you live?
                   THE WITNESS:  I live in Jamestown, New York.
                   THE COURT:  Where do you live, street address?
                   THE WITNESS:  1611 Falconer-Stillwater Road.
                   THE COURT:  That's still in Jamestown?
                   THE WITNESS:  Yes.
                   THE COURT:  Where does that go, Falconer-Stillwater?
               THE WITNESS:  It's off Route 60.
                   THE COURT:  Does that go up towards Kendall Station
         or where?
                   THE WITNESS:  Near Ticone.
                   THE COURT:  Still in Jamestown?
                   THE WITNESS:  Yes.
                   THE COURT:  All right.  Go ahead.  Take the witness
         chair.
                   DIRECT EXAMINATION
         BY MR. KITCHEN:
         Q.   Mr. Graham, are you in business?
         A.   Yes, sir, I am.
         Q.   Okay.  What is the name of your business?
         A.   Night Owl's Publisher, Inc.
                   THE COURT:  Excuse me?
                   THE WITNESS:  Night Owl's Publisher, Inc.
         BY MR. KITCHEN:
         Q.   Has that always been the name of your business?
         A.   No, sir, it was not.
         Q.   Was it previously somewhat different or --
         A.   Yes, sir, twice.
         Q.   What was the last change?
         A.   The last, from this time before it was Night Owl Computer
         Service.
         Q.   Okay.
         A.   Before that it was C.A.R.R.S., C-A-R-R-S.
         Q.   Back in December of '91 when we were here before, was it
         the previous name, Night Owl Computer Service?
         A.   Yes, sir.
                   MR. OSTROWSKI:  Objection.  Leading.
                   THE COURT:  It's innocuous.  I'll allow it.
         BY MR. KITCHEN:
         Q.   When did you make the change?
         A.   I made the change August 1st of 1992.
         Q.   Okay.  Could you describe what your business does right
         now?
         A.   We publish CD ROM disks, compact disks.
         Q.   Is that any different from what you did back in December
         of '91?
         A.   No, sir, it's not.
         Q.   Okay.  What was the reason for the change of name?
         A.   Well, my accountant figured it's time that we
         incorporated.
                   MR. OSTROWSKI:  I'm sorry.  I can't hear, Your Honor.
                   THE WITNESS:  It was time my accountant had decided
         we should incorporate.
                   THE COURT:  You can come sit in the jury box, if you
         want.
                   MR. OSTROWSKI:  I'll consider that.  I have some
         papers though.
                   THE COURT:  No vote.
         BY MR. KITCHEN:
         Q.   Okay.  So in actual fact, you incorporated?
         A.   Yes, sir, I did.
         Q.   And that's what took place on August 1st, 1992?
         A.   Yes, sir.
         Q.   And prior to that, you were not incorporated?
         A.   No, sir.  We're a d/b/a.
         Q.   All right.  Okay.  Can you tell us just briefly, what is
         a, what is a compact disk?
         A.   Compact disk is a, well, it's a CD -- it's not a floppy,
         it takes a bunch of programs that you can take and put on one
         medium.  Otherwise it's a plastic piece of material.
         Q.   Okay.  Showing you Plaintiff's Exhibit 1, is that an
         example of what you just described?
         A.   Yes, sir.
         Q.   Okay.  Is that essentially similar to a music CD.
                   THE COURT:  Essentially similar to what?
                   MR. KITCHEN:  A music CD.
                   THE WITNESS:  Similar but different, without audio.
         BY MR. KITCHEN:
         Q.   Okay.
         A.   This here is strictly computer programs.
         Q.   Okay.  In other respects, does it look like a --
         A.   Music CD?
         Q.   -- audio, right?
         A.   Yes.
         Q.   Okay.  Now, this particular kind of CD ROM disk, what does
         it have on it?
         A.   Computer programs, all different sorts.
         Q.   And this is stored as data on this disk?
         A.   Yes, sir.
         Q.   How much can you store on one of these CD ROM's?
         A.   Well, back at the last trial it was about 10,000 programs,
         now it's about 5,000 because the programs have gotten bigger.
                   THE COURT:  5,000 programs.
                   THE WITNESS:  Different --
                   THE COURT:  What's a program?
                   THE WITNESS:  One program, like say, we'll use, say
         an editor for a typing program or a child's game, that's going
         to run --
                   THE COURT:  How long would a program be?
                   THE WITNESS:  -- all one program.  Like a game --
                   THE COURT:  How long would a program be?
                   THE WITNESS:  A program could be anywhere from 112K
         to 200K to a meg.  It really depends how big the program was
         made.
                   MR. KITCHEN:  The term --
                   THE COURT:  So, but the capacity of the disk then is
         in a certain number of --
                   THE WITNESS:  Capacity of -- right, you can only put
         700 megs, 712 to be exact, meg, on a CD ROM.  We usually store
         anywhere from 660 to 650.
         BY MR. KITCHEN:
         Q.   And by K you mean 1,000 bytes?
         A.   Right.
         Q.   All right.  And by meg you mean?
         A.   One million characters, right.
         Q.   Okay.  All right.  So basically, one of these things can
         store then data or programs totalling up to 720 million
         characters?
         A.   Yes, sir.
         Q.   Okay.  And you indicated that when we had this hearing
         before you said it would take about 10,000 programs to fill up
         one of these, but now it's down to 5,000?
         A.   Yes, sir.
         Q.   What's the biggest reason for that change?
         A.   The change is that the programs are getting bigger.
         They're getting a lot more style to them.  You know, otherwise
         the people are taking time to really add graphics and color,
         and everything, you know, is getting just bigger.  The execute
         files are getting bigger.  Their documentations are bigger.  So
         once you compile that and zip it up it's in a bigger file.
         Q.   Now, that last term you used I think was zip it up, right?
         A.   Right.
         Q.   Okay.  Is there any way to make the storage of a lot of
         data or program a little more efficient on a disk?
         A.   Yes, by zipping it.
         Q.   Okay.
         A.   Unzipped that disk would be more than 700 meg.
         Q.   Okay.
         A.   It could be a gig, a gig.5.  A gig is one --
         Q.   What do you do when you zip a program?
         A.   When you zip it you use Phil Katz' program called --
                   THE COURT:  What's the verb you're using, Z-I-P?
                   MR. KITCHEN:  Yes, sir.
                   THE WITNESS:  When you zip a program you're using a
         person's program called Phil Katz', it's called PK.ZIP or
         PK.UNZIP.  PK.ZIP zips a program up.  What it does is, well,
         actually it's like taking a bunch of letters, putting them in
         an envelope and sealing it.  It explodes -- or, it expands, or
         you know, it --
         BY MR. KITCHEN:
         Q.   Reduces?
         A.   -- reduces these files down, right.
         Q.   Okay.  Does it change the --
                   THE COURT:  So you reach your hand in the mailbox,
         you come out with an envelope of all these characters, instead
         of having them spew out one by one.
                   THE WITNESS:  And then you unzip them, and it opens
         back up again.
         BY MR. KITCHEN:
         Q.   Okay.  How much compression can you get by doing this?
         A.   It depends really on the program.  An execute file it
         doesn't compress that much, but text files, documentations and
         stuff like that does compress quite a bit, anywhere from 50 to
         52 to 60%.
         Q.   Okay.  So essentially, in the unzipped format then, the
         720 meg of various programs would unzipped perhaps be almost
         twice that?
         A.   Oh, yes, sir.
         Q.   Okay.  Now, can you relate the capacity of these at all to
         the capacity of, say, floppy disks?
         A.   Floppy disks --
                   THE COURT:  Floppies come in different sizes, don't
         they?
                   THE WITNESS:  Floppies come in 1.4, 1.2, 720, 360.
                   THE COURT:  So you have to bring it down to which
         floppy you --
                   THE WITNESS:  Which floppy we need.
         BY MR. KITCHEN:
         Q.   Right.  Can you give us some, some kind of comparison?
         A.   I'd say roughly 1.2 meg floppies, if you're using a 1.2,
         5-1/4 floppies, it would take, you could put, you would be able
         to put 600 of them floppies on that disk.
         Q.   Now, when you say it carries programs, I think a lot of us
         are acquainted with programs.  You can buy commercially popular
         ones like Word Perfect and the like.  But what kind of programs
         do you have on your CD ROM's?
         A.   We carry public domain, shareware, freeware, beerware.
         They're all different classes of programs.
         Q.   Okay.  Well, now, can you tell us, first of all, what is
         a public domain program?
         A.   Public domain is free access.  Otherwise there's no charge
         for that program.  The gentleman has gave it up to the public
         domain.
         Q.   Okay.  How about, what is shareware?
         A.   Shareware, there is two types.  There's ASP or there's
         just plain shareware put out by an author claiming shareware.
         And that could be, the one put out by a gentleman, it really
         depends on how he writes his documentation up.  He says, you
         could try the program, you like it, you buy it.  ASP is the
         same trademark, but you know, theirs is actually pushing more
         or less supporting the author.  That's the purpose of ASP is to
         support the author of that product.
         Q.   ASP is a company?
         A.   ASP is a company, yes.
         Q.   Okay.  Now, on shareware, are you free to copy it?
         A.   To an extent, now.  Back then, yes.  Now you can't.  Some,
         there's a lot of restrictions in files that do not allow CD ROM
         publishers to use the material.  You have to contact the author
         personally or pay royalties now.
         Q.   You used another term, beerware?
         A.   Beerware, that's more or less free software.  There's no
         restrictions.  Otherwise, it's almost like public domain, but
         it's not.  He's still retaining his copyright on that program.
         Q.   And how about, the other term you used was freeware?
         A.   Freeware is, everybody -- I don't know where beerware came
         up.  I think it come up after they come up with the freeware
         program.  There's new-ware.  There's a lot of definitions.
         Q.   Okay.  Now, these programs, you have authority to put
         these on these disks that you publish?
         A.   Yes, sir.
         Q.   Okay.  And I take it with public --
                   THE COURT:  Do you have authority, do you mean, do
         you have a license to?
                   THE WITNESS:  No, sir.  We have permission from --
                   THE COURT:  Or are they in the puplic domain?
                   THE WITNESS:  We have permission with the public
         domain that --
                   THE COURT:  If it's in the public domain you don't
         need it.
                   THE WITNESS:  Public domain, we don't need
         permission.
                   THE COURT:  Those that aren't in the public domain,
         what do you do?
                   THE WITNESS:  We have permission, right.  Because we
         are --
                   THE COURT:  Do you pay a fee?
                   THE WITNESS:  Because we're ASP approved, yes, sir.
                   THE COURT:  Do you pay a fee?
                   THE WITNESS:  Yes, sir, I do.
                   THE COURT:  To?
                   THE WITNESS:  ASP.
                   THE COURT:  A-S --
                   THE WITNESS:  ASP.
                   THE COURT:  ASP.
                   THE WITNESS:  Association of Shareware Professionals.
         BY MR. KITCHEN:
         Q.   Now, if we were to take a floppy disk, something with only
         1 megabyte or 1.2 megabytes on it, and put it into a computer,
         and we wanted to see what was on that disk, what would we do?
         A.   First off, I'd look for the execute file and I'd fire up
         the execute file.  If it was named Dog, then I'd type Dog, and
         would execute that file.
         Q.   Okay.  And if -- how would you know a file was an execute
         file?
         A.   You look at the last three characters after the period.
         Q.   And when you say, you look at the last three characters
         after the period, you referring to the name of a file?
         A.   Right.
         Q.   Okay.
         A.   Like a file could be named --
         Q.   Well, Dog was a good example.
         A.   Dog, dot.  Dog, period, an actual period, D-O-C, which
         means doc, it could be T-X-T, which means text.  It could C-O-
         M, which is com, E-X-E, which is execute.
         Q.   Okay.  And you'd look for the one that had the EXE after
         it?
         A.   EXE file, yes, sir.
         Q.   And then you would, you would type whatever the name was
         before the period, right?
         A.   Yes, sir.
         Q.   And what would happen?
         A.   It would fire that program up.
         Q.   Okay.  When you say fire it up, what do you mean?
         A.   Well, it would execute that program.
                   THE COURT:  Put it on the screen?
                   THE WITNESS:  It would execute that program and bring
         it up on the computer.
                   THE COURT:  Is that what you mean by firing it up?
                   THE WITNESS:  Yes, sir.  It would bring that program,
         physical program up, so you could use it.
         BY MR. KITCHEN:
         Q.   Now, how would you know which files were on that
         particular disk?
         A.   You do a D-I-R.
         Q.   Okay.  When you say you do a D-I-R, what do you physically
         do in the computer?
         A.   You type DIR on your keyboard, either W or just DIR, and
         hit enter.
         Q.   Okay.  And what happens when you do that?
         A.   You will see your files that are on that disk, that's on
         that disk.  If there's 24 files, there will be 24 files there.
         Q.   And they just come up on the screen in a list?
         A.   Yes, sir.
         Q.   Okay.
         A.   And then you can tell which the extension is, and whatever
         the extension was that you want, you're looking for, then you
         would, you would run the program.
         Q.   Is that a typical way of finding out whatever happens to
         be on a disk?
         A.   Yes, sir.
         Q.   Well, now, what happens when you have some 5,000 files on
         a disk, can you still type DIR and see them that way?
         A.   You can see them but you're not going to know what they
         are.
         Q.   Okay.  You mentioned that to get those things started you
         type in the letters that come before the period?
         A.   Yes, sir.
         Q.   How many letters can you put before a period?
         A.   DOS is limited, I got to think now.  I think it's nine
         characters.
         Q.   And you can't use any more, other than the three on the
         end?
         A.   Right, right.  It will only allow you so many characters.
         Q.   And so whatever the label is for this particular program,
         you mentioned Dog, I mean, you can't go over this specific
         number of characters, right?
         A.   Right.
         Q.   Well, that doesn't, that doesn't allow for very elaborate
         titles, does it?
         A.   Say that again.
         Q.   That doesn't allow for very elaborate titles?
         A.   Well, actually, just because of what the file says, that
         doesn't mean what that's about.
         Q.   Oh, I understand, but what I mean is, you had mentioned
         earlier that you might see labels on the programs, on the
         various files, but you may not be able to tell what they were?
         A.   Right.
         Q.   Is part of that reason because of the fact that you're so
         limited in the number of characters that you could put as a
         label on it?
         A.   No, no.
         Q.   Well, I mean, if you just hit DIR, that's all you see is
         the name of each file, right?
         A.   You see the name of each file, right.
         Q.   Okay.  How would, how would a person, if they just stuck
         a floppy in there and didn't know what the, what the various
         files meant, how would they figure out what they were, what
         they were about?
         A.   They could either execute the program or they could sit
         and read the documentation file.  They could type, you know,
         type the documentation file to their screen, or they could
         print it off to the printer and sit in there and read and
         figure out how it works.
         Q.   Isn't that somewhat impractical when we're talking about
         5,000 or 10,000 programs?
         A.   Well, yeah.
                   THE COURT:  Well, that's, the 5,000 or 10,000
         programs is just a warehouse.
                   THE WITNESS:  It's -- yes.
                   THE COURT:  You would bring one out and --
                   THE WITNESS:  It's storage, right.
                   THE COURT:  -- then you're talking about seeing what
         that particular program is that you've taken out.
                   THE WITNESS:  Right.
                   THE COURT:  Yeah.  All right.
         BY MR. KITCHEN:
         Q.   When this Plaintiff's 1 first came out, do you remember
         when that was?
         A.   September, October of '90.
         Q.   Now, perhaps you could explain because Plaintiff's 1 does
         have some letters up at the top, C.A.R.R.S.?
         A.   Yes, sir.
         Q.   What did that stand for?
         A.   Computer Assisted Records Retrieval System.
         Q.   Okay.  And was that a company or an organization?  What
         was that?
         A.   That was a company.
         Q.   Okay.  What was your --
                   THE COURT:  A what?
                   THE WITNESS:  A company.
                   THE COURT:  Yeah.
         BY MR. KITCHEN:
         Q.   What was your connection with that company?
         A.   I worked for it.
         Q.   What did you do for them?
         A.   I was to build CD ROM disks.
         Q.   Is that company still in existence?
         A.   No, sir.
         Q.   What happened to them?
         A.   They kind of went out of the way.
         Q.   Okay.
         A.   They just dissolved.
         Q.   Did, did you continue on in that business?
         A.   Yes, sir, I did.
         Q.   Okay.  And did you -- well, let me ask you this.  This
         particular one that was published, about how many programs did
         it have on it, do you remember?
         A.   I haven't looked at that disk since I put it out.  I'd say
         3,000 programs.  It was 250 meg.  It was nowhere near the
         capacity.
         Q.   Okay.
         A.   They wanted something to get quickly out into the market.
         Q.   Well, when somebody used that particular disk, that first
         one that came out in October of '90, how did people find out
         what was on it?
         A.   Well, we did have a text listing on the disk to tell you
         what the files were and what they were about.
         Q.   Okay.  So a person could print out that text listing and
         get an idea?
         A.   Yes.
         Q.   Did that give a little explanation as to how, as to what
         the programs were about?
         A.   Yes, sir.
         Q.   Okay.  How did a person read that, that text file?
         A.   At that -- well, they could either type it.  You can give
         the typed command and the name of the file, pipe it to your
         printer or read it through your monitor.
         Q.   Okay.  And then if they wanted to run the particular
         program that they thought they might be interested in, they
         would --
         A.   Then they would go to that subdirectory where that program
         is, unzip it to a work drive, or go to an A drive, wherever
         they wanted to put it, and use the program.
         Q.   Okay.  Did there come a time when you believed that you
         wanted to make this process for the user somewhat more
         efficient?
         A.   Yes, sir.
         Q.   Okay.  So what did you do?
         A.   Well, I went to the store and bought a lot of books, basic
         books, and just basically started trying to figure out how to
         create a retrieval.
         Q.   Okay.  When you say, create a retrieval, what was it you
         were trying to come up with?
         A.   Something where I could have the directories or structure
         or something show what is in each directory, each purpose or
         subdirectory that we gave it, to say, well, these programs are
         here, then be able to have a listing of each file in that
         directory, and plus their description.
         Q.   When you say subdirectories, you mean you took all these
         programs and broke them up into subdirectories?
         A.   Different areas, yes, sir.
         Q.   Okay.  How would you break them up?
         A.   I broke mine up in categories of 001-A, 002-A, 003-A, and
         so on.
         Q.   Well, that isn't very descriptive.  What did those -- did
         they follow some logical pattern?
         A.   Well, I did that for a reason.  Yes, sir, because the way
         I did my DIR's, I always had a locater and a type of directory
         that was on the top of the header of my DIR.  Otherwise, if I
         had 2,000 programs in that directory, inside of this listing
         would be at the top line the name of that directory and the
         second line would be the location of actually where that file
         was on that CD.
         Q.   What kind of names of directories are we talking about?
         A.   Communications, Pascal, Games, Word Editors, Line Editors.
                   THE COURT:  You're talking about the physical
         location of that program on the disk?
                   THE WITNESS:  Yes, sir, I am.
                   THE COURT:  Why do you need that?
                   THE WITNESS:  Well, because my theory was when I
         first started that, that I always wanted to use that to locate
         my files.  That was in my first disk and that's the way I
         wanted it.  And that was the only way I could figure at that
         time.
                   THE COURT:  So did you just type something in that
         automatically locates the program?
                   THE WITNESS:  Not at that time, no, sir.
                   THE COURT:  I see.
         BY MR. KITCHEN:
         Q.   And when you say communications directory, those were,
         would be just a subdirectory of just those programs that had to
         do with communication?
         A.   Yes, sir.
         Q.   Communication is a pretty broad term in the generic.  What
         do you mean in the computer context, communications?
         A.   Communications is, could be a COM program, communication
         program to otherwise hook up with other computers, or it's
         modem to modem.  It could be script files to run telex, or it
         could be script files that run Procom.  It could be dialers.
         Q.   Telephone dialers?
         A.   Telephone dialers.
         Q.   So these are all things that had to do with computers
         talking to computers?
         A.   Mainly, basically, yes.
         Q.   Okay.  And Pascal, you had another category of Pascal?
         A.   Yes, sir.
         Q.   What's that?
         A.   Pascal was more or less help libraries and stuff.
         Q.   Well, what is Pascal?
         A.   Pascal is another language like C programming, Basic,
         Assembly.
         Q.   In other words, it's a programming language?
         A.   Programming language, yes.
         Q.   Okay.  And these would be programs that would be helpful
         to somebody who worked with Pascal?
         A.   Yes, sir.  They were public domain released programs.
         Some were programs that people had released.  Some would be
         code.  Some would not be code.
         Q.   You said games was another one?
         A.   Yes, sir.
         Q.   How about utilities?
         A.   Utilities directory, yes.
         Q.   Okay.  What are utilities?
         A.   Utilities are like printers, print drivers, fonts -- well,
         no, fonts isn't in it.  Screen dumps, screen savers, which will
         after five minutes turn your screens off, it's everything.
         Q.   Why is it important to turn your screen off after five
         minutes?
         A.   So you don't get a burn-in.
         Q.   Okay.  Now, you have these several directories set up.
         How -- and that's what you were working on?
         A.   Yes, sir.
         Q.   Could you tell us a little more what you came up with in
         terms of that?  You were working on a retrieval system.
         A.   Well, when I first started it, I couldn't really find any
         examples in the book exactly how I wanted to go.  That's when
         I called Jeff Anderson.  I told Jeff what I wanted to do.  He
         came to my house and we sat down and we talked, and I said,
         well --
                   THE COURT:  Who is this, Mr. James?
                   THE WITNESS:  Jeff Anderson.
                   THE COURT:  Oh, Jeff Anderson.
                   THE WITNESS:  So we sat down and talked, and I showed
         him the DIR's, and I said, well, actually, what I want to do is
         use this first two lines to try to find what the name of the
         directory is and our location.  So what he did, he actually
         used that.  He used it through a data file that he kept on the
         CD that had exactly, first line would be directory 1, second
         line would be communications, third line would be the location
         of that file.
              So that way when he pulled up the program, the program
         would know how many directories were on that disk, and then
         when you picked directory 1, it would go into directory 1.
         BY MR. KITCHEN:
         Q.   And did you actually then come up with a complete program
         that worked?
         A.   Yes, sir, we did.
         Q.   Did you use it on a, any subsequent disks?
         A.   Yes, sir, we did.
         Q.   Which one did you use it on?
         A.   PDSI-002.
         Q.   Showing you Plaintiff's Exhibit 2, is that the PDSI-002?
         A.   Yes, sir, it is.
         Q.   Okay.  By the way, this -- were these numbers intended to
         be sequential, PDSI-001 and 002?
         A.   Yes, sir.
         Q.   Okay.  So subsequent volumes would have a higher number
         then, right?
         A.   Yes.
         Q.   All right.  Now, from the user's standpoint, what was,
         what was the difference between a user who bought your disk 1
         and a user who bought disk 2, in terms of what he did, how he
         did it, and how convenient it was?
         A.   Well, now it's more convenient because he doesn't have to
         do it at DOS.  He can do it through the retrieval.
         Q.   Okay.  He doesn't have to do it at DOS.  This is a -- this
         is the program that's got this DIR and that sort of thing?
         A.   Well, DOS is actually, is an operating system.
         Q.   Right.
         A.   It's just, you're down into DOS now instead of into a
         program.
         Q.   But I think you said with DOS, all you would get if you
         pressed DIR is a whole list of those --
         A.   Yes, sir.
         Q.   Okay.  So what did a person do with PDSI-002 that was more
         convenient?
         A.   Well, we pull up our program.  Once our program would come
         up, it would have a listing of directories, of what was in them
         directories, like the same thing, communications, games,
         Pascal, utilities, gifs, gif files, mac files, whatever.  Then
         they would pick which directory they wanted to go into.  Like
         say they wanted directory 10, they would put 10 in, and they
         would hit enter, and they'd go into that directory.  Then they
         would see all the actual files in directory 10 on that disk.
         Q.   Well, how was that -- was that more convenient than --
         because you said before, on the first disk, they'd just print
         out a text file and it would list everything?
         A.   Right.
         Q.   Okay.  They didn't have to do this with this, with PDSI-
         002?
         A.   No, they didn't.
         Q.   Okay.  Now, if they wanted to, if they saw a program they
         liked on the list or thought they might be interested in taking
         a look at and see how it ran, what would they then do?
         A.   They would have to hit the home key to exit to DOS.  It
         would shell out to DOS, and then the command would come up and
         tell them exactly what to do.  What I did is, when I shelled
         out to DOS, I wrote a text file, and that text file would
         follow that program to that shell, and it would tell them how
         to do it.  PK.UNZIP so and so 2, so and so, whatever work area
         they determined they wanted to send that file.  Then they could
         go over and play around with the program or whatever.  When
         they got through they'd type exit.  They'd end back up in our
         program.
         Q.   Now, was this process more convenient than what they had
         to do with the first disk that you put out?
         A.   Yes, sir.
         Q.   Okay.  Did you have a name for this particular program you
         put on PDSI-002?
         A.   Yes, sir, I did.
         Q.   What was it called?
         A.   Night.EXE.
         Q.   Okay.  And so that was an execute program, right?
         A.   Yes, sir, it was.
         Q.   Okay.  And it basically brought up this listing and --
         A.   Yes, sir.
         Q.   -- told the person what to do?
         A.   Yes, sir.
         Q.   Okay.  Now, when was, when was Exhibit 2 published,
         approximately?
         A.   October 1990.
         Q.   Okay.  Was that pretty soon after then the first disk?
         A.   Yes.
         Q.   Okay.  All right.  Did you, did you use that same program
         on subsequent disks?
         A.   The Night here?
         Q.   Yes.
         A.   No, sir.
         Q.   Okay.
         A.   Not until recently.
         Q.   Did, did there come a time when you wanted to make some
         improvements or changes to that program you had come up with?
         A.   Yes, sir.
         Q.   Okay.  When was that?
         A.   That was when we were  getting -- you know, we kept
         working with the program but we didn't make any headway so we
         decided --
                   THE COURT:  We, we is who?
                   THE WITNESS:  Me and Jeff Anderson.  So we had
         decided that we would go ahead and put out our next publication
         and continue to work on the Night.  We'd keep the Night off
         until we got it done.
         BY MR. KITCHEN:
         Q.   Okay.  So on -- let me show you Plaintiff's Exhibit 3.
         Plaintiff's Exhibit 3, what disk is that?
         A.   That's PDSI-003.
         Q.   Okay.  And what did that have on it?  Did that have the
         Night.EXE?
         A.   No, sir, it did not.
         Q.   What did it have on it?
         A.   Had a CARRS.EXE.
         Q.   Okay.  What was, what was that?  Was that the same as what
         was on the first, or what was CARRS.EXE?
         A.   CARRS was our actual company name when we went to CARRS,
         my first company name.
         Q.   Oh, okay.  Well, but what was CARRS.EXE?  Was that the
         same as the previous, Night.EXE?
         A.   No.  No, it's not the Night.EXE.
         Q.   Okay.  Well, what was, what was --
         A.   CARRS was Folio.
         Q.   Oh, okay.
         A.   That's a Folio package, a commercial package that we
         bought.
         Q.   Okay.  All right.  Now, explain to me, first of all, what
         kind of a program is Folio?
         A.   Folio is a data base type retrieval system.
         Q.   Okay.  And that's commercially available?
         A.   Yes, sir, it is.
         Q.   All right.  And what did you have to do to acquire that?
         A.   I had to buy it.
         Q.   Okay.  Do you remember what it cost?
         A.   It was $999 but I think I got a discount on it because I
         bought it from a guy out of Maryland which was about $650, if
         I'm not mistaken.
         Q.   Okay.  What was -- is this particular function what Folio
         was designed for?
         A.   Folio was -- yes, sir.  Well, it wasn't really designed
         for CD ROM's.  It was designed for building a data base, fast
         retrieval type stuff.  Just data bases, not do what I'm doing.
         Q.   Okay.  Now, were you allowed to, did you have some license
         or something to be able to use Folio on the disk?
         A.   Yes, sir, we do.
         Q.   Okay.
         A.   That's called a run-time license.
         Q.   All right.  That's run, R-U-N?
         A.   It's called Runtime.EXE.  That's the name of the program
         when we receive it, and we are to rename it the type of file we
         want, like called CARRS or if we continued on with the Night
         and it was ours, it would be Night.  But we wanted to keep them
         distinguishly different.
         Q.   Okay.  Now, were you satisfied with Folio, with the way it
         operated?
         A.   I could have used it for a couple more versions.
         Q.   Showing you Plaintiff's 4, was Folio used on Plaintiff's
         4?
         A.   That's not version 4.  That's version 3.1.  That was the
         second cut of the same disk.
         Q.   Okay.
         A.   Because if you notice between the two disks, the Folio
         label, the corporation, that was left off.  That was one of
         their registration parts.  You have to have that on there.  So
         we redid the disk.
         Q.   Okay.  And the -- by the way, that's Plaintiff's Exhibit
         4, but it's PDSI-003-1?
         A.   Yes, sir.
         Q.   Okay.  Okay.  Did you continue to work on developing your
         Night.EXE program?
         A.   Yes, sir, we did.
         Q.   Okay.  What improvements did you want to make to that
         program?
         A.   We wanted to take the screen that I had already written
         up, had the code for it.  It was a screen, a square box, that
         had copy, unzip, view, DOS, and quit.  We wanted that entered
         into the program.  Like I said, I'm not a programmer, so it's
         taken me a longer time to try to find it in the book, how to
         accurately string this into the program.
         Q.   When you say you had those on the screen and you wanted to
         be able to work them into the program, do you mean you wanted
         to be able to make the program do those things?
         A.   Yes, sir, I did.
         Q.   You mean like hit a button and it would copy?
         A.   Yes, sir.
         Q.   Or hit a button and it would quit?
         A.   Yes, sir.
         Q.   Hit a button and it would go to DOS?
         A.   Yes, sir.
         Q.   Okay.  Was there also an,  one of the selections that
         would start the program that you had selected?  Was that one of
         the --
         A.   Say that again, sir.
         Q.   Was there also a selection on that screen that would allow
         the program you picked to start up?
         A.   Yes, it would.  All you'd do is you would hit enter over
         the program and then you would have your options to do whatever
         you wanted to do.
         Q.   Okay.
         A.   The screen would pull up, another window would open, and
         you'd say, well, okay, there's the commands, copy, execute.
         Q.   Let's go back a minute to this zip and unzip business.
         You said that it saves a lot of space to zip something and
         reduce it in size?
         A.   Yes, sir.
         Q.   Would it allow, would it be runnable in its compressed or
         zipped format?
         A.   No, sir.
         Q.   You had to unzip it to --
         A.   You had to unzip it.
         Q.   Okay.  So did you also want that program to be able to do
         that?
         A.   Yes, sir, I did.
         Q.   Okay.  At the push of a button again?
         A.   Yes.
         Q.   Okay.  So would this then cut down the number of steps
         that a person or a user had to use to accomplish these things?
         A.   Yes, sir.  Then he could stay right in a program and do
         it.
         Q.   Okay.  Now, did you talk with Jeff Anderson about making
         some of these changes?
         A.   Yes, sir.
         Q.   Did you feel that Jeff had the experience, capability to
         eventually do some of these, make some of these changes?
         A.   Yes, sir, I do.
         Q.   Okay.  Was there anything that kept you from continuing to
         use Jeff Anderson for this particular purpose?
         A.   Yes, sir.  He was a full time student, working part time
         at night.
         Q.   And what did he do part time at night?
         A.   I think he worked in a supermarket at that time.  I'm not
         sure.
         Q.   Okay.  So did you, were you interested in finding somebody
         then who could do the job?
         A.   Yes, sir, I was.
         Q.   Okay.  And was there somebody who connected you with
         somebody that did that?
         A.   Yes, sir.
         Q.   Who was that?
         A.   Ralph Markowicz.
         Q.   Okay.  And what's Ralph's relationship to you?
         A.   A friend.
         Q.   Okay.  Was he working with you at all in your computer --
         A.   He was my co-sysop for the bulletin board service.
         Q.   All right.  Now, you used a term we've got to explain.
         Co-sysop?
         A.   Co-sysop, system operator.
                   COURT RECORDER:  How do you spell that?
                   MR. KITCHEN:  S-Y-S-O-P, I believe.
         BY MR. KITCHEN:
         Q.   Some of these terms I daresay you can probably spell them
         however you want to, but in any event, what did he do, co-
         sysop, what was his function?
         A.   He would more or less keep an eye on my files, make sure
         nobody was uploading anything that was any good or
         duplications, answer messages, more or less maintain the
         bulletin board.
         Q.   All right.  Now, you mentioned something here we should
         explain a little bit.  What is a bulletin board?
         A.   A bulletin board is -- well, a BBS is a public, gosh, I
         forgot the name of it.
         Q.   Well, when somebody operates a bulletin board, what do
         they do?
         A.   Well, it allows other people to call in to it through
         their modem, other computers to hook up to this computer.
                   THE COURT:  To call in by computer.
                   THE WITNESS:  Yes, sir.  Through the, across the
         phone line, of course.
         BY MR. KITCHEN:
         Q.   Now, this is open to anybody?
         A.   Yes, sir.
         Q.   They just need your phone number and they can call in?
         A.   Yes, sir.
         Q.   And so they call in and they connect with your bulletin
         board.  What, why would somebody want to do that?  Why would
         somebody want to connect with any bulletin board?
         A.   A lot of them like to write messages, like to stay in
         contact with people.  A lot of people like to get files, so
         there is fresh files on the bulletin board service.
                   THE COURT:  Keep up to date of what's happening?
                   THE WITNESS:  Yes sir.
         BY MR. KITCHEN:
         Q.   Is the kind of programs that were on your disks that you
         were publishing, were they the same programs that were
         available on your bulletin board service?
         A.   Yes, sir.
         Q.   Okay.  Would people contribute programs to a bulletin
         board service?
         A.   Yes, sir.
         Q.   What things they had written themselves?
         A.   Things they had written, and things that they have
         downloaded from other systems.
         Q.   Okay.  And are you acquainted with the term computer
         virus?
         A.   Yes, sir, I am.
         Q.   Okay.  Is that something you have been concerned with in
         operating a bulletin board service?
         A.   Yes, sir.
         Q.   Okay.  How does one, how does computers get viruses?
         A.   It could be a program somebody had written to destroy your
         fat on your hard drive or to format your hard drive, totally
         destroy your system.  They have them now that will even destroy
         your chips.
         Q.   Well, what would keep any nefarious creature from calling
         your bulletin board service and uploading, either wittingly or
         unwittingly, one of these destructive programs or viruses onto
         your bulletin board service and essentially distributing it to
         everybody?
         A.   In them days, not really too much.  Now you do have virus
         protection programs, even when you reboot your computer
         nowadays.  You have a program that will check your system out
         to make sure you haven't got a virus.  You have programs that
         will check the actual program to make sure they aren't on a
         virus.
         Q.   Was this one of the functions of the, your co-sysop?
         A.   Yes, sir.
         Q.   Okay.
         A.   Well, no.  He didn't physically run that file.  My, a
         batch file would run that stuff automatically when my event
         would run.
         Q.   And  how  about  checking for, like copyrighted stuff
         being --
         A.  Copyrighted stuff was also a function of the co-sysop, yes.
         Q.   Okay.  You didn't want copyrighted things on your --
         A.   No, sir, I did not.
         Q.   Okay.  Anyway, Ralph connected you with somebody.  Who did
         he connect you with?
         A.   Larry James.
         Q.   Okay.  And did you, were you already acquainted with Mr.
         James?
         A.   Yes, I was.
         Q.   How did you happen to know him?
         A.   I had met Larry at a WNYTUG meeting.
         Q.   At a WNYTUG meeting?
         A.   I think it was WNYTUG or, well, anyway, the Tandy users
         group meeting.  At that time I belonged to two.
         Q.   Now, is WNYTUG W-N-Y-T-U-G?  I know you're not real good
         with acronyms, but --
         A.   No, I'm not.  All I know is the IBM group that I belonged
         to, that was their name, but his, theirs was a little
         different.  I called it the Tandy users group.
         Q.   Okay.  Tandy users group, okay.  When you say Tandy, we're
         talking about a particular brand of computer?
         A.   Yes.
         Q.   Okay.  Did you have anything more than an acquaintanceship
         with Larry James before Ralph brought him to you?
         A.   No.  I've seen him quite a few times.
         Q.   Okay.
         A.   You know, I've been to his house, he's been to my house.
         Q.   Did, when did you have this meeting?  When did Ralph
         actually connect you and you talk about this whole thing?
         A.   In March of '91.
         Q.   Okay.  And what, what occurred at that meeting?
         A.   I told Ralph I was looking for a programmer and a couple
         days later Ralph got back to me and said he knew --
                   MR. OSTROWSKI:  Objection.
                   MR. KITCHEN:  Okay.
                   THE COURT:  Sustained.
         BY MR. KITCHEN:
         Q.   Well, don't say what Ralph did say, but after your
         conversation with Ralph, what did you do?
         A.   We had a meeting with Larry James.
         Q.   Okay.  And what took place at the meeting?
         A.   We discussed what Larry could do for the retrieval.
         Q.   Okay.  Did you show Larry what you already had?
         A.   Yes, sir, I did.
         Q.   Did you show him the program that you and Jeff Anderson
         had already created?
         A.   Yes, sir, I did.
         Q.   Did you -- what did you tell him then?
         A.   We told him exactly what we wanted the retrieval to do.
                   MR. OSTROWSKI:  Objection.
                   THE COURT:  We is who?  You and Anderson or you and
         Ralph?
                   THE WITNESS:  Me and Ralph.
                   MR. OSTROWSKI:  I object to any conversation of what
         we said.
                   THE COURT:  Well, was Mr. James there or not?
                   THE WITNESS:  Yes, sir, he was.
                   THE COURT:  He may answer.
         BY MR. KITCHEN:
         Q.   Go ahead.  You told him what you wanted?
         A.   We told him exactly what we wanted our program to do.
         Q.   And what did you tell him that you wanted it to do?
         A.   We wanted him to take and hook up this other screen that
         we had into our program, to be able to do our extracting and
         our copying, and that's what we wanted.  And he agreed to do
         it.
         Q.   Okay.  Did Mr. James indicate that he thought he could do
         that?
         A.   He said he could.
         Q.   Okay.  Now, at that first meeting, did Mr. James indicate
         to you that he had already had a program that would do that
         sort of thing?
         A.   No, sir, he did not.
         Q.   Did he make mention of any program called Files Data Base
         Management Program?
         A.   No, sir, he did not.
         Q.   Did he indicate that he had any specific experience with
         CD ROM's?
         A.   No, sir, he did not.  He didn't even have one.
         Q.   How do you know he didn't have one?
         A.   Because that was the work he was going to do for us.
         That's what he wanted.
         Q.   Okay.  He wanted what?
         A.   He wanted a CD ROM drive and some disks.
         Q.   Okay.  And did he, did he get that?
         A.   Yes, sir, he did.
         Q.   Okay.  Now, how long after this meeting did he get the CD
         ROM drive?
         A.   I've got my receipts in my briefcase.  I'm pretty sure it
         was on the second shipment of disks that had to have been, I'd
         say the second week or first week in April.
         Q.   Okay.  Now, back then, what was a CD ROM drive worth,
         approximately?
         A.   Around $565.
         Q.   Okay.  What, did you give him a used one or a new one?
         A.   A new one.
         Q.   Okay.  Were there very many used ones around at that, at
         that time?
         A.   There was remanufactured ones, but these were not
         remanufactured.  These were new.
         Q.   Okay.  All right.  And the program that you had written,
         Night.EXE?
         A.   Yes, sir.
         Q.   With Jeff Anderson --
                   MR. OSTROWSKI:  I object.  The testimony is it's
         written by Jeff Anderson and Mr. Graham.
                   THE COURT:  All right.  Clarify the pronoun.  You
         said you.  You probably mean -- I don't know if mean Mr. Graham
         or Mr. Graham and others.
                   MR. KITCHEN:  I meant  Mr. Graham and Mr. Anderson
         which  would have been --
                   THE COURT:  All right.  Then you just clarified it.
                   MR. KITCHEN:  Right.  It would have been evident had
         Mr. Ostrowski waited for the end of my sentence.
                   THE COURT:  It wasn't evident to Mr. Ostrowski.  He
         wants to protect the record.
         BY MR. KITCHEN:
         Q.   The program, Night.EXE, which you and Mr. Anderson had
         created, is that the one that you showed to Larry James in that
         meeting?
         A.   Yes, sir.
         Q.   Okay.  And what language, programming language, did you
         use to create that program?
         A.   That was Quick Basic.
         Q.   Okay.
                   THE COURT:  Excuse me?
                   THE WITNESS:  Quick Basic.
         BY MR. KITCHEN:
         Q.   Okay.  Now, a little bit about this writing of programs.
         You say there are different languages for the writing of
         programs?
         A.   Yes, sir.
         Q.   Can you give me some names of other languages that are
         used?
         A.   C, C Plus, Assembly, Pascal.
         Q.   And this Quick Basic?
         A.   And Quick Basic, and Basic, and now they call, got a new
         one, Visual Basic.
         Q.   Now, can you write a program in several different
         languages that regardless of the language all accomplishes the
         same thing?
         A.   Well, I can't really answer that.
                   MR. OSTROWSKI:  Your Honor, I'm going to object.
         He's stated that he's not a programmer and --
                   THE WITNESS:  I just answered.
                   MR. OSTROWSKI:  -- this questions his competence as
         an expert to --
                   THE COURT:  Well, all right, or do you mean probably
         that generally, can a program be written, not necessarily can
         Mr. Graham write one.
                   MR. KITCHEN:  Oh.  That is exactly right.
                   THE COURT:  All right.  Rephrase.  Rephrase.
                   MR. OSTROWSKI:  I object to that.
                   THE COURT:  State -- well, let's state the question
         and see if you have an objection.
         BY MR. KITCHEN:
         Q.   Okay.  Can a program be written in more than one language
         and still accomplish the same purpose?
                   MR. OSTROWSKI:  I object.  He stated in this hearing
         that he is not a programmer and he therefore lacks the
         competence to answer that.  It's obviously an expert question.
                   MR. KITCHEN:  Well, I --
                   THE COURT:  Well, maybe not obviously, but at least
         demonstrate to me how Mr. Graham would have this knowledge.  In
         your questioning.  Bring it out from him.
         BY MR. KITCHEN:
         Q.   Have you done any programming at all?
         A.   Some.
         Q.   Okay.
         A.   Lately.  Not then.
         Q.   All right.  What, what kind of programming have you done?
         A.   Well, I now own a CD ROM door.
                   MR. OSTROWSKI:  I'm sorry, Your Honor.  I'm having
         trouble hearing.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   Repeat that.
         A.   I now have a CD ROM door for our bulletin board service.
         Q.   Okay.  And what is a CD ROM door?
         A.   It's a door that will allow you to use our CD ROM on mine.
         Like a lot of bulletin boards cannot use our programs because
         of the way we structure our data base.  Some data bases are --
         some bulletin boards don't use an ASCI text file, they use a
         data base.  It's all scrambled language.
         Q.   Okay.  This required the writing of a program?
         A.   Yes, sir, it did.
         Q.   And did you use one of those programming languages you
         mentioned before to write that program?
         A.   We used C Plus Plus but we also used another person's kit
         that we bought and registered.
         Q.   Okay.  When you say we, you mean yourself and somebody?
         A.   Yes, sir.
         Q.   Okay.  Who was assisting you on that?
         A.   Phil Swanson.
         Q.   Pardon me?
         A.   Phil Swanson.
         Q.   Phil Swanson.  Okay.  Did you participate in the
         programming itself?
         A.   A little.
         Q.   Okay.  Well, you had mentioned that it was you and Jeff
         Anderson that had written the Quick Basic program Night.EXE.
         What, did you do any actual programming in that?
         A.   Yes, sir, I did.
         Q.   Okay.  What did you -- can you give us an example of what
         you might have done?
         A.   I'm the one that put the shell in.
         Q.   You put the shell in?
         A.   I put the shell in.  You hit home key, work exit, exit --
         the execute file went to DOS and did whatever you wanted to do,
         and then type exit, you went back up.  I also created the menu
         for the copy, the abstract, the view and the DOS command.
         Q.   Okay.  And that particular thing that you did required
         actual programming?
         A.   Yes, sir, it did.
         Q.   Can you tell me, let's assume, well, if you're a
         programmer and you are acquainted with a particular language,
         let's say Quick Basic, how do you, how do you write a program?
         A.   Well, first off, myself, I was not a programmer.
         Q.   Okay.
         A.   I looked at a book.  And I have not picked up a book since
         that, so I'm not really saying I'm a programmer.  I don't
         program, that's not my job.
         Q.   Okay.
         A.   My job is --
         Q.   Well, okay.  But in fact, you actually did some
         programming?
         A.   Yes, sir.
         Q.   Okay.  I suppose one may be a mechanic, or not be a
         mechanic but still be able to fix something in their car.
                   MR. OSTROWSKI:  Objection.  Argumentative.
                   THE COURT:  Argumentative?
                   MR. OSTROWSKI:  He's making an argument.
                   THE COURT:  Well, I could say he should ask a
         question rather than testifying.
         BY MR. KITCHEN:
         Q.   The -- what did you do when you wrote that portion in the
         program, Night.EXE, that you and Jeff worked on?
         A.   Well, after I received the program back from Jeff, where
         he got to his point, then that's when I went on with what I had
         to do.
         Q.   Okay.
         A.   Because I knew I needed something, you know, because once
         you -- otherwise, you'd either see just the directories and the
         files and then you'd have to exit to the program and do
         whatever you wanted to do.  I wanted to be able to leave that
         program but after I got through what I was doing at DOS, I
         would be back inside my program.  So I read books.  I bought
         many a books, and I figured out how to do it, and that's what
         I did.
         Q.   Well, now, what did Jeff, what did Jeff give you at that
         point?  You say you, you started working on the program.  What
         did you work on?  I mean, what?
         A.   Well, he gave me his source code.
         Q.   Ah, source code.
         A.   He gave me the source code and --
         Q.   Well, let me stop you a minute, and tell me what --
                   MR. OSTROWSKI:  Objection.  I don't -- I object to
         him stopping his witness.  He's in the middle of an answer.
         I'm writing it down.
                   THE COURT:  All right.  He can withdraw his question
         then and start over, and be sharper in your questioning so
         you'll get just little bits of answers.
                   MR. KITCHEN:  Okay.
                   MR. OSTROWSKI:  But I object because it was frankly
         damaging testimony and I feel that he was interrupting.
                   THE COURT:  He has been interrupted.  Ask a question.
                   MR. KITCHEN:  Well, I'm not sure I can step back.
         All I can do is ask my next question.
                   THE COURT:  Well, you interrupted the answer
         obviously because he was giving you more of an answer than you
         wanted, so I want you to particularize your question so you'll
         get what you want.
                   MR. KITCHEN:  Well, okay.  My particular question to
         him was going to be, what is a source code, and, but obviously
         that's not necessarily going to mean in continuation of his
         previous answer to the previous question --
                   THE COURT:  You don't need a continuation.
                   MR. KITCHEN:  All right.
                   THE COURT:  You're starting over with a new question
         which is going to be even sharper.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   What, what exactly is a source code?
         A.   The source code is the program that they use to write the
         program.
         Q.   Now, you've indicated that Night.EXE has appeared on at
         least one of these disks that you've published?
         A.   Yes, sir.
         Q.   Does the source code go out on that disk?
         A.   No source code goes out on that disk.
         Q.   Okay.
         A.   It's compiled.
         Q.   So, all right.  It's, what was the word?
         A.   Compiled.
         Q.   Compiled.  All right.  What happens to source code --
         well, what happens between source code that's written by the
         programmer and the Night.EXE that's fired up by the user?
         A.   Well, the source code is taken and compiled with a
         compiler and it's taken and makes the EXEX file.
         Q.   What's a compiler?
         A.   It's, you get a compiler with Quick Basic, you get a
         compiler with C.
         Q.   And what do you put into the compiler?
         A.   You put in your source code.  First off a programmer uses
         that when he's doing a source code to run a program many times
         while he's doing it, to make sure it runs.
         Q.   Okay.
         A.   If it doesn't run, then he goes back and corrects the
         problem.
         Q.   All right.  Now, you talk about a compiler like it's a
         thing or a machine, or you know, something like a paper
         shredder.
         A.   It's a program.
         Q.   It's a program.  Okay.  And after you had -- so when you
         worked on this particular program Jeff Anderson and you had
         authored, and you made those changes, you made changes to what,
         the source code?
         A.   I made changes in the source code.
         Q.   All right.  And then you would have compiled the source
         code?
         A.   Then I compiled the source code to get my Night.EXE.
         Q.   Okay.  And did it work?
         A.   Yes, sir, it did.
         Q.   Okay.  Is that the ultimate test?
         A.   It's on the CD ROM.
         Q.   Well, are some programming languages preferable to other
         programming languages?
         A.   Yes, sir.  Some are slower.  Some are memory hogs.  Some
         are fasters.
         Q.   Memory hogs?
         A.   Yes.
         Q.   Meaning?
         A.   Quick Basic is a memory hog.  It's not very efficient with
         memory.  Let's use that term.
                   THE COURT:  I can't get that --
                   THE WITNESS:  It's not very efficient.
                   THE COURT:  No.  Memory what?
                   THE WITNESS:  It's a memory --
                   MR. KITCHEN:  Hog.
                   THE COURT:  H-O-G?
                   THE WITNESS:  Yes, sir.
         BY MR. KITCHEN:
         Q.   You mean it just takes up too much room in memory?
         A.   Takes up too much memory, yes.  You can do less with it.
         Q.   Okay.
         A.   It was never meant to compile large execute files with
         Quick Basic.
         Q.   Well, back there in 1991 were you aware by reputation of
         other programs that might have been more efficient than your
         Quick Basic?
         A.   Was I aware of any programs back then?
         Q.   Yes.  Yes.  Well, when I say aware of, I'm not talking
         about a working --
                   MR. OSTROWSKI:  I object on the grounds of hearsay.
                   THE COURT:  Just rephrase the question.
         BY MR. KITCHEN:
         Q.   Did you believe that there were other programs that would
         operate more efficiently than Quick Basic?
                   MR. OSTROWSKI:  I object on the grounds that he's not
         qualified to render an opinion.
                   THE COURT:  I'll let him answer.  You may answer.
                   THE WITNESS:  What was the question?
         BY MR. KITCHEN:
         Q.   Were you -- did you believe that there were other
         programming languages that would have been more efficient than
         Quick Basic?
         A.   Oh, yes.  I've heard so much about C.  I mean, we get
         literature all the time about C, but I didn't know anything
         about it myself.
         Q.   Well, in any event, when you, when you had this meeting
         with Larry James and you gave him the program you and Jeff
         Anderson had worked on and explained to him what you wanted
         done, did you, did he indicate that he was going to use any
         particular language in making these improvements to the
         program?
         A.   Yes.  He was going to use Quick Basic.
         Q.   Okay.  And did he indicate that he was able to do this, or
         adept at this?
         A.   Yes, sir, he said he could do it.
         Q.   Okay.  Did he indicate to you what he did for a living?
         A.   He didn't have to.  I knew.
         Q.   Okay.  And what did he do for a living?
         A.   He was a taxicab driver.
         Q.   Okay.  Did he indicate when he was going to, or how he was
         going to do this programming for you?
         A.   I really didn't question him on it.
         Q.   Okay.
         A.   On how he was going to do it.  I knew he had equipment.
         Q.   All right.  And how long did it take him to accomplish
         this task?
         A.   I'd say it's about a month, month and a half.  He started
         in March.  We didn't get out with release until April.  If I'm
         not mistaken I think it was April 27th of 1991.  I'm not, it's
         on the disk.  I'm not really positive.
         Q.   And the, the final product that he produced for you, did
         it do everything you wanted it to do?
         A.   Yes, sir.
         Q.   Okay.  Did it look essentially similar to what you had,
         and Jeff Anderson had produced?
         A.   Basically.
         Q.   Okay.  And did you publish it in one of your CD ROM's?
         A.   Yes, sir, I did.
         Q.   Which one?
         A.   The powder blue one, PDSI-004.
         Q.   Okay.  Showing you Plaintiff's Exhibit 5, is that the
         PDSI-004 to which you referred?
         A.   Yes, sir, it is.
         Q.   Okay.  And did you plan any further improvements to the
         Night.EXE program?
         A.   Yes, sir, we did.
         Q.   And by the way --
                   THE COURT:  Who is we at this point?
                   THE WITNESS:  Larry James.
                   THE COURT:  And you?
                   THE WITNESS:  Yes, sir.
         BY MR. KITCHEN:
         Q.   Now, and were you still calling the program, by the way,
         Night.EXE?
         A.   Yes, sir, we were.
         Q.   Okay.  Did you, you didn't come out with any like versions
         or numbers or anything regarding the Night.EXE, did you, as
         each one was --
         A.   No, sir.  We didn't assign that.  We assigned versions
         when Larry first started it.
         Q.   Now, how did it come up that you would make any changes or
         improvements to Night.EXE that you received, or that he worked
         on in exchange for the computer, or for the CD ROM drive?
         A.   Well, we had no intention upgrading this verse because
         right away about two weeks after the --
                   THE COURT: Wait wait, you pointed to something and
         for the record just say what you stick on it.
                   THE WITNESS:  NOPV-4.  Because two weeks later --
                   THE COURT:  But you got a little sticker on there.
                   THE WITNESS:  Plaintiff Exhibit 5.
                   THE COURT:  Thank you.
                   THE WITNESS:  He had mentioned two weeks after we
         published this disk that he learned how to program in C Plus,
         so naturally --
         BY MR. KITCHEN:
         Q.   C Plus being one of those programming languages?
         A.   Yes, sir.
         Q.   Okay.  Why was that of interest to you?
         A.   Well, because he kept mentioning he had memory problems
         with Quick Basic.  You know, we did have a lot of problems with
         even the program that is on this physical disk.
         Q.   Okay.  And so, did you have further discussion as to what
         was going to be done?
         A.   Yes, sir, we did.
         Q.   Okay.  Who said what to whom?
         A.   He would take and rewrite the retrieval in C Plus.
         Q.   Okay.  Would it have the same screens?
         A.   The identical screens.
         Q.   Okay.  Would it have the same functions?
         A.   Identical functions.
         Q.   Would you be punching the same keys to accomplish the same
         things?
         A.   Same keys.
         Q.   Okay.  And would it have the same name?
         A.   Same name.
         Q.   As a matter of fact, was there, would there be any
         difference between a user using the one that was done in Quick
         Basic and the one that was done in C or C Plus, was there any
         difference from the user's standpoint?
         A.   If they had a slow CD ROM, no, sir, no difference.
         Q.   Okay.
         A.   If they had a faster CD ROM, yes, they would know a
         difference.
         Q.   Okay.  What would they notice?
         A.   The speed.  It was, C Plus was definitely faster.
         Q.   Okay.  So you told him that you would utilize him for this
         translating from one language to another?
         A.   Yes, sir, I did.
         Q.   Okay.  And was there some talk about what the remuneration
         would be for that?
         A.   Yes, sir.
         Q.   And what was the agreement?
         A.   Well, there wasn't no set agreement on exactly how much he
         -- he said when he got to a point we gave him $200.  When he
         got to this point he got another $200 and that's how it was
         paid.
         Q.   Well, at what point was he moneywise when he finally --
         A.   Well, then moneywise when it started steady is when he
         came to my place of employment.
         Q.   Okay.  About how long did it take him to translate this
         Quick Basic program into a C program?
         A.   I can't honestly answer that.
         Q.   Okay.  You don't actually recall it?
         A.   I don't actually recall when he finished --
                   THE COURT:  Approximately.  Can you recall
         approximately?
                   THE WITNESS:  I'd say a month and a half.
         BY MR. KITCHEN:
         Q.   Now, when you were programming with Jeff Anderson in Quick
         Basic, is Quick Basic a commercial program?
         A.   Yes, sir.
         Q.   And you've got to buy that from somebody?
         A.   Yes, sir.
         Q.   And once you buy it you can, you can use it --
         A.   You can use it.
         Q.   -- as much as you want to?
         A.   Yes, sir.
         Q.   Okay.
                   THE COURT:  You can use it and resell it?
                   THE WITNESS:  If advice and agreement stated you
         could, you could transfer it, but I don't know.
                   THE COURT:  All right.  Go ahead.
         BY MR. KITCHEN:
         Q.   Well, you could sell a program -- you could sell a program
         that you made with Quick Basic?
         A.   Compiled it, yes.
         Q.   Okay.  Now, how about C, is that, is that a language that
         belongs to a particular company?
         A.   Borlyn.
         Q.   Borlyn.  And what, Borlyn publishes the language and the
         compiler and all that sort of thing?
         A.   Yes, sir.
         Q.   Okay.
         A.   It's a commercial package.
         Q.   Does that come like with a manual and tells you how to use
         it and all that?
         A.   Yes, sir, it does.
         Q.   All right.  And you can write programs with the C and
         whatever you write you could sell, right?
         A.   Yes, sir.
         Q.   Okay.  Well, did, when Larry said that he was acquainted
         with or knew or had learned the C language, did he indicate
         that he owned a C, a Borlyn C programming language program?
         A.   No, sir, he didn't own one.
         Q.   Okay.  So what did you do?
         A.   I went and bought one.
         Q.   Okay.  And about how much do they go for?
         A.   Oboy, I think it was $320, somewhere around there.
         Q.   Okay.  And did, this was registered --
         A.   To the business, yes.
         Q.   Okay.  So it was registered in your name, your business?
         A.   To my name, yes.  Well, to Night Owl's.
         Q.   Okay.  And then did you give the program to  him to use?
         A.   Yes, sir, I did.
         Q.   Okay.  In about a month and a half he came up with this
         program that was done in C, right?
         A.   Yes, sir.
         Q.   And did it in fact look the same as we've discussed
         before?
         A.   Yes, sir.
         Q.   All right.  And acted the same as well?
         A.   Yes, sir.
         Q.   Okay.  Did it have any bugs or problems with it?
         A.   Yes, sir.
         Q.   What was the bug, the problem?
         A.   No monochrome monitor support.
         Q.   Now --
                   THE COURT:  No monitor --
                   THE WITNESS:  Monochrome monitor support.
         BY MR. KITCHEN:
         Q.   Now, the term support is used a lot around computers and
         what do you mean when you said it had no monochrome monitor
         support?
         A.   Well, he had color support in, but he didn't have
         monochrome.  Usually black and white usually is a normal color.
         So we should have had that kind of support in it no matter if
         he knew how to program or not.
         Q.   Did you publish that particular version on a disk?
         A.   Yes, sir, I did.
         Q.   Which disk was that?
         A.   PDSI-004-1.
         Q.   I'm showing you Plaintiff's Exhibit 6.
         A.   That's not it.
                   THE COURT:  Incidentally, when you, Mr. Kitchen, hit
         some appropriate point, we'll take a recess, but we'll leave it
         up to you.
                   THE WITNESS:  Yes, sir.  That's the disk, Exhibit
         number 7.
         BY MR. KITCHEN:
         Q.   Okay.  So Plaintiff's Exhibit 7 then appears to be the
         particular PDSI-004-1?
         A.   Yes, sir.
         Q.   That can --
                   THE COURT:  Not 6.  You had said 6 at first.
                   THE WITNESS:  Right.  That -- right, it's the
         Plaintiff's Exhibit number 7.
                   THE COURT:  7.
         BY MR. KITCHEN:
         Q.   Okay.  Anyway, that has the one.  Now, when a user buys
         this thing, and they have a color monitor, you said the color
         was supported?
         A.   Yes, sir.
         Q.   So it would work fine for them?
         A.   Yes, sir.  No problem.
         Q.   What if a person bought one of these disks but their
         computer had just a monochrome monitor?
         A.   He wouldn't see nothing.  You wouldn't see the retrieval.
         Q.   Okay.  So what did you have to do?
         A.   I had to recut the disk.
         Q.   And --
                   THE COURT:  Had to what?
                   THE WITNESS:  Recut the disk, remanufacture it.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  Remaster it.
                   MR. KITCHEN:  Now, I --
                   THE COURT:  So someone with a monochrome monitor
         could use it?
                   THE WITNESS:  Yes, sir.  Because back then 95% of
         your population used monochrome.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  Or regular CGA.
         BY MR. KITCHEN:
         Q.   Now, let me ask you something, too, because we're into
         this.  We've, we have these various Exhibits, 1 through 7, that
         we've got in front of you, and they're these little CD's that
         look like music CD's in these plastic cases.  Where do they
         come from?
         A.   They come from the manufacturer.
         Q.   And who's that?
         A.   Nimbus.
         Q.   Okay.  Where are they located?
         A.   Rupertsville, Virginia.
         Q.   And how do they -- well, what's your relationship to them,
         and how do you get them to produce these?
         A.   They are my manufacturer.  What I do is, I take and back
         up all this material from my hard drive to my EXE-BYTE system,
         which is a 600 meg -- I'm sorry, a 1.2 megabyte tape back-up,
         8 millimeter tape.  I take and do the OS9660 format ourselves
         in-house.  We send this tape to them and they run our master.
         Then they take in the master and duplicate the disk.
         Q.   Okay.  How many do you typically get done at a time?
         A.   Now or then?
         Q.   Then?
         A.   Then, 400, 500.
         Q.   Okay.  And --
                   THE COURT:  Compact disks?
                   THE WITNESS:  Compact disks, yes, sir.
         BY MR. KITCHEN:
         Q.   And then they, they ship them all to you in a box?
         A.   Yes, sir.
         Q.   Okay.  So when you had to recut the thing, you essentially
         had to send -- change it and send another order down to Nimbus?
         A.   Well, we didn't catch it right away.
         Q.   Well, how did you, how did you catch it?
         A.   I caught it by some customers calling us back asking us
         what the problem was.
         Q.   Okay.
         A.   And we didn't know.  And so finally when we did find out,
         we had already ordered three shipments on this disk.  So we had
         to take and recut the disk and I think it was close to a month
         later that that disk was cut.
         Q.   Okay.  Now, what time frame are we talking about when
         this, when this occurred, when the bug occurred and then was
         corrected and you had to order new things?  When, approximately
         when was this?
         A.   I can't even give you any date on that.
                   THE COURT:  Approximately?
                   THE WITNESS:  Let's see, if this was cut in April
                   THE COURT:  Of?
                   MR. KITCHEN:  '90 -- '91.
                   THE WITNESS:  This was cut in '91, I know the year.
                   THE COURT:  April of '91 about?
                   THE WITNESS:  No, no, no.  4 was cut in April of '91.
         The 4-1 was cut, I'd say somewhere in June, possibly.
         BY MR. KITCHEN:
         Q.   And by the way, how would you market these CD ROM's?
         A.   I would sell them to distributors.
         Q.   How many at a time?
         A.   100, 200.
         Q.   What did they ultimately retail for?
         A.   Now or then?
         Q.   Then?
         A.   Then was $159.
         Q.   Okay.  What do they retail for now?
         A.   $39.
         Q.   Okay.  Did there come a time when you were ready to change
         that Night.EXE version again?
                   THE COURT:  Is this a good point to break?
                   MR. KITCHEN:  Yes.
                   THE COURT:  All right.  We'll take a recess, about 10
         minutes.
              (Recess taken)
                   THE COURT:  On the record.
         BY MR. KITCHEN:
         Q.   Okay, Mr. Graham.  We were talking at some point before
         the break about differences between the Night.EXE program that
         was written in C versus the previous one that was written in
         Quick Basic, and you pointed out that one of the differences,
         at least initially, was this failure to support the monochrome
         monitor?
         A.   Yes.
         Q.   Were there any other differences?
         A.   Well, yes.  There was things left out that was in the
         Quick Basic code that were not put into C Plus.
         Q.   Such as?
         A.   Such as, it also had a color, where you could set your
         colors, change your screen colorization.  It also when you hit
         a directory and you went into it would count the number of
         files in that directory.  So there was a couple of things even
         totally left out of the Quick Basic code -- or out of the C
         that was in the Quick.
         Q.   Now, these weren't fatal to it, right?
         A.   No.
         Q.   Okay.  Now, what was your arrangement with Mr. James
         regarding the translation of this program into C?  What, what
         did you really give him for this work?
         A.   Well, he really didn't ask for anything at first, and I
         just felt that I, you know, I wanted at least --
                   THE COURT:  Did you give him anything?
                   THE WITNESS:  Yes, sir, I did.
                   THE COURT:  What did you give him?
                   THE WITNESS:  I gave him I think it was $200 or --
         no, $200 a month.
         BY MR. KITCHEN:
         Q.   Let me show you Plaintiff's Exhibit 12.  Now, that appears
         to be five checks.  Can you tell us, you've seen those before?
         A.   Yes, sir.
         Q.   Are they checks written on your account?
         A.   Yes, sir.
         Q.   And were they actually written by you?
         A.   Yes, sir.
         Q.   And who were they written to?
         A.   Larry James.
         Q.   Okay.  And looking at those, can you tell us specifically
         what payments that you made to him?
         A.   I made on July 18th for $200.
                   THE COURT:  18th?
                   THE WITNESS:  18th of July.  I made one August 11th,
         1992 for $200.  And this is where he started at the, at the
         premises.
                   THE COURT:  Answer the question.
                   THE WITNESS:  Then one at 9/13/91 for $250, 9/20/91,
         $250, 9/6/91, $250.
         BY MR. KITCHEN:
         Q.   When you started paying him the $200, did you have any
         kind of understanding as to how you were going to compensate
         him?
         A.   No, sir.
         Q.   Did you eventually discuss that?
         A.   No, sir.
         Q.   Okay.  Well, did you have any understanding at all with
         him as to, as to how much he was going to get?
         A.   No, sir.  Not on the C.
         Q.   Well, with regard to anything, other than the --
         A.   Well, that was already paid for.
         Q.   Oh, okay.  The Quick Basic one?
         A.   Quick Basic was taken care of.
         Q.   All right.
                   THE COURT:  Had it been understood that you were
         going to pay him something for his work?
                   THE WITNESS:  I did pay him something, sir.
                   THE COURT:  Had it been your arrangement at the
         outset that you were going to pay him something for his work?
                   THE WITNESS:  On which code, the Quick Basic or the
         C Plus?
                   THE COURT:  At the outset of your work with him.
                   THE WITNESS:  Oh, yes.  The understanding was when he
         came to work he would get X amount of dollars a week.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   And when was that?
                   THE COURT:  Excuse me.  When he came to work.  Now,
         this is leaving the taxi business and coming to work for you,
         or doing this work on the side?
                   THE WITNESS:  He was doing this work in my home, yes.
                   THE COURT:  Oh, I see.
         BY MR. KITCHEN:
         Q.   Okay.  And when did that occur?
         A.   That started approximately September.
         Q.   Of 1991?
         A.   '91.
         Q.   Okay.  And what was, what were you to pay him at that
         point?
         A.   That was $250 a week.
         Q.   Okay.  And how many hours was he supposed to work for --
         A.   There was no real set schedule of hours.
         Q.   Okay.
         A.   Four or five hours a day.
         Q.   Okay.  When -- what stage was the C programming or
         translation in when he started working full time, or rather
         when he started --
         A.   When he started at the house?
         Q.   Yeah.  By, let's say the 1st of September?
         A.   We were at a different stage at that time.
         Q.   What stage?
         A.   Well, we wanted to add more things, but it never got done.
         Q.   Okay.  Now, during all of this, did there ever arise any
         discussion about the copyright notice that was on the Night.EXE
         program?
         A.   Yes, sir, there was.
         Q.   And when did these discussions first come up?
         A.   I'd say it started in July.
         Q.   Okay.  And --
                   THE COURT:  '91?
                   THE WITNESS:  In July of 1991.
         BY MR. KITCHEN:
         Q.   And what was the substance of those discussions?
         A.   It was how --
         Q.   How did they -- how did it come up actually?
         A.   Well, I finally seen the screens.  I don't pay attention
         to what --
                   THE COURT:  Wait a minute.  Now, wait a minute.
                   THE WITNESS:  I --
                   THE COURT:  What were you asked?
                   THE WITNESS:  How did it come about.
                   THE COURT:  How they came about?
                   MR. KITCHEN:  Yes, Your Honor.  Yes.
                   THE COURT:  Oh, I see.  I missed the question.  Go
         ahead.
                   THE WITNESS:  I, you know, I don't look and check
         people's work out.  I trust them.  So all of a sudden it was
         approached to me by a couple of my dealers, well, who owns your
         corporation or your business, Larry James or yourself.  I says,
         well, what do you mean.  And that's when this all come up.  I
         finally looked at my disk and I seen exactly what they were
         talking about.  The copyright screens were by Larry James.
         BY MR. KITCHEN:
         Q.   Okay.  Showing you Plaintiff's Exhibit 9, can you describe
         what that is?
         A.   Yes, sir, I can.
         Q.   Okay.  What is it?
         A.   It's my PDSI-002 menuing system.
         Q.   Well, okay.  But what you're actually holding, of course,
         is a bunch of 8-1/2 by 11 pieces of --
                   MR. OSTROWSKI:  Objection, Your Honor.
                   THE COURT:  What is it you're actually holding?
                   MR. KITCHEN:  Your Honor, I'm --
                   THE COURT:  Just say, what is it you're actually
         holding, instead of telling him what he's holding.
                   MR. KITCHEN:  All right.
         BY MR. KITCHEN:
         Q.   What are you actually holding?
         A.   Well, actually a picture of my retrieval.
         Q.   Okay.  But it's on what?
         A.   On paper.
         Q.   On paper.  More -- just one sheet of paper or several
         sheets of paper?
         A.   Several.
         Q.   Okay.  Are they stapled in the corner?
         A.   Yes, sir.
         Q.   Okay.  And how, how was that prepared?
         A.   That was prepared by myself.
         Q.   Okay.  And how did you, how did you make that?
         A.   Well, I signed each directory, directory 1,
         communications, with a file called 001.
         Q.   No, no.  How did you make these pieces of paper?
         A.   Oh.  I printed them to my printer.
         Q.   Okay.  How does what we see on the piece of paper relate
         to your program, Night.EXE?
         A.   That's exactly what it looks like when you pull it up.
         Q.   When you --
         A.   When you type Night --
                   THE COURT:  That's what would show up on the screen?
                   THE WITNESS:  That's what would show up on the
         screen.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  Well, first off, my copyright would
         come up.
         BY MR. KITCHEN:
         Q.   Okay.  Now, this was from which program, which version?
         A.   PDSI-003 -- 2.
         Q.   Okay.  And you testified earlier, which program was on
         that particular disk?
         A.   Yes, sir.
         Q.   Whose, whose program was on that disk?
         A.   Me and Jeff's.
         Q.   Okay.  So, and that was published before Larry James even
         got into the picture?
         A.   That was published in 1990.
         Q.   Okay.  And looking on, I think it's about the second page
         or so, is there a copyright notice or anything?
         A.   On the second page?
         Q.   Or third page, I'm not sure.  It's one of them pages?
         A.   Yes, sir, on the third page.
         Q.   All right.  What did you, what did you have for a
         copyright notice?
         A.   Copyright C Night Owl's Computer Service, written by
         Richard Graham.
         Q.   Okay.  Let me show you Plaintiff's 10.  Now, do you
         recognize that?
         A.   Yes, sir, I do.
         Q.   Okay.  What is it?
         A.   This is PDSI-004, done in Quick Basic.
         Q.   Okay.  But that also is a bunch of 8-1/2 by 11 papers,
         right?
         A.   Yes, sir.
         Q.   Okay.  Was that prepared in a similar fashion?
         A.   Same way I did with the PDSI-002.
         Q.   All right.  But this is from 004, right?
         A.   Yes, sir.
         Q.   Okay.  So which program was on this one?
         A.   This was --
         Q.   Was on 004?
         A.   This was PDS -- oh, this was the code that we had hired
         Larry to write, add to our program.
         Q.   Okay.  And looking at the second or third page there, is
         there a copyright notice?
         A.   Second page.  Night Owl's Communication and CD ROM
         Publisher, copyrighted April 16th, 1991 by Larry James and
         Richard Graham.  Written by Larry James, collaborated with
         Richard Graham.
         Q.   Okay.
         A.   Then it has, to the magic of unique proper.  That was a
         screen that was moving all the time.
         Q.   Now, you had already -- and this was the one that was done
         in Quick Basic?
         A.   Quick Basic, yes, sir.
         Q.   Now, you already testified that, of course, you had told
         him what you wanted this Quick Basic to do and everything.  Did
         you, did you discuss at all what was going to be on the
         copyright notice that appeared on the screen?
         A.   Yes, sir, I did.
         Q.   Okay.  And did you tell him what you wanted it to say?
         A.   Yes, sir.
         Q.   What did you tell him you wanted it to say?
         A.   Copyrighted by Night Owl Computer Service, written by
         Larry James.
         Q.   Okay.  And is that, is that consistent with what you
         wanted on there?
         A.   No, sir.
         Q.   And this is the one that came out when?
         A.   This come out April 27th, 1991.
         Q.   All right.  And you indicated that you weren't aware, or
         you didn't have any discussion about this thing until July?
                   THE COURT:  Wait a minute.  Don't -- just ask a
         question.
                   MR. KITCHEN:  All right.
         BY MR. KITCHEN:
         Q.   When did you first have the discussion about this?
         A.   Oh, about the copyright thing?
         Q.   Right.
         A.   That I didn't notice.
         Q.   Okay.
         A.   Like I said, I don't look at the programs.
                   MR. OSTROWSKI:  I object.  It's not responsive, Your
         Honor.
                   THE COURT:  So what do you want done?
                   MR. OSTROWSKI:  Strike it.
                   THE COURT:  Well, without a jury, it would maybe stay
         in the record.
         BY MR. KITCHEN:
         Q.   When did you, when did you first notice it then?
         A.   About May or June.
                   THE COURT:  Of?
                   THE WITNESS:  1991.
         BY MR. KITCHEN:
         Q.   And when did you then first have a discussion with Larry
         about the content of that notice?
         A.   Well, I was really watching the C code.  I really didn't
         say too much to Larry.  I told him I didn't want it in there,
         and he said he would correct it, and it's never been.
                   MR. OSTROWSKI:  I object.
                   THE COURT:  Excuse me.  When was this?
         BY MR. KITCHEN:
         Q.   What, when was this?
         A.   1991.
                   THE COURT:  When?
                   THE WITNESS:  June.
                   MR. OSTROWSKI:  I object to that, Your Honor.  It's
         not responsive.
                   THE COURT:  It may stay.
         BY MR. KITCHEN:
         Q.   Well, now, when this first came to your attention, had
         Larry already started on the C translation?
         A.   What was the question?
         Q.   I'm sorry.  When --
         A.   I'm waiting for you to finish.
         Q.   When you first became aware of this, this, the content of
         the copyright notice on the Quick Basic version, was Larry
         already working on the translation to C?
         A.   Yes, sir.
         Q.   Well, was it -- so it wasn't your intention then to
         republish this Quick Basic version again, right?
         A.   Not really, no.
         Q.   Okay.  All right.  So your discussion then was, was about
         what?  Can you tell us?
         A.   It was about the Compuserve number and copyrighted by
         Larry James.
         Q.   All right.  When the discussion started, did you then seek
         to find out what was going to be on the copyright notice in the
         C version?
         A.   I really didn't have access to that until he come to my
         house.
         Q.   Okay.  And, and then did you have a discussion -- well,
         did he show it to you at some point?
         A.   Yes, because I seen it on my own computers.
         Q.   And then did you have a discussion about it?
         A.   Yes, I did.
         Q.   Okay.  Showing you Plaintiff's 11 -- now, to shorten this
         a little, is this also another printout of the screens?
         A.   Yes, sir, it is.
         Q.   But what version is this?
         A.   That is PDSI-004-1.
         Q.   Okay.  And which, and which Night.EXE program would have
         been on this?
         A.   That was the C source code and it was done roughly in
         June.
         Q.   Okay.  Now, is there a copyright notice in that bunch of
         papers that's --
         A.   Yes, sir, it is.
         Q.   Okay.  Can you find that?
         A.   Copyrighted 1991 by Larry James for Night Owl Computer CD
         ROM Publisher, all rights reserved, written by Larry James,
         Compuserve ID 72667-3642.  Normal exit.
         Q.   All right.  Now, was his Compuserve number in the previous
         version, notice?
         A.   The Quick Basic code, sir?
         Q.   Right.
         A.   You want me to go by mine, or can I look?
         Q.   No.  Take a look.  Let's see.
         A.   No, sir, it was not.
         Q.   Okay.  All right.  So you had -- now, looking at 11, when
         you became aware of what was on the screen on the PDSI-004-1
         which we have printed out, number 11, Plaintiff's 11, what was
         the substance of your discussion with him?
         A.   To have it removed.
         Q.   Okay.  Well, did you, did you elaborate, did you tell him
         what your objection was to it or why?
         A.   Yes, sir, I did.
         Q.   Okay.  What did you say to him?
         A.   I asked him to have it put the way I wanted it,
         copyrighted by Night Owl Computer Service, written by Larry
         James, without the Compuserve number.
         Q.   What did he say?
         A.   He said, no way, that's my signature.
         Q.   Did he, did he explain what he meant by his signature?
         A.   Well, I took it for granted it's an address on --
                   MR. OSTROWSKI:  Objection.
                   THE COURT:  Wait a minute.  Did he say?
                   THE WITNESS:  Pardon?
                   THE COURT:  Did he say?
                   THE WITNESS:  Oh, no, sir.  He didn't say nothing.
         BY MR. KITCHEN:
         Q.   Did, did he say what he, did he say what he, why he had
         this Compuserve number in there?
         A.   No.
         Q.   Okay.  Well, how long a discussion did you have?
         A.   Oh, I'd say about, actually from that day forward until
         the end.
                   THE COURT:  No, but on that particular day, how long?
                   THE WITNESS:  On that particular day, I think that
         day he left mad.  He didn't come back till the next day.
                   THE COURT:  How long had it been before he left mad?
                   THE WITNESS:  About an hour.
         BY MR. KITCHEN:
         Q.   And approximately when was that?
                   THE COURT:  What time of day?
         BY MR. KITCHEN:
         Q.   No, no.  When, what date was that discussion,
         approximately?
         A.   Well, we had quite a few before he actually --
                   THE COURT:  Well, but this was that first one, in
         June, you said.
                   THE WITNESS:  Oh, the first one in June.  Then he
         went to Ralph Markowicz and wanted to sell the retrieval to
         him.
                   MR. OSTROWSKI:  Objection.  Not responsive.
                   MR. KITCHEN:  Well, all right.
         BY MR. KITCHEN:
         Q.   All right.  I think you said in June was this first
         discussion?
         A.   Yes.
         Q.   All right.  And you said it came up then continually after
         that?
         A.   Yes, sir, it did.
         Q.   About how often did the subject come up?
         A.   Almost every other day.
         Q.   Okay.
                   THE COURT:  Almost every what?
                   THE WITNESS:  Every other day.
                   THE COURT:  Every other day.
                   THE WITNESS:  Yes, sir.
         BY MR. KITCHEN:
         Q.   Well, now, what was the substance of these discussions?
         Was it simply you saying you wanted out and he said, I won't,
         or --
         A.   I just told him I, you know, I paid for the product.  I
         believe the code was mine.  And that's what I believed I
         deserved.  I believed to have the copyright in it.  I believe
         he was the writer.  That's what he deserved.  I don't mind
         giving him credit.
         Q.   Did he -- now, when you say credit, what did you mean?
         A.   Credits I meant by, written by Larry James.
         Q.   But you still considered that you had owned the copyright?
         A.   I still believe I had the copyright, yes.
         Q.   And what did, what was Larry's position in these
         discussions?
         A.   He never said.  He didn't say, no, I didn't.
         Q.   He didn't say, no, what?
         A.   He didn't say I didn't own the copyright.  I asked him, is
         it my source.  Yes, sir, it is.
         Q.   Now, did there come a time when your relationship with
         Larry James let's say came to an end?
         A.   Yes, sir, it did.
         Q.   And approximately when was that?
         A.   September 24th.
         Q.   Okay.
                   THE COURT:  Of?
                   THE WITNESS:  1991.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   Now what precipitated that final break-up?
         A.   The same thing.  He would not change the screen.  I
         couldn't use it.
         Q.   Were you about to publish another CD ROM?
         A.   Yes, sir, we were.
         Q.   And had you had any kind of effort to compromise the --
         A.   Yes, sir.
         Q.   -- the language that went in there?
         A.   Yes, sir.
         Q.   Well, at that latter stage of the relationship, what were
         you insisting on at that point?
         A.   I was just insisting he remove the Compuserve number and
         remove the copyrighted by Larry James.
         Q.   Okay.  And had he changed at all in his position?
         A.   Yes, sir, he did, except one final code he sent us to our
         bulletin board, he did take it out, and I was surprised.  I
         says, great.  Then I found it show up again in the F-1 key, and
         I could not use the code.
         Q.   Okay.  Now, I'm going to have to try and clarify this a
         little bit.  When somebody uses Night.EXE the way he had
         written it originally when he translated it from C, does a user
         see the copyright notice at all?
         A.   Not if you hide it.
         Q.   Well, no, no, no.  But, I mean when a normal user uses
         PDSI-004 or --
         A.   Yes, sir, they see it.
         Q.   All right.  And where do they see it, how do they see it?
         A.   They seen it on the front.
                   THE COURT:  Of what?
                   THE WITNESS:  Then on, on the Quick Basic it was on
         the front of the disk.
                   MR. KITCHEN:  All right.  Wait a minute.  That's what
         I mean.
         BY MR. KITCHEN:
         Q.   You say it's on the front of the disk.  You don't mean --
         A.   On the front of the retrieval.
         Q.   Okay.  And by front, you mean?
         A.   The opening screen.
         Q.   All right.  So when a person starts Night.EXE there's an
         opening screen that comes up?
         A.   Yes, sir.
         Q.   What does the -- and the opening screen has this copyright
         notice on it?
         A.   Has the copyright notice for that particular disk, yes.
         Q.   All right.  And so, and that was the way he did it also
         when he translated it to C?
         A.   No, sir, it is not.
         Q.   Okay.  Well, what did he do when he translated it to C,
         and I'm talking about his first translation?
         A.   When he transferred it from C he went to the rear.  When
         you exit the program, that's when you would see the copyright
         notice.
         Q.   Okay.  So it would be on the final screen?
         A.   The final screen.
         Q.   Okay.  And then you said he finally changed his position
         somewhat near the end of the relationship in the end of
         September, and he put it on the F-1 key I think was the term
         you used?
         A.   Was the help key, yes.
         Q.   All right.  What does that mean?
         A.   F-1 is like if you're, if you want to find out what
         program, how to use our program, otherwise to go down over a
         file, to be able to extract it, view it or whatever the
         commands are up inside there and it tells you what them
         commands do.  So instead of putting it on his closing screen he
         tucked it inside the F-1 way at the, way at the end.  So --
         Q.   Is, is the F-1 key also termed the help key?
         A.   Yes, sir.
                   THE COURT:  What key?
                   THE WITNESS:  F-1.
                   MR. KITCHEN:   The F-1 key is also termed the help
         key.
                   THE COURT:  Help.
                   MR. KITCHEN:  Key.
                   THE COURT:  H-E-L-P.
                   MR. KITCHEN:  H-E-L-P.
         BY MR. KITCHEN:
         Q.   Do other programs have help keys?
         A.   Yes, sir, they do.
         Q.   And what do they usually use for the help key?
         A.   F-1.
         Q.   Okay.  And when you're talking about the F-1 key, you mean
         that, that F-1 that says on it --
         A.   Far left corner key, except not escape.
         Q.   Right.  There's usually a row of keys on a computer
         keyboard?
         A.   Yes.
         Q.   Okay.
         A.   F-1, 2, 3, 4, 5.
         Q.   All right.  So now if a person didn't need any help they
         might not see the computer -- or the copyright notice, right?
         A.   Yes, sir.
         Q.   Okay.  But if they did?
         A.   They'd see it.
         Q.   Okay.  And he didn't change -- did he change the content
         of the copyright at all?
         A.   No, sir.
         Q.   Okay.  So it still had the objectionable wording in it?
         A.   Yes, sir.
         Q.   All right.  Now, after he left, what did you do?
         A.   After he left, I was trying to find another programmer to
         fix the program.
         Q.   Okay.  Now, when you say fix the program, after he left
         were you left with a working program?
         A.   No, sir, I was not.
         Q.   Okay.  What, what did you have on your computer?
         A.   I had nothing.
         Q.   You had nothing at all related to any of the programs that
         he worked on?
         A.   Well, first off, I had no computer to boot.  It would not
         fire up.  He had taken and redone my hard drives.
         Q.   Now, let me ask you.  In your office or where your
         business is, how many computers do you have there?
         A.   At that time I had three.
         Q.   Okay.  And was there one that was used mostly by Larry for
         the --
         A.   Yes, sir.
         Q.   -- programming?  Okay.  And did that have the Borlyn C
         Plus Plus on it?
         A.   Yes, sir.
         Q.   Okay.  How long had he been utilizing that particular
         computer at your place of business?
         A.   Over three weeks.
         Q.   In September?
         A.   Yes, sir.
         Q.   All right.  And after he left, did you go to that computer
         and try and make it do something?
         A.   The next day.  Yes, sir.
         Q.   Okay.  And what did you do?
         A.   I turned it on and I had nothing.
         Q.   Okay.  What is a computer supposed to do when you turn it
         on?
         A.   It's supposed to boot up.
         Q.   And the term boot up means what?
         A.   Means boot up, execute the command com and sit at DOS.  I
         had no DOS.  It was not -- it did not work.
         Q.   Okay.  If a computer boots up properly, will it then
         respond to the keyboard commands you give it?
         A.   Yes, sir, it will.
         Q.   And when you turned this on, you said it had no DOS or it
         didn't boot.  Would it --
         A.   Yes, sir.
         Q.   Would it respond at all to any commands you gave it?
         A.   It didn't respond at all.  I had it come up and say, no
         command com.
         Q.   Did you work on it to determine what exactly had happened,
         or what was wrong with it?
         A.   Yes, sir.
         Q.   And what did it appear was wrong with it?
         A.   It appeared somebody had F disked my hard drive.
         Q.   They had what?
                   THE COURT:  What?
                   THE WITNESS:  F, F disked my hard drive, which means
         partition it.
         BY MR. KITCHEN:
         Q.   Well, partitioning, is that a bad thing to do to a hard
         drive?
         A.   Well, if you go in and take the bootable sector off, yes,
         it does.  It will not boot.
         Q.   Okay.  So what do you have to do?
         A.   I had to boot with a floppy and repartition the hard
         drive.
         Q.   Okay.
         A.   I repartitioned to identically my size, and believe it or
         not, I had all the material on my hard drive.
         Q.   All right.  So you were able to recover from this?
         A.   I recovered, yes.
         Q.   All right.  And once you recovered, did you find any of
         the things that Larry had been working on?
         A.   Yes, I did.
         Q.   Okay.  And did you get to see if they were operating?
         A.   Yes, sir.
         Q.   Okay.  What happened then?
         A.   Well, the only one that really worked any good was 9-1
         code.  I think the last code on the computer was 9-23, if I'm
         not mistaken.
         Q.   Okay.
         A.   But it would not operate right.
         Q.   Now, when you say 9-1 code, are you talking about a date?
         A.   A date on the source code, yes, sir.
         Q.   All right.  So it's the end of September, about the 24th
         of September, and you're saying that the only one that worked
         was the 1st of September's codes?
         A.   Yes, but it didn't work when we first tried to use it,
         because also there was some way somebody had done something to
         our Borlyn C Plus program that that wouldn't even compile.  So
         we had to take and destroy that, take the material out of the
         source code, off of the computer, take and put Borlyn in again,
         re-install it.  Then we put this program back in.  That's how
         we compiled.
         Q.   Okay.
                   THE COURT:  Who is we at this point?
                   THE WITNESS:  At that point it was myself and Greg
         Armenia.
                   THE COURT:  Greg.
                   THE WITNESS:  Armenia.
         BY MR. KITCHEN:
         Q.   Now, had Larry James been working on this program between
         September 1st and September 23rd or 24th when he left?
         A.   Yes, sir, till the day he left.
         Q.   Well, all this work that he had been doing for those
         weeks, had you been paying him for that?
         A.   Yes, sir, I was.
         Q.   And at the end of those three weeks, did you have any --
         A.   No, sir, I did not.
         Q.   Okay.  So the most recent workable thing you had was from
         his code that he had done as of the 1st of September?
         A.   The 1st of September, yes.
         Q.   So what did you do at that point?  You had a new disk
         coming out?
         A.   I had a new disk coming out.
         Q.   What were you going to use then on that?
         A.   I really wasn't going to use -- I was going back to my old
         code, but you're going backwards then.  So Greg talked me into
         hiring his brother Pete Armenia, to come in from Rochester to
         fix the bug.  So I hired him.
         Q.   Okay.  And did he come in and fix it?
         A.   Yes, sir, he did.
         Q.   And were -- and how long did it take him to fix it?
         A.   I'd say about 20 minutes.
         Q.   Okay.
                   THE COURT:  What was he fixing?
                   THE WITNESS:  He was fixing a bug in a program.
         BY MR. KITCHEN:
         Q.   Was this a bug that prevented it from even working?
         A.   Yes.  There was a lot of bugs in it.
         Q.   All right.  Now, when he got things fixed and everything,
         then was it, was it operating as of -- well, was the thing that
         he fixed the September 1st version?
         A.   Yes, sir.
         Q.   Okay.  So, was anybody able to do anything with the
         changes that Larry had apparently worked on between September
         1st and the end of September?
         A.   No, sir.
         Q.   All right.  So you got the bug fixed and you use that on
         the next version?
         A.   Yes, sir.
         Q.   All right.  Which one would that be?  Do you know, which
         PDSI would that be?
         A.   PDSI-005.
         Q.   005.
         A.   Exhibit 6.
                   MR. KITCHEN:  We may not have it.  I don't believe we
         have 5 actually, or at least it wasn't marked as a previous --
                   THE COURT:  I don't see it on my list.
                   MR. KITCHEN:  No.  It wasn't -- I don't think it was
         marked as a previous Exhibit, Judge.
                   THE COURT:  But 8 is 005 from October.
                   MR. KITCHEN:  Oh.  8.
                   THE WITNESS:  This might have been mistaken as a 005.
         Okay.  There we go.
         BY MR. KITCHEN:
         Q.   Okay.  So Plaintiff's Exhibit 8, is that the PDSI-005 to
         which you refer?
         A.   Yes, sir.
         Q.   Okay.  Now, after Larry walked out in the end of
         September, did you have any other discussions or conversations
         with him?
         A.   Yes, I did.
         Q.   Okay.  And when did those take place?
         A.   It took place a couple days after that.
         Q.   Okay.  By --
                   THE COURT:  After September?
                   THE WITNESS:  After September, yes.
         BY MR. KITCHEN:
         Q.   How did they take place, or where did they take place?
         A.   They took place in my home.  Greg Armenia kept hounding me
         that I should take and go ahead and sue Larry, put him in jail
         or whatever.  He kept pressing the issue and pressing the
         issue, so finally I said, well, let me call Larry and see if I
         can't get it straightened out.  Because I wanted to know
         myself, too, that it was my code or his code.  And I made the
         phone call.  And at that time, you know the phone conversation
         from the tape.
         Q.   Okay.  And -- okay.  Showing you Plaintiff's 16 and 17 for
         that matter, which appear to be two cassette tapes?
         A.   Yes, sir.
         Q.   Can you tell me if you've seen those before?
         A.   Yes, sir, I have.
         Q.   Okay.  And who prepared those?
         A.   Greg Armenia.
         Q.   And they were prepared where?
         A.   At my home.
         Q.   Okay.  And they were tapes of what?
         A.   Of me and Larry James' conversation on the telephone about
         my source code.
         Q.   Can you, can you tell us what took place in the first
         conversation with Larry?
         A.   I asked him more or less, I was concerned about the
         compiler, why it didn't work.  I asked him what he took out of
         the program, why it couldn't compile code.  And he says, well,
         you'd know I carry floppies, which I generally carry floppies.
         He says he has a lot of help files that might not be in there.
         I said, well, you're doing code on my computer.  The help files
         or the libraries should all be on the computer.  You know,
         that's the way I felt.  And then it went on and on and I got to
         the point where I says, Larry, is it my code, or is it your
         code.  He didn't say.  He didn't answer.  I said, well, what do
         I need to do.  He said, well, you give me what I want and I'll
         give you what you want.  And I knew exactly what he was talking
         about.
         Q.   What?
         A.   Well, for the last couple of months he's been trying to
         tell me that if I give him a dollar a disk, he'll continue to
         do that program, and that was never entered into no agreements.
         Q.   And you did not agree to give him a dollar a disk?
         A.   I did not agree, no way.
         Q.   And you hadn't previously agreed to give him --
         A.   I never agreed to that.  I agreed, if I made a commercial
         program of that retrieval, Larry James would get a dollar a
         disk.  That's the only time a dollar a disk come up.
         Q.   Okay.
         A.   Never.
         Q.   Now, let's talk about that because you said, if you made
         it a commercial program?
         A.   Yes, sir.
         Q.   All right.  What do you mean by that?
         A.   I would never use the Night Owl retrieval that I had
         created from day one to take and put on the marketplace.  We,
         I wanted to create something totally different that James would
         have got credit for it.  He would have got paid for it.  It
         would have been his product.  But I didn't want to use mine.
         Mine, I had to keep it separate.
         Q.   So what --
         A.   Because there was only five of us at the time on the
         marketplace.  There was only five publishers.
         Q.   So what was your intention then?
         A.   My intention was to make a commercial package.
         Q.   How would you go about doing that?
         A.   Well, first off, you'd take and write a new retrieval.
         You would make a lot of help files and a lot of things that
         make it easy for a person to program a disk.  Otherwise,
         copying files, once you've got a DIR built up, you would take
         and move these files from this specific directory to your new
         directory.
         Q.   All right.  Now --
         A.   Utilities you need.
         Q.   Let me, let me -- I want to clarify this because we've
         already, of course, talked about the fact that Night.EXE has
         been on all these things which you have published --
         A.   Yes.
         Q.   -- and you have sold?
         A.   Yes, sir.
         Q.   But that's not what you're talking about?
         A.   No, sir, I'm not.
         Q.   You're talking about --
         A.   I'm talking about a totally different retrieval.
         Q.   Okay.
         A.   Nothing that looks like Night.
         Q.   And who, what kind of people would you sell to?
         A.   We would try to sell to other publishers.
         Q.   Other CD ROM publishers?
         A.   Other CD ROM publishers.
         Q.   Okay.  So this is not intended for a user who might buy
         your --
         A.   Oh, no.
         Q.   Okay.  Would this put you in a similar category with this
         Folio program that you --
         A.   Yes, sir, it would have.
         Q.   Okay.  You would be a competitor of Folio?
         A.   Yes, sir.
         Q.   Now, if you marketed something like that -- well, let me
         ask you, did Night.EXE in its present form as you were using
         it, was that in the kind of shape that you wanted to --
         A.   No, sir.
         Q.   Okay.  And you would have to do some of the things you
         mentioned about help files and stuff like that?
         A.   Yes, sir.
         Q.   Well, what, what would something like this retail for?  I
         mean, if you did sell it to other CD ROM publishers, what would
         you sell it for?
         A.   Well, I figured at least, you know, I paid, I would have
         paid $999 for Folio, so I figured that program would have been
         worth $1,000, you know, the recreated one, and maybe a dollar
         a disk.  See, the dollar a disk would have been off the other
         person, not off me to begin with.
         Q.   Now, when you intended to -- if you would have paid Larry
         a dollar a disk for the commercial version --
         A.   No.  I wouldn't have paid Larry a dollar a disk for the
         commercial version.  They would have, the person that bought
         that product, not Night Owl, him.
         Q.   Okay.  In any event, did you ever develop the commercial
         version of this?
         A.   No, we did not.  I dropped that theory.
         Q.   Okay.  During our preliminary hearing we had December
         21st, 1991?
         A.   Yes, sir.
         Q.   You, you had somewhat different intention, didn't you?
         A.   I --
         Q.   Well, were you intending to possibly market this as a
         commercial product?
         A.   No, sir.
         Q.   Okay.  Now, that was the only context in which this dollar
         a disk idea came up?
         A.   Yes, sir.
         Q.   And did you ever agree to pay him a dollar disk for the --
         A.   No, sir, I did not.
         Q.   Okay.  And nothing in connection with the CD ROM's
         themselves, a dollar a disk?
         A.   No, sir.
                   MR. KITCHEN:  If I could just have a moment, Your
         Honor.
                   MR. OSTROWSKI:  Could I just ask, is it possible that
         I could have access to the Court's transcript of the
         preliminary hearing, until such time as the Court requires it?
         My client simply cannot afford a copy of the transcript.  And
         I believe that Mr. Kitchen has one in front of him.
                   MR. KITCHEN:  That's correct, Your Honor.
                   THE COURT:  All right.  This is docket item number 2
         and I will lend it to you.
                   MR. OSTROWSKI:  Thank you, Your Honor.
                   THE COURT:  Do not mark it up or destroy it.
                   MR. OSTROWSKI:  Yes, Your Honor.
         BY MR. KITCHEN:
         Q.   There was also, Plaintiff's Exhibit 17 I believe was the
         other tape.  What, when did that conversation take place, the
         second tape?
         A.   I'm not actually positive about a second tape.  I know one
         tape.  I don't know anything about two tapes, unless Greg had
         to change tapes.
                   THE COURT:  What's the other one that's right there
         at your left hand?
                   THE WITNESS:  They're both identical tapes, Your
         Honor.
                   MR. KITCHEN:  If you --
                   THE COURT:  Is that a single conversation running
         through two tapes?
                   THE WITNESS:  It could be.  It looks like --
                   THE COURT:  It could be a lot of things.
                   THE WITNESS:  -- he's got the dates --
                   THE COURT:  Do you know?
                   THE WITNESS:  No, sir.  I don't.  I didn't tape it.
                   THE COURT:  I see.  You don't know what 17 is.
         BY MR. KITCHEN:
         Q.   Have you, have you listened to those tapes recently?
         A.   I didn't need to.  I had the conversation.
                   THE COURT:  Did you?  Your answer is no, you didn't.
         Right?
                   THE WITNESS:  No, sir.
                   THE COURT:  All right.
         BY MR. KITCHEN:
         Q.   Did there come a time after Larry James left that you
         became aware of his use of your programs?
         A.   Yes, sir, I did.
         Q.   Okay.  And how did you become aware of that?
         A.   I came aware, actually twice, once before he left and
         after he left.
                   THE COURT:  This is after.
                   THE WITNESS:  After he left, I found out from a
         Robert Depew, he called me.
                   MR. OSTROWSKI:  Objection.  Hearsay.
                   THE COURT:  Yes.  You can't say what other people
         said.
         BY MR. KITCHEN:
         Q.   And did you, did you become aware at all of his use of
         these programs before he left?
         A.   Yes, sir.
         Q.   Okay.  How did you become aware of that?
         A.   Through Ralph Markowicz.
                   MR. OSTROWSKI:  Objection.  Hearsay.
         BY MR. KITCHEN:
         Q.   All right.  What did you --
                   MR. OSTROWSKI:  I ask that the response concerning
         aware of be stricken.
                   THE COURT:  I'll leave it in.  Without the jury we'll
         see what happens to it.  Obviously it's hearsay.
         BY MR. KITCHEN:
         Q.   In response to information given to you, what did you do,
         if anything?
         A.   I really wasn't going to do anything, but Greg Armenia is
         the one that said he was --
                   MR. OSTROWSKI:  Objection.  Hearsay.
                   THE COURT:  Excuse me.  Your answer is, you did
         nothing?
                   THE WITNESS:  Well, we did, but --
                   THE COURT:  You.
                   THE WITNESS:  Me.  Not at that time.
                   THE COURT:  Right.
         BY MR. KITCHEN:
         Q.   Okay.  You had Greg Armenia's brother come in and he did
         a quick fix on the program?
         A.   Yes, sir.
         Q.   And what other changes, if any, were made to that program
         after that?
         A.   After that?
         Q.   Yeah.
         A.   I had turned over my source code to Brian Martin in
         Rochester.
         Q.   Okay.  And who is Brian Martin?
         A.   Brian Martin is a programmer that works for Kodak.
         Q.   And how did you become aware of him?
         A.   Through Greg's brother.
         Q.   Did, did -- what did you ask Mr. Martin to do?
         A.   I asked Brian if he could take and write us some code.
         Q.   And what, what changes, what differences did you want?
         A.   We wanted a lot of different changes, different ways
         things are called, different way they're done.
         Q.   Okay.  Did you provide him with any previous code that you
         had?
         A.   Yes, sir, we did.
         Q.   What did you provide him with?
         A.   The 9/1, 1991 code.
         Q.   Okay.  And that was the translation into C that --
         A.   That was source code.
         Q.   Right.  Did you give him anything that Larry James had
         worked on after September 1, 1991?
         A.   No, sir, I had not.
         Q.   Okay.  And did you tell Mr. Martin what you wanted?
         A.   Yes, sir, I did.
         Q.   And what did you want that was different?
         A.   I wanted a lot of things, like PK.UNZIP, like when you're
         going down through files and it has a ZIP extension, it would
         unzip that file.  If it came to an execute file, with an EX at
         the end of it, it would try to unzip that file, too.  It would
         not roll over.  Otherwise it would not switch.  The program was
         not smart enough to switch from an execute to a zip to a gif,
         to different extensions.  I needed that.  I needed to be able
         to show graphical pictures through our program.  I needed to
         have printer support, mouse support, format commands, all this
         stuff, is what we needed in our program.  That's why I asked
         Brian if he could do all this stuff, and he said he could.
         Q.   And you gave him -- and did he ultimately write a program
         for you?
         A.   Yes, sir, he did.
         Q.   Okay.  And did it do everything you wanted it to?
         A.   It sure did.
         Q.   Now, did it also take care of the previous problem of not
         being able to select colors and things like that that you had
         said were lacking in the C translation?
         A.   Yes, sir.
         Q.   Did you pay him some compensation for this?
         A.   No, sir.
                   THE COURT:  Nothing to Martin?
                   THE WITNESS:  Nothing.
         BY MR. KITCHEN:
         Q.   Okay.  Did -- Martin wasn't paid anything?
         A.   Not for that job.
         Q.   Okay.  Did Mr. Martin do any programming for you after
         that?
         A.   No, sir.
         Q.   Okay.  Well, did he do any job for you, I mean, that he
         got paid for?
         A.   No, sir.  He got paid before, but not -- you don't --
         well, after the fix was done --
         Q.   Well, let me stop you.  Did you pay Mr. Martin anything at
         any time?
         A.   Yes.
         Q.   Okay.  What did you -- how much did you pay?
         A.   I think it was $200.
         Q.   All right.  And what was that for?
         A.   That was for previous before the -- he actually rewrote
         the code.  Okay.  See, I hired him to write the code, before,
         when it had the bug in it, to straighten out what Greg
         Armenia's brother had to do, there was still a lot of X code in
         there where Larry had put in his locks to protect his
         Compuserve number and stuff.
         Q.   Okay.  We're trying I think to sort this thing out
         chronologically and everything, and you previously said that,
         you know, Larry left, you had the problem, you called in Greg
         Armenia's brother, he did a quick fix in about 20 minutes?
         A.   A quick fix.
         Q.   Okay.  And then, and then at what point did Brian Martin
         come into the picture?
         A.   About two weeks after that.
         Q.   Okay.  And you asked Brian first -- what was the first
         thing you wanted him to do?
         A.   I asked Brian if he could take and to clean up the mess.
         Otherwise take the copyright off, thing off, and clean up the
         Compuserve number and take all the locks out of the program.
         Q.   Now, the locks, it's the first time we've heard this term
         in this session.  Would you explain to me what you mean by take
         the locks out?
         A.   Well, if I take a letter off Larry's last name, like
         James, if I take the S off the program will not work.  If I
         take one Compuserve number out it won't work.  If I try to
         switch anything, it would not work.
         Q.   Well, is that normal for programs, if you'd alter any
         little bit of it that it won't work?
         A.   Oh, yeah, there's safeguards, but the original purpose of
         that safeguard was not for Larry James' need, it was supposed
         to be for the computer, or Night Owl's Computer Service, not
         for him.
         Q.   Well, in other words, what if you changed your name on the
         copyright notice?
         A.   Oh, you could do, you could change my name all day long.
         Q.   It didn't affect the operation?
         A.   No, it did not.  No.
         Q.   Well, now, what happened if you changed a letter or part
         of his name?
         A.   It would not work.
         Q.   You mean the whole program wouldn't work?
         A.   That's right.  It would lock up.
         Q.   All right.  And you gave this to Brian Martin as something
         to fix, right?
         A.   Yes, sir.
         Q.   And was he able to do that?
         A.   Yes, sir, he was.
         Q.   Okay.  And for that you paid him that --
         A.   Yes, sir.
         Q.   -- $200?
         A.   Yes.
         Q.   How long did it take him to accomplish that?
         A.   I'd say a day.
         Q.   Okay.  And then -- now, did you utilize that program then
         in its fixed up by Brian Martin version?  Did you use that on
         one of your published disks?
         A.   Yes, sir, we did.
         Q.   Which disks did you use that on?
         A.   I think that was 6-1.
         Q.   Okay.
         A.   Or 6 -- my mistake.
         Q.   Just 6?
         A.   Yes.
         Q.   All right.
         A.   PDSI-006.
         Q.   Okay.  And --
                   THE COURT:  006 is --
                   MR. KITCHEN:  We don't have that on the Exhibit list,
         Your Honor.
                   THE COURT:  Okay.
         BY MR. KITCHEN:
         Q.   When was that published, approximately?
         A.   That was published later -- early of '92.
         Q.   And Mr. Martin --
                   THE COURT:  You're talking about a PDSI-006.
                   THE WITNESS:  Yes, sir.
                   MR. KITCHEN:  Right.  Yes.
                   THE COURT:   Did  you have some other 006's with
         other --
                   THE WITNESS:  Yes, sir.
                   THE COURT:  -- prefatory letters.
                   THE WITNESS:  Yes.
                   MR. KITCHEN:  Yes, sir.
         BY MR. KITCHEN:
         Q.   As a matter of fact, do you have PDSI-006 with you?
         A.   Yes, I do.
         Q.   Okay.  Could you get that because we're going to --
                   THE COURT:  24 would be a PDSI-006.
                   MR. KITCHEN:  Yes, sir.
                   THE COURT:  Is that what you're looking for?
                   MR. KITCHEN:  Yes.  I think we've got it.
         BY MR. KITCHEN:
         Q.   Showing you Plaintiff's Exhibit 4, what version of disk is
         that?
         A.   That's PDSI-006-1.
         Q.   Okay.
                   THE COURT:  Plaintiff's Exhibit 4?
                   MR. KITCHEN:  24.  24.
                   THE COURT:  24.  All right.
         BY MR. KITCHEN:
         Q.   And do we have a -- did you bring a copy of PDSI-006, just
         plain 6?
         A.   No, sir, I did not.
         Q.   Okay.
         A.   That was recalled.
         Q.   And this is actually 6-1?
         A.   Yes, sir.
         Q.   My Exhibit list then is in error in that respect.
         A.   Yes.
                   THE COURT:  It should be 6-1.
                   MR. KITCHEN:  It should be 6-1.  Okay.
         BY MR. KITCHEN:
         Q.   And after, after that, did you have Brian Martin do some
         additional work?
         A.   Yes, sir.
         Q.   And what was that?
         A.   That's when we wanted all the new features and everything
         added.
         Q.   Okay.  So did he essentially start from scratch?
         A.   Yes, he sure did.
         Q.   And created a brand new program?
         A.   Yes, sir.
         Q.   Did, did the screens look approximately the same?
         A.   To a sense.
         Q.   Did, did it have different features?
         A.   Yes, it did.
         Q.   And when did you use that, on what version did you use
         that?
         A.   I think that came out on the 6-1.
         Q.   The 6-1.  So therefore, our Exhibit number 24 would be an
         example of Brian Martin's new Night.EXE?
         A.   Yes.
         Q.   From scratch.  Okay.
         A.   Right.
         Q.   Then was there also -- let me see.  Keep these straight.
         6-1 he's got up there.  Let me show you Plaintiff's Exhibit 25,
         and what, what version is that?
         A.   That's version NOPV-6.
         Q.   Now, I notice that we've departed from PDSI to NOPV.  Was
         there a particular reason for that?
         A.   Yes, sir, there is.
         Q.   Okay.  What does, what does that stand for?
         A.   To drop authorship.
                   THE COURT:  Excuse me.
                   THE WITNESS:  To drop authorship.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   Well, what did PDSI stand for?
         A.   PDSI stood for public domain shareware.
         Q.   Okay.  And what does NOPV stand for?
         A.   NOPV is Night Owl Publisher.
         Q.   Okay.  Is there anything really different, other than your
         deciding to use one set of four letters versus another set of
         four letters?
         A.   No.  There was another significant reason, to drop
         authorship in the code.
         Q.   The NOPV-006, that used Brian Martin's new, brand new
         code, right?
         A.   Yes, sir.
         Q.   Okay.  And then have you also had an NOPV-007?
         A.   Yes, sir, I have.
         Q.   What is that, do you have a copy of that?
         A.   Yes, sir, I do.
         Q.   Okay.
         A.   But before that came out there was another one.
                   THE COURT:  Whenever you hit a breaking point.
         BY MR. KITCHEN:
         Q.   Showing you Plaintiff's number 28 -- excuse me.
         A.   26.
         Q.   Number 26, which on our Exhibit list says Night Owl's
         NOPV-007.  Is that what that is?
         A.   Yes, sir.
         Q.   All right.  And what, what version of Night.EXE is on that
         one?
         A.   Our brand new one.
         Q.   Okay.  And that was also done by, the one done by Brian
         Martin?
         A.   No.
         Q.   Okay.  This was done by somebody else?
         A.   That was done by our new programmer, Phil Swanson.
         Q.   All right.
                   THE COURT:  Bill Swanson?
                   THE WITNESS:  Phil Swanson.
                   THE COURT:  Phil Swanson.
         BY MR. KITCHEN:
         Q.   And showing you Plaintiff's Exhibit number 27, is that yet
         a newer version?
         A.   Yes, sir, it is.
         Q.   What version of the disk is that?
         A.   NOPV-8.
         Q.   And whose, who was the one that wrote the code for, for
         that one?
         A.   Phil Swanson.
         Q.   Okay.  Can you tell us basically what similarities there
         are with this latest version of Night.EXE that Phil Swanson
         wrote and the one that, well, way back in the summer of 1991
         was developed with the Quick Basic that Larry James worked on?
         A.   What's the difference?
         Q.   Yeah.
         A.   We have everything we want in the program now.  I mean,
         everything.
         Q.   Okay.  Does this kind of do the job for you, finally?
         A.   Yes, sir, it does.
         Q.   All right.
                   MR. KITCHEN:  Now, I think this is an appropriate
         break point.
                   THE COURT:  Very good.
                   MR. KITCHEN:  I don't know if I'll have too many more
         questions.
                   THE COURT:  One hour sufficient, gentlemen, or do you
         want more?
                   MR. OSTROWSKI:  I think I would need a little more.
         We want to bring a computer in, Your Honor.  It may take a
         while.
                   THE COURT:  An hour and a quarter?
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE COURT:  All right.
                   MR. KITCHEN:  Well, we're probably going to set up
         our computer and do that.  I don't know to what extent there
         might be -- one might do the trick.
                   THE COURT:  How much time do you need?
                   MR. KITCHEN:  Oh, well, probably an hour and a
         quarter would be fine.
                   THE COURT:  Thank you.   All right.
              (Lunch recess taken.)
                   THE COURT:  On the record.
                   CONTINUED DIRECT EXAMINATION
         BY MR. KITCHEN:
         Q.   Mr. Graham, did there come a time when you registered your
         copyrights with the United States Copyright Office?
         A.   Yes, sir, there is.
         Q.   Okay.  Let me show you Exhibits 13, 14 and 15.  And can
         you explain what those forms are?
         A.   These are the copyright programs for the Night.EXE.
         Q.   Okay.  What, what is the form name at the top right-hand
         corner for each of those?
         A.   Form TX, United States Copyright Office.
         Q.   Okay.  And where did you receive those forms from?
         A.   From Washington, Copyright Office.
         Q.   Okay.  And who filled out the forms to begin with?
         A.   I did.
         Q.   Okay.  And you sent them in yourself?
         A.   Yes, sir.
         Q.   Okay.  And then they added some, something on there, and
         sent them back?
         A.   Yes, sir.
         Q.   Okay.  Now, these, the particular programs that you
         copyrighted, do all three of these copyright forms pertain to
         Night.EXE?
         A.   Yes, sir, they do.
         Q.   Okay.  And that included those that were worked on by
         Larry James?
                   THE COURT:  Don't lead the witness.  I know you put
         a question mark on the end of that, but --
                   MR. KITCHEN:  Yes, sir.  Okay.
         BY MR. KITCHEN:
         Q.   Which, which particular versions of the Night.EXE did you
         copyright?
         A.   All three.
         Q.   Okay.  And when you say all three, what do you mean?
         A.   Well, one was copied by our first code that was done in
         1990, the Basic code.
         Q.   Was that --
         A.   Not Larry's Basic code, Jeff Anderson's and my code.
         Q.   Okay.
         A.   The other two were the C Plus Plus codes written by Larry.
         Q.   All right.  And have you copyrighted any more since?
         A.   No, sir, I have not.
         Q.   Okay.  Well, actually, do you have copyright notices on
         those?
         A.   Yes, sir, we do.
         Q.   Okay.  But have you registered any since?
         A.   No, sir.
         Q.   Since these three?
         A.   No, sir.
         Q.   Okay.  Are you acquainted with a disk called Storm One?
         A.   Yes, sir, I am.
                   THE COURT:  Storm One?
                   MR. KITCHEN:  Yes. Uh-huh.
         BY MR. KITCHEN:
         Q.   How did you become aware of Storm One?
         A.   I was called by the owner of that product that I had
         something that -- he had something he wanted me to look at.
         Q.   Okay.  And have you actually seen Storm One?
         A.   The actual disk, no, sir, I have not.
         Q.   Okay.  Are you acquainted with -- well, have you seen the
         program Storm One?
         A.   I've seen the program.  Otherwise, what it was is, Robert
         Depew called me and says, Richard --
                   MR. OSTROWSKI:  Objection, Your Honor.
                   THE COURT:  The question was, have you seen it?
                   THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q.   Okay.  And how did you get a copy of it?
         A.   Robert Depew Federal Expressed it to me overnight.
         Q.   Okay.  And you loaded it into your computer and brought it
         up?
         A.   Yes, sir, I did.
         Q.   Okay.  And did it have a copyright notice on it?
         A.   Yes, sir, it did.
         Q.   And who was the copyright?
         A.   By Larry James.
         Q.   And what, what kind of a program did it appear to be?
         A.   It was the Night Owl Retrieval.
                   THE COURT:  Excuse me?
                   THE WITNESS:  It was the Night Owl Retrieval.
         BY MR. KITCHEN:
         Q.   Well, it wasn't called the Night Owl Retrieval, was it?
         A.   No, sir, it was not.
         Q.   And did the screens in there say that it was Night Owl?
         A.   No, sir, it did not.  They were altered.
         Q.   Okay.  Did it have the same features as Night Owl?
         A.   Yes, it did.
         Q.   And did it do essentially the same things?
         A.   Yes, sir, it did.
         Q.   Did you consider that an infringement on your copyright of
         Night Owl?
                   MR. OSTROWSKI:  Objection.
                   THE COURT:  He may answer.
                   THE WITNESS:  Yes, sir, I did.
         BY MR. KITCHEN:
         Q.   And was that one of the reasons for your bringing of this
         action?
         A.   Part of it, yes.
         Q.   Okay.  Going back to your original program that you and
         Jeff Anderson came up with, is there, was there anything
         particularly unique about the structure of that program, or how
         you --
         A.   Yes, sir, there was.
                   THE COURT:  Excuse me?
                   THE WITNESS:  Yes, sir, there was.
         BY MR. KITCHEN:
         Q.   What was unique about it?
         A.   The way we located our files and the way we identified the
         directory, which was the first two lines of our DIR file, each
         one, DIR1, 2, 3.  Every one of them had a location and a name
         of that directory in it.  That's how our retrieval would locate
         that program.
         Q.   Was there a particular advantage to using that, that
         specific feature in the structure of your program?
         A.   To locate the programs, yes.  Without it you wouldn't have
         found them.
         Q.   Okay.  And did you see how the structure was of the
         program Storm One?
         A.   Yes, I did.
         Q.   Was that essentially --
         A.   Yes, it was.
         Q.   -- the same thing?
         A.   With the same things in the DIR's, yes.
         Q.   Okay.  Now, have you since then seen other programs that
         are essentially similar in look and feel to your copyrighted
         program?
         A.   Yes, sir, I have.
         Q.   Okay.  And where have you seen that?
         A.   Pier One CD.
         Q.   Pier One?
         A.   Greg Armenia's disk.
         Q.   Okay.  Now, Pier One, that's another CD ROM?
         A.   Yes, sir, it is.
         Q.   What kind of CD ROM is that, what does it carry?
         A.   Public domain shareware programs.
         Q.   That's essentially what you carry.
                   THE COURT:  Pier One, that's a retail outlet, you
         mean?
                   THE WITNESS:  Well, they got shut down because of
         using that name illegally, but that was it at first.
                   THE COURT:  I see.
                   MR. OSTROWSKI:  Objection.  I object to the reference
         of using something illegally.
                   THE COURT:  All right.  I provoked the answer.  I'll
         allow it.
         BY MR. KITCHEN:
         Q.   As far -- well, I won't ask that, but, and did you, did
         you say that the -- have you looked at the Pier One disk?
         A.   Yes, sir, I have.
         Q.   Have you seen the copyright on that particular program?
         A.   Yes, sir, I have.
         Q.   And who is that copyright?
         A.   Larry James.
         Q.   Okay.  And does that function essentially the same as your
         copyrighted programs?
         A.   Yes, sir, it does.
         Q.   Okay.  And you said the Pier One disk was directly in
         competition with yours?
         A.   Yes, sir, it is.
         Q.   Okay.  So does that mean it carries some of the same
         programs?
         A.   Not essentially, no.
         Q.   Okay.
         A.   There's a lot of shareware out there.
         Q.   Well, I mean, is it possible that somebody might --
         A.   Could be duplications.
         Q.   Okay.  Is it possible that somebody in looking for a
         shareware disk might buy the Pier One instead of Night Owl?
         A.   Yes.
         Q.   And what kind of a disk is Storm One?
         A.   X-rated.
                   THE COURT:  Is what?
                   THE WITNESS:  X-rated.
                   MR. OSTROWSKI:  Objection, Your Honor.  He testified
         he hasn't seen it.  I ask that it be stricken.
                   THE COURT:  That's right.  I'll strike it.
         BY MR. KITCHEN:
         Q.   Have you seen Storm One advertised?
         A.   Yes, sir, I have.
         Q.   What kind of a disk is it advertised as?
         A.   X-rated disk.
         Q.   Did you object to a program that was similar to your own,
         if not identical to your own, being on an X-rated disk?
         A.   Yes, sir, I did.
         Q.   Why?
         A.   Because it would have ruined my market.  It would have
         ruined my reputation.  I guaranteed to my public that I would
         never do a disk like that.  And then to have a competition come
         out with the same retrieval as mine.
         Q.   Now, what do you feel the commercial value is of a well-
         written CD ROM retrieval system?
         A.   Today?
         Q.   Yes.
         A.   $2,000-$3,000.
                   THE COURT:  $2,000 or $3,000?
                   THE WITNESS:  Yes, sir.
                   THE COURT:  Can you be more explicit?
                   THE WITNESS:  I just bought one, $2,500.
                   THE COURT:  All right.  $2,500.
         BY MR. KITCHEN:
         Q.   Now, that was to have it written?
         A.   That was to have it written.
         Q.   And that was from scratch?
         A.   That's from scratch.
         Q.   Okay.  What would that, if you wanted to distribute that
         commercially, you already testified that you could get maybe
         $1,000 for one of those in a commercial form.  Was that what
         your previous testimony was?
         A.   Not just that program.  It takes a lot more to it,
         utilities.
         Q.   Okay.  How many, how many potential -- I mean, what is the
         market for this?  How many CD ROM publishers are out there that
         you could sell to?
         A.   400.
         Q.   400?
         A.   400 now, right.
         Q.   And do you feel that out of those 400 that a portion of
         them might be interested in a well written CD ROM retrieval
         system?
         A.   It's possible, yes.
         Q.   Okay.  So do you feel that there's a potential market
         value for a CD ROM retrieval system?
         A.   Yes, sir.
         Q.   Okay.  Do you know what that might be worth in the
         aggregate?
         A.   I never really searched on it because I'm not interested
         in that.
         Q.   Okay.
         A.   I'm a publisher.
         Q.   Okay.  And since copyrighting and registering the
         copyright, have you transferred or assigned your copyright to
         these programs in any way?
         A.   No, sir, I have not.
         Q.   You still retain full rights?
         A.   Yes, sir, I do.
         Q.   And did you ever assign or transfer any of the right to
         Larry James?
         A.   No, sir.
                   MR. KITCHEN:  Okay.  I have no further questions.
                   CROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Didn't you testify at the preliminary hearing that your
         program is worth $60,000?
         A.   To me it was.
         Q.   But, and you just said it was worth what?
         A.   $2,000 or $3,000 today.
         Q.   Same program?
         A.   Same program, no, since there's more publishers.  There's
         more retrievals out there now than there was then.
         Q.   Well, if you were selling the program couldn't you sell it
         to more publishers?
         A.   I have no idea.  I was not in the intent to sell.
         Q.   That's not what I'm asking you.  There's more publishers
         to sell a file retrieval system to now, isn't there?
         A.   There's more publishers, yes.
         Q.   So it should be worth more, not less?
         A.   Less.
         Q.   Okay.  Even though there's more publishers to sell it to?
         A.   Less.
         Q.   Okay.  Did you inflate the value in order to get an
         injunction?
         A.   Pardon?
         Q.   Did you inflate the value in order to get an injunction --
         A.   No, I did not.
         Q.   -- back in December 1991?
         A.   No, I did not.
         Q.   Didn't exaggerate at all?
         A.   No, I did not.  That's what I felt my program was worth.
         Q.   And it's dropped in value by $57,000?
         A.   That's right.
         Q.   Okay.  Now, you stated that you did have some agreement
         with Larry James concerning a dollar a disk, is that correct?
         A.   I had no agreement with Larry James on a dollar a disk for
         my retrieval.
         Q.   Did you have some agreement with Larry James, in that he
         would be paid a dollar a disk?
         A.   If we made a commercial CD ROM retrieval, yes.
         Q.   So the answer is yes?
         A.   Yes.
         Q.   And you were going to -- well, he was to be paid a dollar
         a disk?
         A.   Not by Night Owl.  Not by me.  By the people that bought
         his product.
         Q.   I see.  And didn't you say in that, when you were being
         questioned by Mr. Kitchen, that there were five publishers who
         might buy it?
         A.   In that time, yes.
         Q.   Okay.
         A.   There was only five publishers out there.
         Q.   So your, your proposal that was, that you discussed, was
         that he would, the program that he worked on would be sold
         commercially to probably five publishers and --
         A.   No, sir.
         Q.   -- he would get five --
                   THE COURT:  Wait a minute.  Wait a minute.
                   MR. OSTROWSKI:  Excuse me.
                   THE COURT:  There's a ground rule, you have to wait
         for the question, then he'll wait for the answer.
         BY MR. OSTROWSKI:
         Q.   And that it would probably be sold to five people for a
         dollar apiece that would go to Larry James?
         A.   No, sir, it was not.
         Q.   Well, what do you mean, it was not?
         A.   That program that you just said was to be written, that
         Larry James wrote, was to be sold, that was never in no
         agreement, and I never testified to that.  That program was not
         to be sold.
         Q.   Then how was he going to make a dollar a disk?
         A.   He was supposed to write another retrieval.
         Q.   Okay.  And if that was done --
         A.   He never wrote it.
                   THE COURT:  Wait a minute.
                   THE WITNESS:  Okay.
         BY MR. OSTROWSKI:
         Q.   If that was done and sold to five publishers, he'd make
         five bucks, right?
         A.   No, sir.
         Q.   Okay.  Why not?
         A.   He would make a dollar a disk from each one of them people
         that bought the product.  Otherwise, if they cut a thousand
         disks at their manufacturer on Larry's CD ROM retrieval, they
         would have got one dollar per disk, so that would have been
         $1,000.
         Q.   Okay.  So when you said that there were five potential
         people in the market, that was not correct?
         A.   There's -- no.  There was only five potential people;
         myself, Aldy, PC Sig, RBBS and Abbax.  There was only five of
         us publishers.
         Q.   What is the difference between a commercial file retrieval
         and the file retrieval that's on your CD ROM's that you sell?
         A.   The commercial one was a license agreement.  The one I
         bought was a license agreement.  I had to run to a module to
         run it.  That was my license agreement.  There was no
         royalties.
         Q.   Now, when you -- how do you go about getting the material
         ready to be sent to the manufacturer for a CD ROM?
         A.   I buy my material, I buy it on Keller auto tape back-ups.
         I get the material back to my premises, we break the material
         down, check it out, make sure there's no viruses.  We hand walk
         the files, make sure we have no commercial programs that are
         sent to other bulletin boards.  Essentially then I take and
         prepare all the material on my tape back-up, and I send it down
         to Nimbus and they manufacture the disk.
         Q.   How do you check it out on -- you said you check it out.
         What do you check out?
         A.   I check out viruses.  We scan it for viruses.
         Q.   How do you do that?
         A.   With a program.
         Q.   How do you do it though?
         A.   You execute a program and it does it.
         Q.   You execute the program?
         A.   You execute the scan program and it goes through and scans
         it.
         Q.   When you execute the program, what's the first thing you
         see?
         A.   It will come up, it scans, it breaks the file apart.  It
         will scan each execute file and every text file inside there,
         and it --
         Q.   Well, you're talking way too fast.  I can't understand
         anything you're saying.
         A.   It breaks the file down.  It's a zip file.
         Q.   What's the first thing that happens after you execute the
         program?
         A.   I just told you.  It breaks the file apart.
         Q.   I'm not talking -- it breaks the file apart.  What do you
         see on the screen?
         A.   It opens up the file.
         Q.   What --
         A.   You see scan, skip a space so and so, then you'll see
         files start to come on your screen.
         Q.   You don't see the opening screen for the program?
         A.   No, you don't.  If it's registered you don't, if it's not
         you do.
         Q.   What do you mean, if it's registered?
         A.   If it's a registered version, if you've registered it with
         a shareware author.
         Q.   Well, what do you do as far as checking out the file
         retrieval program when you send a CD ROM out?
         A.   It's on my hard drive.  I run it against the material I
         have.
         Q.   You run the file retrieval system?
         A.   Yes.
         Q.   Okay.  And when you execute the file retrieval system,
         what do you see on the screen?
         A.   What do I see on my screen?
         Q.   That's right.
         A.   Of the retrieval, or what you -- I don't know what kind of
         a question you're trying to ask me.  If I type Night --
         Q.   Well --
         A.   -- and that program comes up, my program comes up with my
         menu.
         Q.   Your program comes up with your menu?
         A.   Yes.
         Q.   And after you're done retrieving files, what do you do
         with your program, the file retrieval program?
         A.   When I'm through with it, I exit it.
         Q.   And what do you see when you exit?
         A.   Thank you for using Night.
         Q.   Well, I'm talking generally speaking, not with any
         particular edition.  What do you see when you exit your file
         retrieval --
         A.   You see DOS.
         Q.   You don't see an exit screen?
         A.   No, you don't see an exit screen.  I just -- oh, yes, you
         do, I just told you, thank you for using Night.
         Q.   Well, is it yes or no?  Do you see DOS or do you see an
         exit screen?
         A.   You see both.
         Q.   Well, you see the exit screen, is that correct?
         A.   Well, you see DOS, yes, because when you exit that's where
         you're at.
         Q.   Well, can I just get a straight answer?  Do you see the
         exit screen?
         A.   You see, thank you for using Night, and you see DOS.
         Q.   I'm not -- you're talking about a specific release of
         yours.  I'm talking generally over, how many releases have you
         put out?
         A.   Well, some are releases that have, show an exit screen,
         correct.
         Q.   Okay.  What about the release that had Quick Basic on it
         that Larry James worked on?
         A.   That had an exit screen, too.
         Q.   Did it have a menu?
         A.   Matter of fact, five lines in the top left-hand corner.
         Q.   And what about the release that had the program in C that
         Larry James worked on, did that have an exit screen?
         A.   Yes, sir, it did.
         Q.   Okay.  And did both of those programs have an opening
         screen, a menu screen?
         A.   The one did, had an opening before the menu, and the one
         in C did not have an opening screen, came directly to the menu.
         Q.   So the Quick Basic, after you executed what did you see?
         A.   First thing you seen was a copyright notice.
                   THE COURT:  Which one was this?
                   THE WITNESS:  PDSI-003.
         BY MR. OSTROWSKI:
         Q.   And --
                   THE COURT:  Excuse me?
                   THE WITNESS:  PDSI-003 -- or, 4, I'm sorry, sir.
         BY MR. OSTROWSKI:
         Q.   And with the C version that Larry worked on, what was the
         first thing you saw?
         A.   When you typed the execute?
         Q.   Right.
         A.   First thing we saw was a menu.
         Q.   And when you're checking out the program before it's
         released, you're executing the file retrieval system, right?
         A.   I never checked it out.
         Q.   Well, you just said you did.
         A.   I never checked out his work.
         Q.   Well, you said you checked out the --
         A.   That's the way I do it now.
         Q.   Oh, you do it that way now?
         A.   Now, yes.
         Q.   Okay.  So, now, you're a worldwide distributor of CD
         ROM's, aren't you?
         A.   That's right.
         Q.   A very profitable business?
         A.   It could be.
         Q.   Do you -- what kind of publications do you advertise in?
         A.   I don't advertise.
         Q.   You don't --
         A.   My distributors.
         Q.   You don't advertise at all?
         A.   That's right.
         Q.   Okay.  But how many countries do you sell products in?
         A.   The U.S., Canada, Australia, Austria, Europe.
         Q.   And how do you rank --
         A.   Africa.
         Q.   How do you rank in terms of the market with your
         competitors?  Are you near the top or the middle or the bottom?
         A.   I don't know.  I don't watch the market.  I have no idea.
         Q.   You don't watch the market?
         A.   Well, I watch the market as far as my distributors tell me
         what to do, you know, where we are.
         Q.   Well, who are your, who are your competitors?
         A.   Pier One's a competitor now.
         Q.   Well, are you bigger than them?
         A.   I have no idea.  I don't know what their sales are.
         You're asking me something I know nothing about.
         Q.   Who are your other competitors?
         A.   Well, we've got the X-rated disk in the market, which is
         popular, believe it or not.  We have the Phoenix disk in the
         market, which is flooding it.  We have a lot of disks in the
         market.  We have -- like I said, there's over 400 different
         brands out there.
         Q.   And it's your testimony here that -- well, let's talk
         about the Quick Basic version that Larry James worked on.
         Which edition was that again?
         A.   PDSI-004.
         Q.   Is it your testimony that prior to that being released you
         didn't check out the file retrieval program to see if it
         worked?
         A.   No, sir, I did not.
         Q.   Okay.  Now, if the file retrieval system didn't work, then
         the information on the disk would be extremely difficult to
         use, is that correct?
         A.   If I'd have checked it out I would have found a bug.
         Q.   Okay.  Can you just answer the question.  If the file
         retrieval system that you say you didn't check out did not
         work, then the various programs, some 5,000 you said, would be
         very difficult to access or use?
         A.   Yes, sir.
         Q.   Correct?
         A.   Correct.
         Q.   Okay.  But you sent it out without checking the file
         retrieval system?
         A.   Yes, sir, I did.
         Q.   Okay.  But you did check out the individual components,
         didn't you, the, say the communications section, to see if
         those programs were on there and working?
         A.   No, sir, I did not.
         Q.   Oh, you didn't check those either.  So you didn't check
         the file retrieval system, which allows you to get access to
         the 5,000 files on the disk?
         A.   I had --
         Q.   Correct?
         A.   I had access to the files through DOS, I didn't need the
         retrieval.
         Q.   Okay.
         A.   I already had the disk prepared.
         Q.   Okay.  Could you just answer the question I'm asking.  You
         didn't check out the file retrieval system before it was
         shipped to the manufacturer.
                   THE COURT:  You have the prerogative, you know, of
         insisting on the witness giving a yes or no answer, if you
         want, and if you want that incorporate it in your question.
                   MR. OSTROWSKI:  Thank you, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Now, could you answer yes or no whether, did you check out
         the file retrieval --
                   THE COURT:  Now if the answer is yes, we only know
         that he can answer yes or no and we don't know what he's
         answering.
         BY MR. OSTROWSKI:
         Q.   Did, did you check out --
                   THE COURT:  State your question and say, answer yes
         or no, if you can.
         BY MR. OSTROWSKI:
         Q.   Did you check out the file retrieval system on the Quick
         Basic Larry James version before it went to market?
         A.   No, I did not.
         Q.   Okay.  And you didn't check out the individual components
         on the CD ROM, the various programs, the 5,000, either?
         A.   Yes, we did.
         Q.   You did?
         A.   We -- yes.
                   THE COURT:  Who's we?
                   THE WITNESS:  Pardon.
                   THE COURT:  You said, we did.
                   THE WITNESS:  At that time, that disk, it was myself,
         and my son was working on it in the evenings.
                   THE COURT:  Your son?
                   THE WITNESS:  My son.
                   THE COURT:  What's his name?
                   THE WITNESS:  Donald.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, you have a very efficient file retrieval
         system, is that correct?
         A.   That's correct.
         Q.   The purpose of which is to look at the individual programs
         on the screen and be able to use them easier, is that correct?
         A.   That's on a CD ROM, correct.
         Q.   Okay.  Well, that's what we're talking about, CD ROM's,
         but, prior to the distribution of these disks, you did not use
         that file retrieval system to see if all the programs were on
         there and in working order?
         A.   That's correct.
         Q.   Okay.  You used something else?
         A.   Pardon?
         Q.   You used something else?
         A.   We didn't have the, we didn't have his program to have put
         on a disk until after the disk was sent in to the plant.
         Q.   What didn't you have?
         A.   We did not have his execute program to put on my disk.  My
         material went to the plant on tape.  When I received the
         program from Larry, it was sent by modem to their bulletin
         board.  They took it off their bulletin board, put the execute
         file on the root of my disk and did the disk.
         Q.   Okay.  That's a pretty sloppy business practice, wouldn't
         you agree?
         A.   No.
         Q.   Okay.
         A.   They fired it up.
         Q.   You know a lot about copyright law, is that correct?
         A.   No, I do not.
         Q.   You do not?
         A.   No, I don't.  I'm learning.
         Q.   Didn't you show Mr. James some book or piece of paper with
         copyright information on it?
         A.   I sure did.
         Q.   Okay.  And where, what piece of paper was that, by the
         way?
         A.   It was a TX form.
         Q.   I'm sorry?
         A.   The TX form.
         Q.   And what is a TX form?
         A.   TX form is where you file your registration for copyright.
         Q.   I'm sorry, it's what?
         A.   Your form that you fill for your copyright, your
         registration.
         Q.   Do you have, is that one of the Exhibits, or is that
         different?
                   THE COURT:  Supposedly 14, 15 and -- 13, 14, and 15.
         BY MR. OSTROWSKI:
         Q.   And what part -- do you know which form you showed?  I
         have Plaintiff's 14, 15 --
         A.   They're all the same.
         Q.   -- and 13.  Do any of, are any of those the form you
         showed to Mr. James?
         A.   This one right here.
         Q.   You showed him Plaintiff's 13, any particular part?
         A.   I showed him that right there.
         Q.   You showed him the section that says, under the law the
         author of the work --
         A.   -- made for hire, is usually the employer.
         Q.   Well, why don't you read what you told him.
         A.   Under the law the author of a works made for hire
         generally is the employer.
         Q.   Can I see that?  And have you ever, have you ever done any
         other research in copyright law?
         A.   Just to call the office four times.
         Q.   Have you done any research?
         A.   No, sir, I have not.
         Q.   You haven't looked at any statutes?
         A.   No, sir, I have not.
         Q.   Was it your point in showing him this that since you paid
         him, you owned the copyright?
         A.   He should have known that.
         Q.   Well, can you answer the question?
         A.   What was the question?
         Q.   Was it your point in showing him this notice that since
         you paid him, you owned the copyright?
         A.   Yes, sir.
         Q.   Okay.  You paid Folio, didn't you?
         A.   Yes, sir.
         Q.   And did you own the copyright?
         A.   No, sir.  And I understood that.
         Q.   Well, just answer the question, please.  Your attorney can
         rescue you on redirect.  Now, you, you said you -- how did you
         get a copy of the file retrieval on Storm One?
         A.   Robert Depew sent it to me.
         Q.   How?
         A.   UPS or Federal Express, overnight.
         Q.   What format?
         A.   On a floppy disk.
         Q.   The source codes?
         A.   No, sir, with no source codes.
         Q.   Oh, you didn't see the source codes?
         A.   Oh, no, sir, no.
         Q.   Oh.
         A.   It's Storm One.EXE.
         Q.   I see.  Now, what, what is the -- could you give us an
         idea of what kind of information you have on these CD ROM's,
         what kind of programs, just give us an example?
         A.   Games, communications.
         Q.   Communications?
         A.   GIF pictures.
         Q.   What kind of communications programs do you have?
         A.   Modeming programs, telex, Q-modem.
         Q.   That would allow somebody to set up a FAX machine
         possibly?
         A.   No, sir.
         Q.   Allow them to set up a telex?
         A.   That's another -- pardon?
         Q.   A telex?
         A.   Telex is a communications program that allows you to call
         from computer to computer across the phone lines.
         Q.   Okay.  And now, you're not responsible for what people do
         with that information, are you?
         A.   No, sir.
         Q.   Okay.  Say if they committed bank fraud with it?
         A.   No, sir.
         Q.   Not on your card?
         A.   I hope not.
         Q.   Okay.  Now, what is -- tell us about this company called
         C.A.R.R.S.  What is that all about?  You said that that's how
         you got your start?
         A.   That's --
         Q.   It's C.A.A.R.S., is that correct?
         A.   Are there periods?
                   THE COURT:  C.A.R.R.S., isn't it?
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE WITNESS:  Are there periods?  Are there periods?
                   MR. OSTROWSKI:  I don't know.
                   THE WITNESS:  Well, there was two C.A.R.R.S.  One was
         C.A.R.R., like that.  That was Computer Assisted Records
         Retrievals.  That was Kenny Helinski.  He owned that
         corporation.
         BY MR. OSTROWSKI:
         Q.   He owned it?
         A.   Yes, sir.
                   THE COURT:  Who was that?
                   THE WITNESS:  Kenny Helinski.
                   THE COURT:  Helinski?
                   THE WITNESS:  Helinski, yes, sir.
         BY MR. OSTROWSKI:
         Q.   And you, you were an employee?
         A.   Yes, sir, I was.
         Q.   And what were the assets of that company?
         A.   I have no idea.  I didn't belong to it.
         Q.   Well, did it have an office?
         A.   Had a post office box.
         Q.   Okay.  Did it have any equipment?
         A.   No.  My equipment.
         Q.   It was your equipment?
         A.   My equipment.
         Q.   Okay.  He owned the company but it was your equipment?
         A.   Yes, sir.
         Q.   Okay.  What happened to him anyway?
         A.   Pardon?
         Q.   What happened to Kenny?
         A.   My opinion.  What happened to him?  I don't know.
         Q.   You don't know, you were working for the man and then,
         isn't it correct that then you sort of took over the company?
         A.   Well, we -- you want me to tell you why I don't work with
         him?
         Q.   Yeah.
         A.   Okay.  We went to a Comdek show and I found out he was
         pulling a scam, and I didn't want no part of it, so I got out.
                   THE COURT:  Found out what?
                   THE WITNESS:  A scam.  He was trying to make $100,000
         so he could have himself frozen.  He was doing a scam and I
         found out about it and I got away from him.
         BY MR. OSTROWSKI:
         Q.   Okay.  But you ended up with the company?
         A.   No.  I did not end up with his company.
         Q.   Well, you're doing business under his company name?
         A.   No, sir.
         Q.   Aren't -- weren't you initially?
         A.   No, sir.
                   THE COURT:  Wait a minute.  Wait a minute.  One at a
         time.  Wait for the question, then wait for the answer.
                   THE WITNESS:  My name was different.
         BY MR. OSTROWSKI:
         Q.   Your name was different how?
         A.   Mine was C-A-R-R.
         Q.   Yours was C-A-R-R?
         A.   I don't remember now, but I know we took the periods out
         because we went downtown and put in a business certificate for
         it.
         Q.   You took his company name?
         A.   No, I did not take his company name.
         Q.   Well, how was it different?
         A.   Pardon?
         Q.   How --
                   THE COURT:  No S for system.
         BY MR. OSTROWSKI:
         Q.   How was your name different from his?
                   THE COURT:  No S for system.
                   MR. OSTROWSKI:  Is that what his answer was?
                   THE COURT:  C-A-R-R, right?
                   THE WITNESS:  Pardon?
                   THE COURT:  Yours was C-A-R-R?
                   THE WITNESS:  Yes, sir.
                   THE COURT:  His was C-A-R-R-S.
                   THE WITNESS:  Yes, sir.
                   THE COURT:  The S is for system.
                   THE WITNESS:  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   Now, when you pay -- did you testify that you pay a fee
         for shareware?
         A.   Yes, sir, I do.
         Q.   You don't own that though, do you?
         A.   Pardon?
         Q.   Do you own the shareware?
         A.   No, sir, I do not.
         Q.   But you pay for it?
         A.   Yes, sir, I do.
         Q.   You seem to know a lot more about computers today than you
         did in the preliminary hearing.  Have you been studying books,
         and so on?
         A.   No, sir, I have not.
         Q.   Okay.  Do you know what DOS stands for?
         A.   DOS is an operating system.
         Q.   Do you know what DOS stands for?
         A.   No, I do not.
         Q.   Do you know what an acronym is?
         A.   No, I do not.
         Q.   Okay.  Do you know what the letter D in DOS stands for?
         A.   No, I do not.
         Q.   What programming languages do you know?
         A.   Do I know of, or do I know how to write?
         Q.   Do you know how to run?
         A.   Languages I know to run?  Just C Plus --
         Q.   Do you know what a programming language is?
         A.   Yeah, C Plus Plus or Quick Basic.  All I know how to use
         is C Plus Plus.
         Q.   Do you recall being asked what a programming language was
         back at the preliminary hearing?
         A.   Yes, I do, vaguely.
         Q.   Do you recall what your answer was?
         A.   No, sir, I do not.
         Q.   Did you say, oboy?
         A.   Oh, probably, right, yeah, because I don't know what the
         programming languages are.
         Q.   Is it possible you said oboy in response to that question?
         A.   It could be.
         Q.   It's kind of a tough question, isn't it?
         A.   It was then, yes.
         Q.   What programming languages do you know how to use?
         A.   I can use C Plus Plus, but I do not write in it.
         Q.   You can read it.  Can you read it?
         A.   Some.
         Q.   Anything else?
         A.   That's it.
         Q.   Now, you know what a licensing agreement is, don't you?
         A.   Yes, I do.
         Q.   You seemed to have some trouble with that at the
         preliminary hearing.  Do you now understand what it is?
         A.   I sure do.
         Q.   And what is it?
         A.   A license agreement is something that you license somebody
         to use.
         Q.   Well, how does that work?  Do you pay the --
         A.   Otherwise you don't --
         Q.   You pay somebody but you don't own the pro --
                   THE COURT:  Wait a minute.  Wait for the question.
         BY MR. OSTROWSKI:
         Q.   You pay somebody but you don't own the program?
         A.   You don't own the program, no.
         Q.   Okay.  That's a familiar concept to you?
         A.   With Folio, yes.
         Q.   And that was before you got involved with Larry James,
         right?
         A.   Yes.
         Q.   Now, you stated that you're not a programmer, is that
         correct?
         A.   That's right.
         Q.   And when you were working on your first version of the
         file retrieval program you looked at some books?
         A.   Yes, sir, I did.
         Q.   And what books did you use?
         A.   Basic.
         Q.   How did you use those books?
         A.   Looked through them, looked for different routines, looked
         through the indexing.  The indexing to tell me how to find
         certain calls and certain things I needed to know.
         Q.   They have the, they have the routines in the book?
         A.   They have formulas.
         Q.   With -- in what format, the source codes?
         A.   In source, yes.
         Q.   You copied some of those, didn't you?
         A.   I sure did.
         Q.   In fact, isn't it true that your sole contribution to the
         Jeff Anderson program was a few source codes that you copied
         from books?
         A.   No, sir, it was not.
         Q.   Oh.  How so?
         A.   Pardon?
         Q.   Explain that.
         A.   Because Jeff never added the copy command, the PK.UNZIP,
         the view, the extra screen that I had made with all that
         source.  That was never put in.
         Q.   Okay.  What are the programs -- what are the programs that
         you contributed to Jeff Anderson's program?
         A.   The home key to exit to DOS, to shell to DOS.
         Q.   And where did you get that from?
         A.   Out of the DOS manual, out of some of the manuals that I
         had.
         Q.   You copied it, right?
         A.   Pardon?
         Q.   You copied it?
         A.   No.  Not word for word because I don't know the command
         for it.
         Q.   Okay.  You don't know the what for it?
         A.   The command, to shell.  The shell is not a copyrighted
         command.
         Q.   Please, just answer the question that I'm asking you.
         A.   Okay.
         Q.   Okay.  So you added, one of the programs you added to Jeff
         Anderson's program was shell to DOS, and you copied that more
         or less out of a book?
         A.   No, sir, I did not.
         Q.   Okay.  You got the idea for it out of a book?
         A.   No, I did not.
         Q.   Okay.  Just thought it up yourself, right?
         A.   No.  I went for the help file in the program and it tells
         you how to shell to DOS.
         Q.   Okay.  So that's not your idea?
         A.   It was my idea to do what I wanted.
         Q.   The program that you, that you used, after looking at the
         help file, that wasn't your idea?
         A.   It was my idea to do what I wanted.  That's where I needed
         a shell.
         Q.   Is it your idea to do what you want?
         A.   What do you mean, is it my idea to --
         Q.   Well, that's what you just said.  It was my idea to do
         what I wanted, and I'm simply --
         A.   It was my idea to shell --
         Q.   -- since your answering --
                   THE COURT:  Wait a minute.
         BY MR. OSTROWSKI:
         Q.   Since you're answering the question I'm not asking, I'm
         going to ask you the question that you're answering.  Is it
         your idea to do what you want?
         A.   At that time with that exit, yes.
         Q.   Now that we've answered that, whatever that means, the
         information that you got off the help screen to do shell to DOS
         was not your information, right?
         A.   A shell to DOS can be done by anybody.  The shell to DOS
         was to pull up another program and that's what I did.
         Q.   Shell to DOS is a DOS program, isn't it?
         A.   No.  Shell to DOS is not a DOS program.
         Q.   But you got --
         A.   It's a part of Quick Basic.
         Q.   But you got it from the help screen?
         A.   I got it from the Quick Basic program.
         Q.   What else did you add to Jeff Anderson's program?
         A.   The documentations, the text files.
         Q.   Well, slow down.  What is the documentation?
         A.   Documentation, text files, tells what, how to use the
         program.
         Q.   What -- okay.  Well, that's not part of the program
         itself, is it?
         A.   It is.
         Q.   The documentation?
         A.   It is.
         Q.   Well, when you, when you execute the program, the computer
         is not reading this general instruction to the reader?
         A.   No.
         Q.   Correct?
         A.   No.
         Q.   So in that sense, it's not part of the program?
         A.   We consider it part.
         Q.   Okay.  But it is not, in fact, a computer program?
         A.   No, not the text file, no, it's not.
         Q.   It's not a function that tells the computer to do
         something?
         A.   Not the text files, no.
         Q.   Okay.  What else did you add to Jeff Anderson's program?
         A.   When I shelled to DOS, we also typed out what their
         commands was to do.  Otherwise they had another screen that
         told them exactly how to use the program.
         Q.   Okay.  I'm sorry.  I didn't follow that?
         A.   When they shelled to DOS, it would come up and say exactly
         how to use the PK.UNZIP command, what they're supposed to do.
         Then when they got through doing whatever they did at DOS, they
         would type exit.  They'd be back in our program.
         Q.   Well, what I'm asking you is, you said our program.  It's
         really Jeff Anderson's program, isn't it?
         A.   Not really.
         Q.   Well, isn't that what you testified to at the preliminary
         hearing?
         A.   Well, he gave it to me.
         Q.   Well, you testified you're not a programmer?
         A.   That's right.
         Q.   And that you asked him to write a program, correct?
         A.   That's right.
         Q.   And he wrote one?
         A.   Right.
         Q.   It's his program?
         A.   It's his program.
         Q.   Did you pay him?
         A.   No, I did not.
         Q.   Did you get a written contract from him stating that he's
         transferring ownership to you?
         A.   No, I did not.
         Q.   Did you try to, by the way?
         A.   Well, yeah.
         Q.   You did, didn't you?
         A.   Yes, I did.
         Q.   When was that?
         A.   Back in 1992 when I went to see a copyright attorney.
         Q.   It was after the preliminary hearing, wasn't it?
         A.   Right.
         Q.   Now, of course, in that first Affidavit -- you know what
         an Affidavit is, don't you?
         A.   Vaguely.
         Q.   Do you know that it's a sworn statement under oath for
         which you could be charged with a crime if you're lying
         intentionally?
         A.   Yes.
         Q.   Did you fill out an Affidavit when you first came to
         Court?
         A.   In Denis Kitchen's office, yes.
         Q.   And did you make reference in that Affidavit to the Jeff
         Anderson program?  What I'm asking you is, did you refer to
         that original Quick Basic program that you and he had been
         working on, in your Affidavit?
         A.   I haven't looked at the Affidavit in over two years.
         Q.   Okay.  Well, we'll cure that.  Showing you Defendant's
         Exhibit 5 for identification, do you see Order to Show Cause on
         the front?
         A.   Yes, sir.
         Q.   Do you see an Affidavit?
         A.   Yes.
         Q.   I'd ask you to look at the Affidavit and glance through
         it, see if you see anything about that Quick Basic program.
         A.   What am I supposed to be looking for?
         Q.   Well, what I'm asking you is, did you make some statements
         in that Affidavit about the authorship of that program, the Q,
         Quick Basic program that you and Jeff Anderson worked on?
         A.   I don't see where me and Jeff Anderson is in here.  If I
         can find that I'll --
         Q.   Well, let me ask you that.  Is Jeff Anderson's name in
         there?
         A.   I have no idea.
         Q.   Well, I'm asking you to look through the Affidavit.  This
         is the Order to Show Cause, that's why I pointed that out.
         This is the -- that's not something you wrote.  The Affidavit
         starts here.  This is the second page, third page.  There's
         three pages and 10 paragraphs.  Anything about Jeff Anderson in
         the Affidavit?
         A.   Yeah.  We went over this.  No, he's not.
         Q.   Okay.  Anything about who the author of that program is in
         the Affidavit?
         A.   In the -- no, there's not.
         Q.   There's not?
         A.   I don't think, although it probably says me.
         Q.   This is your Affidavit, by the way, isn't it?  Signed by
         you?
         A.   Yes, sir.  That's signed by me.
         Q.   Are you familiar with it?
         A.   No, I'm not familiar with it.  I don't have it to read
         every day.
         Q.   Well, by familiar I mean as opposed to something I'd pull
         out of my pocket.  You're not familiar with my wallet, are you?
         Ever see it before?
         A.   No, I have not.
         Q.   Okay.  Ever see this before?
         A.   Yes, I have.
         Q.   Okay.  So you're familiar with it, is that correct?
         A.   No.  It's been over two years.  No, I'm not.
         Q.   Oh, okay.  You're not familiar with it.  It's your
         Affidavit though?
         A.   Yes.
         Q.   Did you sign it in Denis Kitchen's office?
         A.   Yes.
         Q.   Did you say in paragraph 5, in or about the past year I
         wrote and prepared a certain computer program commonly known as
         Night.EXE?
         A.   Yes.
         Q.   For use as a file retrieval -- as a retrieval system to be
         utilized in a mass produced CD ROM, is that correct?
         A.   Yes, sir.
         Q.   Okay.  And did you say in paragraph 6, the computer
         program which I wrote was an original work prepared in Basic
         language?
         A.   Yes, sir.
         Q.   That's a lie, isn't it?
         A.   Well, when somebody gave you something, I didn't know.  It
         was given to me, so I wrote it.
         Q.   That's a lie.
         A.   I wrote in it.
         Q.   That's a lie, isn't it?
         A.   Not totally.  I wrote in it.
         Q.   It's a partial lie?
         A.   I guess you could say it is, now that it's pointed out,
         yes.
         Q.   Okay.  Now let's figure out how partial it is.  The fact
         of the matter is, you added very little to the program that
         Jeff Anderson worked on, isn't that correct?
         A.   Yes, sir.
         Q.   So to the extent we talked about a partial lie, I guess
         the lie would be even bigger as Jeff Anderson's role in
         developing the program gets bigger, is that correct?
         A.   He did more, yes, right.
         Q.   Okay.  So it's kind of, it's a big lie because he did most
         of the program, correct?
         A.   Yes, he did most of the program.
         Q.   Okay.  It's a big lie.  It's a big lie, isn't it?
         A.   If you want to consider it a big -- yes, it is.
         Q.   Well, no.  I'm not doing anything here.
         A.   Yes, it is.
         Q.   I'm not testifying.  Okay.  Now, who's that fellow again,
         there's a Ken or Greg.  Ken or Greg?
         A.   Ken?
         Q.   Yeah.
         A.   Helinski.
         Q.   You took the name of his business, didn't you?
         A.   No, I did not take the name of his business.
         Q.   You took most of it, didn't you?
         A.   No, I did not.
         Q.   Sounds familiar, doesn't it?
         A.   Pardon?
         Q.   Your name and his name?
         A.   No.
         Q.   Okay.  C.A.R.R.S. and CARRS doesn't sound alike?
         A.   He's the one who gave up the business, not me.
         Q.   Okay.  Now, let's talk about another element of your
         Affidavit.  You say in paragraph 6, it was an original work, is
         that correct, prepared in Basic language?
         A.   Yes.
         Q.   But you've already testified that you took various
         elements out of a book, a Basic book?
         A.   I didn't say I wrote the Basic code out of a book.
         Q.   I know, but you took some of the stuff out of a book,
         didn't you?
         A.   That's where I learned, yes.
         Q.   Did you look at the copyright notice on the book?
         A.   Yes, I did.
         Q.   Did it allow you to take stuff?
         A.   I didn't write all the book.  They gave you examples.  I
         used their examples.  I didn't --
         Q.   You used their examples.
         A.   -- use their examples.  They give --
         Q.   Their examples -- sorry.
         A.   Like one plus one is two.  They show you how to do it.
         That's how I did it.  Not exactly the way they did it.
         Q.   Well, you weren't picking up the book to find out that one
         plus one is two, were you?
                   MR. KITCHEN:  Your Honor, I have to object.  This
         whole line of questioning is aimed at the idea that if an
         example is given of how to do something in a copyrighted book,
         if the person does what the book suggests that the reader do,
         that the person has now violated the copyright laws of the
         book.
                   MR. OSTROWSKI:  Well --
                   THE COURT:  He's not really concerned about the
         substance of that.  He's merely trying to demonstrate to the
         Court if he can that somehow Mr. Graham is an abysmal liar.
         He's trying to do that.
                   MR. KITCHEN:  Yes, I know, but --
                   MR. OSTROWSKI:  Your Honor, I'm also trying to
         demonstrate that the essential element of a copyrightable idea,
         originality --
                   THE COURT:  And a robber.
                   MR. OSTROWSKI:  -- is not present here.
                   THE COURT:  And a robber.  A liar and a robber.
                   MR. OSTROWSKI:  Yes, Your Honor.
                   MR. KITCHEN:  But Your Honor, if I want, if I want to
         execute --
                   THE COURT:  He's a cross examiner, Mr. Kitchen.  He
         has some leeway.  Give it to him.  If he abuses it, I'll step
         on him.  I'll join you in stepping on him.
                   MR. KITCHEN:  The leeway is bordering on license,
         Your Honor.
                   MR. OSTROWSKI:  Well, I, I could be --
                   THE COURT:  Well, the cross examiner has a certain
         license.
                   MR. OSTROWSKI:  I'd be happy to respond to that, but
         I take it Your Honor doesn't want me to.
                   THE COURT:  Go ahead.  Go ahead.
         BY MR. OSTROWSKI:
         Q.   You said in your Affidavit that the program was an
         original work, is that correct?
         A.   Yes, sir.
         Q.   But you got some of the important ideas from it that --
         the small part that you wrote, from a book?
         A.   Well, first off, the creation was not from the book.
         Q.   I think --
         A.   I had to go to the book to find out how to do things, to
         find out how to do what I wanted to.
         Q.   Right.
         A.   That's like going to Spanish school to learn how to speak
         Spanish.  I have to be taught.
         Q.   Okay.  And they taught you --
                   THE COURT:  Your idea is, no one would write a book
         telling people how to do things if they didn't want people to
         read it and do things.
                   THE WITNESS:  Yes, sir.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   Okay.  You don't know whether you violated the copyright
         on that book though, do you?
         A.   No, sir.  I don't think I had.
         Q.   But in any event, you got the idea for shell to DOS from
         a book?
         A.   No, I did not.
         Q.   Okay.  Well, we've been over that.  What other elements of
         the Jeff Anderson program did you come up with yourself, other
         than the documentation and shell to DOS?
         A.   Jeff Anderson asked me what I wanted.  I told him what I
         wanted.
         Q.   Okay.  Let me ask you this.  Did Jeff Anderson ask you
         what he wanted?
         A.   Did he ask me what I --
         Q.   Ask you what you wanted?
         A.   No.  I told him what I wanted.
         Q.   You just said he asked you what you wanted?
         A.   Well, yeah, after I told him what I wanted.
         Q.   Okay.
         A.   Can you do this.
         Q.   Okay.  Now that we've established, I just want to ask you
         the questions of the answers that I didn't ask you in the first
         place, just so we could move on.  What else did you add to the
         Jeff Anderson program, other than shell to DOS and the
         documentation, which is not a program?
         A.   Nothing.
         Q.   Okay.  Now, let's talk about Brian Martin, who oddly
         enough is also the name of my brother-in-law.  But Brian
         Martin, you hired him after you had the falling out with Larry,
         is that correct?
         A.   Yes, sir.  That's correct.
         Q.   And I believe you testified that he completely rewrote the
         program?
         A.   That's correct, after a while.
         Q.   I'm sorry?
         A.   After a while he did rewrite the program.
         Q.   Well, let me show you Defendant's Exhibit 3.  Can you
         identify that document?  Are you familiar with --
         A.   Yes, sir.
         Q.   And what is that?
         A.   That's Brian Martin's code, but that was --
                   THE COURT:  Brian Martin's what?
                   THE WITNESS:  Brian Martin's code.
                   THE COURT:  Code?
                   THE WITNESS:  Yes, sir.
                   MR. KITCHEN:  Your Honor, I have an objection which
         albeit might be a little premature.
                   THE COURT:  Might be, because nothing's been offered.
                   MR. KITCHEN:  Well, I understand that, but I am
         concerned over the, the let's say careless use of something
         that is clearly proprietary, that has been the subject of some
         discussion before, and has been determined that  would be --
         its use and showing it would be limited by the non-disclosure
         agreement.  This is one of those pieces of information that's
         subject to the non-disclosure agreement.  So, I'm, I guess I
         want to --
                   THE COURT:  Is there anyone in the room to whom it
         may not be disclosed?
                   MR. KITCHEN:  Well, actually, yes, quite a few
         people, most notably the defendant.  But --
                   THE COURT:  Oh.
                   MR. KITCHEN:  -- and for that reason, I don't
         necessarily object to Mr. Ostrowski asking questions about it.
         Just so that it, we don't get to a point where therefore --
                   THE COURT:  If he gets to that point, which he will
         recognize, you say, then maybe Mr. James should leave the room,
         is that what you're saying?
                   MR. KITCHEN:  Well, if that's required.  And the
         other thing, of course, is, I wouldn't want it simply admitted
         into evidence in such a way that it's going to be --
                   THE COURT:  It hasn't been offered.
                   MR. KITCHEN:  Right.  That's true, but if it were, we
         would want the privacy of it to be retained somehow.  That's
         why, I'm bringing that up now and I don't know if it's going to
         be an issue, but potentially it is.
                   THE COURT:  Mr. Ostrowski is forewarned.
         BY MR. OSTROWSKI:
         Q.   Did you say you filed a d/b/a for CARR?
         A.   Yes, sir.
         Q.   Where?
         A.   I think I filed it.  I'm not positive.  I'm pretty sure I
         thought --
         Q.   Well, didn't you say you filed?
         A.   I -- well, I know I filed it for the Night Owl's Computer
         Service.
         Q.   Well, didn't you say you filed something for CARR?
         A.   CARRS was not there, yeah, CARRS was not there that long.
         Q.   Oh, so you didn't file anything for CARR?
         A.   It may not have been filed, right.
         Q.   What does CARRS stand for?
         A.   The actual C.A.R.R.S. of Kenny's business was C.A.R.R.S.,
         and it's Computer Assisted Records Retrieval System.
         Q.   And what is --
         A.   Mine stood for --
         Q.   -- CARR?
         A.   -- cars because I was a mechanic.
         Q.   Oh, okay.  C-A-R?
         A.   No.  Well, you can't spell car C-A-R-R, I just added the
         extra R because I said, it's close to cars, you know, racing
         cars.
         Q.   You wanted to be as close as possible to the other guy's
         name?
         A.   No, no.
         Q.   No, you didn't want to be?
         A.   No, I didn't.
         Q.   Okay.
                   THE COURT:  What you did was change Helinski's
         capital S for system to a small s for system.  You were CARR,
         all capitals, and then a small system.
                   THE WITNESS:  No, we didn't even use the S.
                   THE COURT:  But there was a system.
                   THE WITNESS:  Pardon?  It was a system.  Correct.
                   THE COURT:  Yes.
                   THE WITNESS:  What it was is, we --
                   THE COURT:  Generically it was a system.
                   THE WITNESS:  Yes.  Oh, yes, I had a d/b/a.
                   MR. OSTROWSKI:  I don't have one.
                   THE WITNESS:  I just remembered, I had, I had a, I
         have my checkbook.
         BY MR. OSTROWSKI:
         Q.   Okay.  I'm showing you Defendant's Exhibit 3 again.  Now,
         you gave that to Mr. Kitchen, didn't you?
         A.   Yes, sir.  That's my handwriting at the top.
         Q.   To give to me?
         A.   Yes, sir.
         Q.   That's your handwriting?
         A.   Yes, sir.
         Q.   And what does that say?
         A.   12/3 -- or, 12/13/91, completed source codes of Brian
         Martin, Brian's work.
         Q.   Brian's work and Brian --
         A.   Right.
         Q.   -- refers to Brian Martin?
         A.   Yes, sir.
         Q.   And this is the program that he rewrote?
         A.   Yes, sir.
         Q.   And what -- feel free to use the Exhibits.  What -- I take
         it -- well, let me, let me not get ahead of myself.
                   THE COURT:  Mr. Kitchen will be alert to what
         shouldn't be put in the courtroom air, if anything.  If
         anything.
                   MR. KITCHEN:  Right.  You know, actually I'm not --
                   MR. OSTROWSKI:  It's all Greek, Your Honor.
                   MR. KITCHEN:  It does appear that way.  And I'm not
         sure the reference --
                   THE COURT:  Well, this is what Mr. Kitchen is saying,
         and the only thing, person who can't hear it is unfortunately
         the only person in the room who can probably understand this,
         quote, Greek, unquote.
                   MR. OSTROWSKI:  Your Honor, I am aware of the
         confidentiality agreement, believe me, and I have not shown it
         to Mr. James.  I do intend to offer it into evidence with a
         proper foundation at the right time.
                   MR. KITCHEN:  Well, that may in and of itself be
         appropriate, Your Honor, but certain safeguards should be taken
         then.
                   THE COURT:  You're going to be watchful and I will
         help you.
                   THE WITNESS:  When that code was turned in.
         BY MR. OSTROWSKI:
         Q.   Well, I don't think I have asked a question.  Is this
         source code -- this is the source code of a file retrieval
         system, right?
         A.   Of what retrieval system?
         Q.   File retrieval system?
         A.   Yes, sir.
         Q.   Okay.  And did you use this on any of your releases?
         A.   On this one, yes.
         Q.   Which one?
         A.   I'm positive it's on 6-1.
                   THE COURT:  006-1?
                   THE WITNESS:  Yes, sir.
                   MR. OSTROWSKI:  Is that an Exhibit, does anybody
         know?
                   THE WITNESS:  Yes.  I think it's here.
                   MR. KITCHEN:  Exhibit 24.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, on my sheet, Exhibit -- could you read the --
         could you grab the Exhibit, please, 24, I believe.
         A.   That's 6-1.
         Q.   What does that note say that's attached to the --
         A.   Oh, date.
         Q.   Can I just see that?  So the source code that you, that's
         Defendant's 3 ends up on CD ROM Plaintiff's Exhibit 24 PDSI-
         006-1?
         A.   I'm not absolutely positive which code it went on because
         I went through them last night and brought that in.
         Q.   Okay.   Now,  you just said a few minutes ago that Brian's
         code --
         A.   I think it's --
                   THE COURT:  Wait a minute.  Wait for the question.
         BY MR. OSTROWSKI:
         Q.   -- Brian's code is on PDSI-006-1, which is Plaintiff's 24?
         A.   I think it's 6-1.  I can't be positive.
         Q.   Is it on any --
                   THE COURT:  Wait a minute.  Speak into the
         microphone.  Speak up.
                   THE WITNESS:  I think it's 6-1 but I can't be
         positive.
         BY MR. OSTROWSKI:
         Q.   Okay.  It's probably 6 --
         A.   I know it's on one of them.
         Q.   -- 6-1?
         A.   It's 6 or up.
         Q.   And is it on any others?
         A.   No, not that -- not this code here.
         Q.   And --
         A.   At the time this code is the code I turned in to Denis
         Kitchen.
         Q.   What's the distribution date, what's the release date of
         Plaintiff's 24?  Can you tell from looking at the Exhibit, or
         from memory?
         A.   I don't think so.  Close by memory.  Well, if this got,
         this disk got recut, it's got a 5/92 date on this disk.  Okay.
         So this means --
                   THE COURT:  5 what?
                   THE WITNESS:  -- that this disk went out 5 --
                   THE COURT:  Excuse me?  What, Mr. Graham?
                   THE WITNESS:  The date of 5 of '92.  Okay.
         BY MR. OSTROWSKI:
         Q.   It went out May '92?
         A.   Yes, sir.  That's what it says on this disk.  Now, this
         may have been a remastered 6-1.
         Q.   Okay.  What does that mean?
         A.   That means that this disk could have been manufactured
         originally in January of 1992.
         Q.   Is there any way you can find that out right now or --
         A.   Not right this second, no.
                   THE COURT:  You say Plaintiff's 24 may be a recut
         disk?
                   THE WITNESS:  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   I'd ask, Your Honor, that he produce the original, if
         there's another, if there's an earlier version.
         A.   The original's been recalled.
         Q.   Why were they recalled?
         A.   They were all recalled.
         Q.   Why?
         A.   Because we had problems with the retrieval and we also had
         problems with the commercial program.
                   THE COURT:  And destroyed, or not?
                   THE WITNESS:  Destroyed.  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   Brian's rewritten code, right?
         A.   Yes, sir.  I think.
         Q.   Oh, you think?
         A.   I don't know until I've looked at the actual disk.
         Q.   You think we could --
                   MR. OSTROWSKI:  Your Honor, I'd ask that he be
         directed to bring that in then.
                   THE COURT:  If available, yes.
                   MR. OSTROWSKI:  Thank you, Your Honor.  Okay.
                   MR. KITCHEN:  Your Honor, if he's already testified
         that the original ones were destroyed --
                   THE COURT:  No, he doesn't know.
                   MR. KITCHEN:  Oh.
                   THE COURT:  If available, bring it in.  If not,
         obviously you can't.
         BY MR. OSTROWSKI:
         Q.   This Plaintiff's 24 goes out May '92, correct?  That's
         what you just said?
         A.   That's what's on, the date on that disk, yes.
         Q.   Okay.  It's your company, right?
         A.   Yes.
         Q.   You're the boss?
         A.   Yes.
         Q.   It's your disk?
         A.   Yes.
         Q.   Is the date right?
         A.   On that disk?
         Q.   Is the date right on your disk?  It's yours, here.
         A.   On this that I just put on last night, but being tired, I
         don't know.  It might have been '91.  I put 5 --
                   THE COURT:  Oh, last night you put it on.
                   THE WITNESS:  Yes, sir.  Last night I wrote 5/20/92
         because I did, I did all these disks last night that I had at
         home, and I said, well, this one is this date, this one is that
         date.  I might have miswrote it.  But --
                   MR. OSTROWSKI:  Okay.
                   THE WITNESS:  -- it should be 5 of '92.
                   MR. OSTROWSKI:  I assume, Your Honor, that the slip
         of paper is part of the Exhibit.
                   THE COURT:  I don't know.
                   MR. OSTROWSKI:  Since it's in there.
                   THE COURT:  I have a basic problem with, people come
         in, they have Exhibits in folders and glassene envelopes and so
         forth, and they're always putting the sticker on the folder or
         the envelope, and then, of course, you never know whether
         there's going to be an interchange of the Exhibit itself, which
         doesn't  have the marker.  Here we have a specialized problem
         and I'm just hoping that people for example don't take one
         compact disk out of one jewel case and put it into another one,
         the disk itself not having any Exhibit marker on it.
                   MR. OSTROWSKI:  Well, Your Honor, there are, it
         appears to be that in at least two of the Exhibits there are
         slips of paper obviously written by Mr. Graham.  I would ask
         that --
                   THE COURT:  I understand that.  You want to mark
         that?  I would think you would mark that separately, taking for
         example that slip from Plaintiff's Exhibit 24 and make it 24-A,
         if you want to, if you want to preserve the integrity of it.
                   MR. OSTROWSKI:  May I make that a Defendant's Exhibit
         or --
                   THE COURT:  No.
                   MR. OSTROWSKI: -- if Denis wants to do it, I don't --
                   THE COURT:  Because -- no, this will tie it in.  It
         doesn't matter to me.  You don't have a jury here.
                   MR. OSTROWSKI:  Can I --
                   MR. KITCHEN:  That's fine, it's perfectly fine if you
         want to mark them accordingly.
                   MR. OSTROWSKI:  Yeah.  Well, I certainly want to mark
         24.  Do you have a --
                   THE WITNESS:  Can I take my yellow paper off?
                   MR. OSTROWSKI:  Well, he's disturbing the Exhibits,
         Your Honor.
                   THE WITNESS:  Can I take my yellow paper off?  If I
         put them in, they weren't Exhibits before.
                   THE COURT:  Now it's an Exhibit.
                   THE WITNESS:  Well, then let me take my paper then.
                   THE COURT:  Well, give it -- he's got to put a
         sticker on it.
                   THE WITNESS:  Oh, okay.  Then I need my paper.
                   MR. OSTROWSKI:  Well, it's an Exhibit, Mr. Graham.
                   THE WITNESS:  Oh.
                   THE COURT:  Give it to Mr. Ostrowski.
                   MR. OSTROWSKI:  We're simply separating.
                   THE COURT:  Now you're going to make it 24-A, right?
                   MR. OSTROWSKI:  This will be 24-A, Your Honor.
                   THE COURT:  Yeah, Plaintiff's 24-A.  Mr. Graham,
         little cue cards you have for yourself.
         BY MR. OSTROWSKI:
         Q.   Okay.  Showing you Plaintiff's Exhibit 24, is there a
         Plaintiff's Exhibit 24-A inside there?
         A.   Yes, sir.
         Q.   And is that your handwriting?
         A.   Yes, sir.
         Q.   Your note about the date of Plaintiff's 24?
         A.   Yes, sir.
         Q.   And is this still being sold?
         A.   No, sir.
         Q.   When did it stop being sold?
         A.   They were all recalled, even that disk you hold in your
         hand.
                   THE COURT:  Wait a minute now.  The recut one was
         also recalled?
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   When was that?
         A.   All the -- any series that was under the PDSI-006, from 6
         to 6-1, 6-2, were all recalled, any series of the PDSI-006.
         Q.   And when was the last time anybody could have purchased
         one of these?
         A.   We put the recall out over a year ago, or six months ago.
                   THE COURT:  Now, you do have, for example,
         Plaintiff's Exhibit 24 you have as a specimen of 006-1.
                   THE WITNESS:  Right.
                   THE COURT:  Now, although recalled, you still have
         that one around.
                   THE WITNESS:  Right.
                   THE COURT:  There's a probability or a possibility
         then that you may have one of the January 1992 --
                   THE WITNESS:  No.
                   THE COURT:  Why?
                   THE WITNESS:   No, sir.
                   THE COURT:  Why do you have this one when you don't
         have the other one?
                   THE WITNESS:  Because these were in a different
         series.  They were cut at different times.
                   THE COURT:  Oh, I know.
                   THE WITNESS:  So this, the other ones --
                   THE COURT:  You recalled these.
                   THE WITNESS:  Right.  The PDSI-006's were cut first.
         They were recalled.  Then the PDSI-006-1's.
                   THE COURT:  Yeah.  Then you got a 6-2.
                   THE WITNESS:  Right.  No, I'm not sure about a --
                   THE COURT:  You said a 6-2 earlier.
                   THE WITNESS:  Yeah.  It might have been a 6-2.
                   THE COURT:  Might have been a 6-2.
                   THE WITNESS:  Right.
                   THE COURT:  But you recalled both of them.
                   THE WITNESS:  Right, all of them.
                   THE COURT:  Somehow you have a specimen of 6-1.
                   THE WITNESS:  Right.
                   THE COURT:  And you don't have a specimen of 6.
                   THE WITNESS:  I probably could get one.
                   THE COURT:  Well, that's what I mean.
                   THE WITNESS:  Right.  I'm not saying I couldn't get
         one.
                   THE COURT:  Mr. Kitchen's going to get it.
         BY MR. OSTROWSKI:
         Q.   When's the last time anyone could have bought Plaintiff's
         Exhibit 24, the 006-1?
         A.   From me?
         Q.   From anybody?
         A.   It depends if they went by the recall.  I have no idea.
         I can't judge them.  I know we stopped selling them.
         Q.   You mean they're still being sold?
         A.   There's still some in the marketplace, yes.
         Q.   Oh, okay.  So when you said they weren't being sold, that
         was incorrect?
         A.   I said we were not -- no.  I said I wasn't selling them.
         I do not sell them to anybody since that date.
         Q.   They are being sold?
         A.   I've seen it at a show, yes.
         Q.   Okay.  So right up to the present time they're being sold?
         A.   As far as I am aware of, yes.
         Q.   And what was the next release after 6.1 -- 6-1?
         A.   I'm not sure about the 6-2, so I'm going to say 7.
         Q.   What do you mean, you're not sure about the 6-2?
         A.   I'm not sure if I cut a 6-2 because what we did, the very
         next version was 7.
         Q.   Okay.  And when was that?
         A.   7 was cut, I'd have to go to my records and check when I
         had that cut.
                   THE COURT:  Well, Phil Swanson was on that.  Does
         that help you date it?
                   THE WITNESS:  Phil Swanson, he come to work in
         September.
                   THE COURT:  Of?
                   THE WITNESS:  Of 1992.
         BY MR. OSTROWSKI:
         Q.   Okay.  And he wrote a file retrieval program, is that
         correct?
         A.   Yes, sir.
         Q.   Did he use Brian Martin?
         A.   He used Martin's finish code.
         Q.   Well, his what code?
         A.   Finish code.  The code that you looked -- you showed me
         was not the complete code.
         Q.   Well, did you receive a Subpoena requiring you to bring in
         all of these programs?
         A.   We sent that code all to Denis when we were Subpoenaed to
         send it to him, and the date that he received it was, then it
         was fresh, but now it's not fresh no more.
         Q.   And how did the finished code -- well, what's, do you know
         the date of the finish code?
         A.   I'm positive -- well, I'm not positive, I'm not going to
         say positive no more.  Around 5/20 of '92.
                   THE COURT:  You're never going to say positive again,
         huh?
         BY MR. OSTROWSKI:
         Q.   Showing you Defendant's Exhibit 4, do you recognize --
         well, let me just make sure -- do you recognize this document?
         A.   It says it's mine, but man, it's messed up bad.
         Q.   It's really not --
         A.   Oh, okay.  Yes, that's our code.
         Q.   Well, who drafted that?
         A.   I did, but it didn't look like that.
         Q.   You wrote that one?
         A.   I printed it out to my printer, yes.
                   THE COURT:  Say what, this is a code?
                   THE WITNESS:  This was our source code printed out to
         a printer.
         BY MR. OSTROWSKI:
         Q.   That Defendant's Exhibit 4, it's not -- it's pretty much
         unreadable, isn't it?
         A.   Well, yeah.  Somebody's printer didn't work right, copying
         machine didn't work right.
                   MR. KITCHEN:  Well, Your Honor, the codes which I
         submitted to defense counsel, it's subject to the non-
         disclosure agreement.  I have gone ahead and attached some
         Exhibits here and they're on my Exhibit list, although I
         haven't offered them or anything, but I figured it was best to
         identify them.  The particular copy that is Defendant's Exhibit
         4 is essentially a photocopy made in my office of what I have
         designated as Plaintiff's Exhibit 20.
                   MR. OSTROWSKI:  Okay.  I can --
                   THE COURT:  That is said to be a printout of the C
         source code copyright 1992.
                   THE WITNESS:  Yes, sir.
                   MR. KITCHEN:  Correct.
                   MR. OSTROWSKI:  Okay.
                   MR. KITCHEN:  And I would point out, Your Honor, that
         Defendant's 3 with the date of 12/13/91 on it is the photocopy
         submitted to defense counsel of what I have designated as
         Plaintiff's Exhibit 19.  So just for some clarity of some sort.
                   MR. OSTROWSKI:  Okay.  The one copy, Your Honor, I do
         want in because it shows that it's not readable, but more about
         which later.  But I'll --
                   THE COURT:  Well, if this is a copy --
                   MR. OSTROWSKI:  I'm sorry.
                   THE COURT:  Excuse me.  If this is a copy, for
         example, of Plaintiff's Exhibit 20, there's -- well, the
         certainty is that 20 is more readable than 4.
                   MR. OSTROWSKI:  Yes, Your Honor.
                   MR. KITCHEN:  Yes, and as a matter of fact, Your
         Honor, I would offer to perhaps exchange our 20 for, for that
         4.
                   THE COURT:  Well, I don't see why we're using two
         copies of the same Exhibit.
                   MR. OSTROWSKI:  Well, with this particular Exhibit,
         Your Honor, since this is the Exhibit I got in response to
         discovery and which has, my expert says is unreadable, it has
         impeded my discovery, and I do want to --
                   THE COURT:  Why did you not go back and ask for a
         readable copy?
                   MR. OSTROWSKI:  I did, but this all happened just a
         couple days before trial.
                   THE COURT:  Oh, this is over the weekend.  This is
         the --
                   MR. OSTROWSKI:  And I was leaving --
                   THE COURT:  -- happenstance run-in with the new
         expert, yes.
                   MR. OSTROWSKI:  That's what I got and I gave it to
         the expert and he couldn't read it, and I know I asked Denis
         for another copy, but I haven't gotten one yet.
                   MR. KITCHEN:   Well,  for what it's worth, Your
         Honor, I frankly don't think that kind of grayish original I
         have, that any copy machine would maybe do it justice.  I would
         offer to swap Exhibits here with Mr. Ostrowski for the future
         since --
                   THE COURT:  Why swap?
                   MR. OSTROWSKI:  Well, I want it in the record, at
         least for identification, because I may --
                   THE COURT:  It's been identified.
                   MR. OSTROWSKI:  I may be asking for relief based on
         the fact that he couldn't read it.
                   MR. KITCHEN:  Well --
                   MR. OSTROWSKI:  But I will proceed to use -- okay,
         Plaintiff's Exhibit --
                   THE COURT:  Now, I suppose this is in Greek so when
         you first saw it, you couldn't tell whether it was readable or
         not, you yourself.
                   MR. OSTROWSKI:  Well, Your Honor --
                   MR. KITCHEN:  If you'd like to take a look at it.
                   THE COURT:  Well, I mean --
                   THE WITNESS:  It's bad.
                   THE COURT:  -- even Greek you can see whether --
                   MR. OSTROWSKI:  You can read some of that but you
         can't read, you can't read the whole thing, and of course --
                   THE COURT:  Oh, sure.  Sure.  Well, you would --
                   MR. KITCHEN:  You'd need every little thing.
                   THE COURT:  Sure.  So you -- when did you get that?
                   MR. OSTROWSKI:  8/31/93, August 31, and I was out of
         town Thursday and Friday, so I'm certain I forgot what I was up
         to.
         BY MR. OSTROWSKI:
         Q.   Plaintiff's Exhibit 20, is that the finished version of
         Brian's code that you referred to?
         A.   I think it is, sir.
         Q.   And what releases does this appear on, this -- I mean, I
         take it for granted, let me ask you, is this a file -- this is
         a file retrieval system, correct?
         A.   Yes, sir.
         Q.   Plaintiff's 20?
         A.   Yes, sir.
         Q.   And it was used on one or more of your releases?
         A.   Yes, sir.
         Q.   And which ones?
         A.   Okay.  That was used on NOPV-6, that's this disk here.  It
         was used on NOPV version 1.  It was released on NOPV-7.
         Q.   Okay.  So Plaintiff's 20 is Brian's finished code, which
         is the file retrieval system on NOPV-6.
                   THE COURT:  Let me get something straight now.  I had
         thought that you had said earlier that Defendant 4 was a copy
         of Plaintiff 20.  That's not true, is it?  It's 3 that's a copy
         of 20.
                   MR. OSTROWSKI:  4, Defendant's 4 and Plaintiff's 20
         are identical, Your Honor.
                   MR. KITCHEN:  But 3 is a copy of Plaintiff's Exhibit
         19, Your Honor.
                   THE COURT:  Well, somehow as I first wrote down about
         Defendant's Exhibit 4, I wrote out, quote, Graham's code,
         unquote.  Should be Martin's code.
                   MR. OSTROWSKI:  Yes.  It says Brian's source code on
         it.
                   THE COURT:  Oh, I see.  The title of it is Brian's,
         is Brian's code.  Is that what it says?
                   MR. OSTROWSKI:  Yes -- oh --
                   MR. KITCHEN:  There's actually two --
                   MR. OSTROWSKI:  I'm sorry, Your Honor.  You're
         correct.  It is Defendant's 3 which says Brian's work.  The
         plaintiff has stated that Plaintiff's 20 is Brian's, quote,
         finished work.
                   MR. KITCHEN:  Well, that's true.  There are two that
         were the product of Brian Martin, and both Defendant's 3 and 4
         or Plaintiff's 19 and 20 are Brian's work.
                   THE COURT:  All right.  Which relates to what?  Which
         Plaintiff Exhibit is which Defendant's Exhibit?
                   MR. KITCHEN:  19, Plaintiff's 19 is equal, is a copy,
         is the original of Defendant's 3.
                   THE COURT:  That's what I had, yeah.
                   MR. KITCHEN:  And 20 is the original of 4.
                   THE COURT:  All right.
                   MR. KITCHEN:  And it has the legibility problem.
         BY MR. OSTROWSKI:
         Q.   Okay.  And you stated that Plaintiff's 20, Brian's
         finished code, is -- was the file retrieval on --
         A.   NOPV-6, it's this one here.
         Q.   Right.  Plaintiff's 25.  And 007?
         A.   NOPV-00, yeah 7.
         Q.   Okay.  And you stated that Defendant's 3, complete source
         of Brian's work, that was used on various PDSI releases, 006,
         006-1 and maybe 006-2?
         A.   I think.
         Q.   Okay.  And you're going to --
         A.   Yes.
         Q.   -- hopefully search for that?
         A.   Yes.
         Q.   Now, to what extent is complete source of Brian's work,
         Defendant's 3?
         A.   That was at that date, yes.
         Q.   I'm sorry?
         A.   That was at that date.  That was his complete source at
         that date.  Until he finished it, it wasn't complete.  He had
         it before it was completed.
                   THE COURT:  I know that you like to be comfortable,
         Mr. Graham, but I do have to have you move up and speak into
         the microphone.
                   THE WITNESS:  I'm sorry.  That was his complete work
         at that date.
         BY MR. OSTROWSKI:
         Q.   No.  I understand that.
         A.   Okay.  Then when he did complete it, now we got the final
         stage.
                   THE COURT:  You're pointing to that, and that's what
         is in Mr. Ostrowski's left hand.
                   THE WITNESS:  Yes, sir.
                   THE COURT:  And what Exhibit is that, Mr. Ostrowski?
                   THE WITNESS:  That was sent to Mr. Kitchen.
                   THE COURT:  Wait a minute.  What Exhibit is that, Mr.
         Ostrowski?
                   MR. OSTROWSKI:  That's Defendant's 3.
                   THE COURT:  Thank you.
         BY MR. OSTROWSKI:
         Q.   He's saying is the, what Brian had done as of 12/13/91.
         Correct?
         A.   Correct.
         Q.   And Plaintiff's 20 is his later version?
         A.   Is his latest, right.
         Q.   Okay.  To what extent is Plaintiff's 20 --
                   THE COURT:  Then I'm still confused.  20 is --
                   MR. KITCHEN:  I think I'm confusing Your Honor.
                   THE COURT:  20 is 3.
                   MR. OSTROWSKI:  Okay.  Your Honor, Plaintiff's 19 is
         Defendant's 3.  I'll use Plaintiff's 19.
                   THE COURT:  Thank you.
         BY MR. OSTROWSKI:
         Q.   Okay.  Plaintiff's 19 is the same as Defendant's 3, is
         that correct, the one you were just looking at?
         A.   Wait a minute.  I might have made a mistake.
         Q.   This is Defendant's 3.  I just want to establish that
         those are identical to -- that's identical to Plaintiff's 19.
         A.   That's not -- what I'm looking for here, I don't see in
         here, and I can't remember.  That, all right, that --
                   THE COURT:  Are they the same?
                   THE WITNESS:  Yes, sir.
                   THE COURT:  These two copies?
                   THE WITNESS:  These two copies are the same, right.
                   THE COURT:  All right.
                   THE WITNESS:  This is his earlier works, this is his
         complete.  Right.
                   THE COURT:  Thank you.
         BY MR. OSTROWSKI:
         Q.   Defendant's 3 is a photocopy of Plaintiff's 19?
         A.   Right.
         Q.   Okay.
                   THE COURT:  Is this a good time to take a recess, Mr.
         Ostrowski?
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE COURT:  All right.  Recess.
              (Recess taken.)
                   THE COURT:  On the record.
                   CONTINUED CROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Mr. Graham, Plaintiff's -- how similar are Plaintiff's 19
         and Plaintiff's 20, in other words, Brian's --
         A.   Finished?
         Q.   -- Brian's program of December 13th, '91 and his, what you
         call finished work?
         A.   I'd say there's changes.
                   THE COURT:  Excuse me?
                   THE WITNESS:  There is changes.
                   THE COURT:  There are changes?
                   THE WITNESS:  Yes.  There's added support.
         BY MR. OSTROWSKI:
         Q.   Well, do you know that from off the top of your head, or
         do you need to look at them?
         A.   No.  I can look and tell you right now there's changes.
         Q.   Well --
                   THE COURT:  Are there changes of any substance?
                   THE WITNESS:  Yes, sir.  Mouse support in this new
         one.
                   THE COURT:  I just want to know yes or no.  Which is
         the later one?
                   THE WITNESS:  This one here, sir.
                   THE COURT:  What is that?
                   THE WITNESS:  20, Exhibit 20.
                   THE COURT:  20 is the later edition?
                   THE WITNESS:  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   Well, what -- let me ask you, as far as -- does it look
         like 20 is longer?
         A.   Well, yes, it looks longer.
         Q.   Okay.  And it's longer on paper, correct?
         A.   Yes.
         Q.   So would it also be longer in the computer?
         A.   Yes.
         Q.   Because the printout is a printout of what's on the
         computer, correct?
         A.   It's the source code, yes, sir.
         Q.   Now, with respect to Plaintiff's 19, what percentage, in
         your opinion, of 19, is carried over into 20?
         A.   I have no idea.
         Q.   You have no idea?
         A.   No, sir.
         Q.   Could you tell by examining the program?
         A.   Not me.  I'm not a, I'm not an expert.
         Q.   Okay.  What language are they in?
         A.   That's in C.
                   THE COURT:  Excuse me?
                   THE WITNESS:  C.
                   THE COURT:  C.
                   THE WITNESS:  C Plus Plus.
         BY MR. OSTROWSKI:
         Q.   Okay.  You don't have the ability --
                   THE COURT:  C Plus, you said, Mr. Graham?
                   THE WITNESS:  C Plus Plus, yes.
                   THE COURT:  C Plus.
                   THE WITNESS:  C Plus.
         BY MR. OSTROWSKI:
         Q.   Well, is it C, C Plus or C Plus Plus?
         A.   C Plus, I think it's C Plus Plus.
         Q.   Are there three different languages?
         A.   What do you mean?
         Q.   Are there three different languages, C, C Plus, and C Plus
         Plus?
         A.   Yes.
         Q.   And you're not sure which that is in?
         A.   I know what I have on my computer but I do not know what
         Brian writes in.
         Q.   Okay.  But just from looking at it, you're not sure which
         language it's in?
         A.   No, sir.  I'm not going to say it's C Plus or C or C Plus
         Plus.  I have no idea.
         Q.   But is it fair to say that Plaintiff's 20, did he start,
         did he take as his point of departure Plaintiff's 19, which was
         also his work?  In writing 20, did he use 19?  Did he start
         with that?
         A.   I'm not sure.  I'm not sure if he --
         Q.   Did you tell him --
         A.   -- rewrote it totally or I'm not --
         Q.   Did you tell him to?
         A.   I told him to rewrite the program, yes, sir.
         Q.   Well, which program -- when you say rewrite the program,
         which program did you tell him to rewrite?
         A.   The Night C.
         Q.   Well, as far as, did you tell him to rewrite 19, or did
         you tell him to rewrite --
         A.   Well, see, I'm not sure if this is part of this.
         Q.   Okay.  Well, I know, we've established that you don't --
         A.   I'm not sure --
         Q.   But what I'm, all I'm asking you is, did you tell him to,
         when he was redrafting 19 to turn it into 20, did you instruct
         him --
         A.   No, he was instructed to take and do 19 over, make 20
         totally itself, his.
         Q.   Okay.
                   THE COURT:  Now, I didn't catch what language is
         being used.
                   THE WITNESS:  C Plus Plus, I think, Your Honor.
         BY MR. OSTROWSKI:
         Q.   But he, he did have 19 obviously to use if he wanted?
         A.   When he turned it over to me, well, yeah, he had it up
         till that date, yeah.
         Q.   Well, he must have kept a copy, correct?
         A.   Well, if he kept a copy, he still had it, right.
                   THE COURT:  Let me go back to a basic question I had
         earlier about the marking of Exhibits.  Is it true that the
         technology exists on what I will call the bottom of a disk and
         not the top part, is that correct?  That the reading of the
         disk is from the bottom of the disk?
                   THE WITNESS:  Yes, sir.
                   THE COURT:  That's why on a couple of yours you've
         got pieces, looks like a piece of gum stuck on there on top
         because that doesn't matter.
                   THE WITNESS:  That's the readable part.
                   THE COURT:  Yeah.  If you turn it over --
                   THE WITNESS:  That's the label.
                   THE COURT:  -- you got some junk up there.
                   THE WITNESS:  That's the label.
                   THE COURT:  Yeah.  Why don't we put the sticker on
         the top part?
                   MR. OSTROWSKI:  I'm sorry, Your Honor.  Why don't we
         put the sticker on the --
                   THE COURT:  So we have it on the upper face of the
         disk, which doesn't matter if it has something up there, and
         would preserve the integrity of the Exhibit.
                   MR. OSTROWSKI:  I defer to the plaintiff.
                   MR. KITCHEN:  That's, that's fine with me, Judge.  I
         was a little unsure as to whether it would impede the operation
         of these.
                   THE COURT:  Well, he says no.
                   THE WITNESS:  No.  It shouldn't.
                   MR. KITCHEN:  And if he says no, then I will --
                   THE COURT:  Well, just take another sticker.  You can
         do that in due course, not right now.  Make a duplicate sticker
         and put it on the top surface of the compact disk.
                   MR. OSTROWSKI:  In fact, maybe I could just take it
         and just --
                   THE COURT:  Not now.  Do it later.
                   MR. OSTROWSKI:  All right.
                   MR. KITCHEN:  If the Court is anticipating that once
         we start taking them out of their cases that --
                   THE COURT:  Well, those things happen, you know.  All
         the way from here to New York City for the Court of Appeals and
         all that --
                   MR. OSTROWSKI:  What is the first --
                   THE COURT:  -- Washington, D.C.
                   MR. KITCHEN:  Please.
                   MR. OSTROWSKI:  Did you see the other copyright
         Exhibit, 13, I think?
                   THE COURT:  You got it now?
                   MR. OSTROWSKI:  Oh, here it is.
         BY MR. OSTROWSKI:
         Q.   Now, looking -- well, what's the date of the first
         copyright that you filed?
                   THE COURT:  Is that Plaintiff 13?
                   MR. OSTROWSKI:  Yes, Your Honor.  Sorry.
                   THE WITNESS:  September 19th, '91.
         BY MR. OSTROWSKI:
         Q.   And what's the date on the second one?
         A.   September 20th, '91.
         Q.   And the date of the third one?
         A.   January 28th, 1992.
         Q.   Okay.  What, with respect to Plaintiff's Exhibit 13, the
         first notice, dated 9/19/91, what was the name of the program
         that you copyrighted?
         A.   Night.EXE.
                   THE COURT:  Excuse me?
                   THE WITNESS:  Night.EXE.
         BY MR. OSTROWSKI:
         Q.   And which program in fact was that?
         A.   This was Jeff Anderson and mine.
         Q.   Is that an Exhibit?
         A.   No, it's not.
         Q.   Okay.  So you're -- what language was it in?
         A.   That was Quick Basic.
         Q.   Is that available to bring to Court?
         A.   No, sir, it's not.
         Q.   Why not?
         A.   Well, unless Jeff Anderson has it.  I don't have it.
         Q.   You don't have a copy of it?
         A.   No, sir, I don't.  That was part of my destruction on the
         hard drive.
         Q.   I'm sorry?
         A.   It was destroyed from a hard drive.
         Q.   You made a mistake?
         A.   No, I didn't make a mistake.
         Q.   What in fact did you send down to the Copyright Office
         with Plaintiff's 13?
         A.   I'm not sure how many pages it was.  I think it was 20
         pages of code and two floppy disks.
         Q.   And with respect to the next application, is that the next
         day?
                   THE COURT:  Usually.
                   THE WITNESS:  That's the next day, yes.
         BY MR. OSTROWSKI:
         Q.   And what's the -- well, let me go back.  What is Night,
         Night Owl Computer Service?
         A.   That was my business name.
         Q.   And is that the name of the copyright holder?
         A.   Yes.
         Q.   Is that a corporation?
         A.   No, it's not.
         Q.   Is that a d/b/a?
         A.   Yes, it is.
         Q.   Is it filed?
         A.   Yes, it is.
         Q.   Where?
         A.   Erie County Hall.
         Q.   Is that the county where you have your office?
         A.   County Clerk -- what.
         Q.   Is Erie County the county where you have your office?
         A.   It was at that time, yes, it was.
         Q.   And where is your office now?
         A.   My office is in Jamestown.
         Q.   But you're not using this name anymore?
         A.   No, sir, I'm not.
         Q.   Okay.  Can you identify what you copyrighted on the first
         form, Plaintiff's 13, by reference to one of the releases
         that's in evidence?
         A.   What I copyrighted?  The Night.EXE.
         Q.   And which release was that used on?
         A.   That was released on PDSI-002.
         Q.   And what program did you copyright the next day on the
         20th in Plaintiff's Exhibit 14?
         A.   The first code from Larry that we released.
         Q.   And which, the one in Quick Basic?
         A.   No.  I think that was C Plus and it was roughly around the
         9/1 date on the code, I think, or earlier.
         Q.   Okay.  You copy -- the second copyright application, which
         is Plaintiff's 14, you copyrighted the program that Larry did
         in C or C Plus Plus, whatever?
         A.   Which Exhibit?
         Q.   14 I believe it is.
         A.   14, right.  Okay.  Yes.
         Q.   And what program did you copyright?
         A.   That was C Plus Plus.
         Q.   And what did you send down to the Copyright Office?
         A.   I think, I think they asked for 50 pages first in the
         beginning, or the first 50 pages and the last 50 pages, but I'm
         not sure, I think I sent the whole code because I don't think
         we had a total of 50 pages, and two, two floppy disks.
         Q.   Can you identify by release number the program that's
         dealt with in copyright notice dated September 20th?
         A.   There's supposed to be something on the back.  I'd still
         say that has to be Larry's code there, I'm not sure.  Could
         either be Larry's or Brian's.
         Q.   Well --
         A.   Without, on the back I can't tell you.
         Q.   -- I'm talking about Plaintiff's 14.
         A.   Oh, you said 15.
         Q.   Oh, I thought I said 14.  September 20th, 1991, copyright
         registration, Plaintiff's 14, what did you copyright?
         A.   The Night Owl execute file.
         Q.   Which one?
         A.   CD ROM retrieval.
                   THE COURT:  Night Owl what?
                   THE WITNESS:  The Night.EXE.
                   THE COURT:  Night Owl what?
                   THE WITNESS:  Night, not Night Owl.  Night.EXE.
         BY MR. OSTROWSKI:
         Q.   Which one?
         A.   I told you that was a source code either in October or
         September code.
         Q.   Do you have a copy, is it one of the Exhibits, what you
         sent down there?
         A.   No, it's not.  I don't think.
         Q.   Well, is it Plaintiff's 20?
         A.   No, sir.
         Q.   Because the Plaintiff's 20 says 1992, right?
         A.   Right.
         Q.   And that was 1991?
         A.   I never filed one in Brian's yet, no.
         Q.   Is it Plaintiff's 19, is that the one you copyrighted?
         A.   That's possible, but I couldn't swear to it.
         Q.   What you're saying is you cannot tell the Court what you
         copyrighted on September 20th, 1991?
         A.   No, sir, not when I'm having code fresh to me every day.
         I mean, I have code every day.
         Q.   Well, whatever, whatever the reason is, and I'm sure it's
         a good one, you cannot tell the Court what program you
         copyrighted on September --
         A.   I know what program that was.
         Q.   Pardon me?
         A.   That was either August code or September code of Larry's.
         Q.   In what language?
         A.   C.
         Q.   So you can say that September 20th, 1991, Plaintiff's
         Exhibit 14, refers to a program Larry did in C, but you're not
         certain of the time?
         A.   I'm not certain of what date was on the code, no, sir.
                   THE COURT:  Excuse me.  Which one is Defendant's?
                   THE WITNESS:  9/20/91.
                   THE COURT:  Oh, the --
                   THE WITNESS:  Exhibit 14.
                   THE COURT:  Yeah.  That's the Plaintiff 14.  That was
         C Plus Plus?
                   THE WITNESS:  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   I'm showing you Plaintiff's Exhibit 18, what, is that the
         program -- can you identify that?
         A.   That looks like Larry's last code.
         Q.   Before you had the falling out?
         A.   Yes, sir.
         Q.   And is that the one you copyrighted on September 20th,
         1991?
         A.   That could have been, sir.
         Q.   Is it probably or are you not sure?
         A.   I'm not sure.  I'm not sure.
         Q.   Well, is whatever you copyrighted substantially similar to
         that?
         A.   Yes, sir.
         Q.   Because you --
         A.   It's got to be close because it was in the next couple of
         days.
         Q.   -- you do know that it's one of Larry's in C?
         A.   Yes.
         Q.   And it was only a few months of a time frame when he could
         have done one in C?
         A.   Yes.
         Q.   Because of, the start was in April or March, when you
         first got together with him?
         A.   In C?
         Q.   Well, with the whole thing?
         A.   With the whole thing, it was March.
         Q.   Well, let me put it this way.  When did you first get his
         first C version?
         A.   June, July.
         Q.   Was that released on July 31st?
         A.   It's possible.
         Q.   So you got it some time before that?
         A.   That's -- yes.
         Q.   Okay.  So -- okay.  Now, I'm showing you Defendant's
         Exhibit 1.  Can you identify that?
         A.   No, I can't.  You want me to look at all the code?
         Q.   Well, I want you to scan it and see if it looks familiar
         to you.
                   THE COURT:  I had Defendant's Exhibit 1 as being a
         one page document.
                   MR. OSTROWSKI:  I'm sorry, Your Honor.  I may have --
                   THE WITNESS:  It's about 30.
                   THE COURT:  At least I took that from the other
         hearing.
                   MR. OSTROWSKI:  Yeah, Your Honor, that referred to --
                   THE COURT:  Signed by Anderson.
                   MR. OSTROWSKI:  Yeah.
                   THE COURT:  December '91.
                   MR. OSTROWSKI:  I don't think I'll be using that, so
         I haven't marked it.
                   THE WITNESS:  I've seen this code but I haven't seen
         this before.
         BY MR. OSTROWSKI:
         Q.   Okay.  The --
         A.   Apollo 3 file data base management.
                   THE COURT:  So you have, you're using a new
         Defendant's Exhibit 1.
                   MR. OSTROWSKI:  Yes, Your Honor.  Anticipating I
         won't be using the statement of Jeff Anderson.
                   THE COURT:  All right.  What is Defendant's Exhibit
         1, generically?
                   MR. OSTROWSKI:  It's a, it's our, it's our file
         retrieval program that we copyrighted.
         BY MR. OSTROWSKI:
         Q.   Now, showing you Plaintiff's Exhibit 18, you've already
         identified that as the last of a code that Larry James worked
         on?
         A.   Right.
         Q.   And you think you, that's the one you copyrighted?
         A.   I'm not sure.  I can't honest -- I can't say positively.
         I'm not sure.
         Q.   I'd ask you to --
         A.   Pretty sure.
         Q.   I'd ask you to compare the Plaintiff's Exhibit 18 and
         Defendant's Exhibit 1, and page through them or whatever, and
         ask you if they are similar?
         A.   I'm not a programmer.  I can tell they're not similar.
         Q.   Well, how can you tell they're not similar?
         A.   First off - - carriers, unless, well, he's done it a
         different way.
         Q.   Well, I'd ask you to page through them and perhaps compare
         a few pages, and ask you if they're similar.  They're not
         similar?
         A.   No.
         Q.   They're not similar?
         A.   No, they're not.
                   THE COURT:  Just grab that microphone and bring it
         back down.
                   THE WITNESS:  No, sir, they're not.
         BY MR. OSTROWSKI:
         Q.   Well, do you see the section marked include, on the top,
         various lines?
         A.   Yes, sir, I do.
         Q.   Are those similar?
         A.   Them are all libraries, close, but not all.
         Q.   Are they similar?
         A.   Similar.
         Q.   Well, each has a defined, how about in the defined
         category, are those similar?
         A.   Defined?
         Q.   The defined command, function, are those similar?
         A.   Not all of them.
                   MR. KITCHEN:  Your Honor, I will object to this line
         of questioning.  Having already well established both on direct
         as well as cross examination that this witness is not an expert
         and not a programmer, Mr. Ostrowski seems to be trying to
         utilize him as such, to point out --
                   THE COURT:  No.  I think Mr. Graham has been very
         quick in pointing out where he doesn't know and not within his
         expertise.  And I assume that you have cautioned him not to be
         shingling off the roof and guessing at things.
                   MR. KITCHEN:  Well, yes, I suppose, since Mr.
         Ostrowski's propensity was to ferret out inconsistencies and
         flagellate the witness with them.
                   THE COURT:  Oh, of course.  That's what a cross
         examiner tries to do.
                   MR. KITCHEN:  I understand that, but I --
                   THE COURT:  Tries to hang the witness up to dry.
                   MR. KITCHEN:  Well, but now what Mr. Ostrowski seems
         to be trying to do is utilizing this witness to, to find the
         similarities between things, and I don't think he's laid a
         proper foundation.
                   THE COURT:  I think the witness is protecting himself
         very well in that regard.
                   MR. KITCHEN:  Very well, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Well, let me ask you this.  Defendant's Exhibit 1, in your
         opinion, what is that program, is it a computer program?
         A.   Yes, sir.
         Q.   And do you know, can you identify what kind of program it
         is, just by paging through it?
         A.   I'd say it's a file data base management program.
                   THE COURT:  It's a what?
                   THE WITNESS:  A file data base management program.
                   MR. OSTROWSKI:  Okay.
         BY MR. OSTROWSKI:
         Q.   Now, again, this Plaintiff's Exhibit 18, the last of Larry
         James' code, is there anything that was deleted from that when
         you printed that out?
         A.   Yes, sir.
         Q.   What?
         A.   All the X code that was protecting the name, and the
         copyright by Larry James, and the Compuserve number.
         Q.   You took out Larry James' copyright notice?
         A.   Yes, we did.
         Q.   Well, who's we?
         A.   I did.
         Q.   You did?
         A.   Well, not me actually.
         Q.   At your direction?
         A.   Yes.
         Q.   It was taken out?
         A.   Yes.
         Q.   And then you filed that with the Copyright Office?
         A.   Yes.  I think that's the one.
         Q.   Are you aware that it's a Federal crime to alter a
         copyright notice with fraudulent intent?
         A.   No, sir, I'm not.
         Q.   Are you aware that it's a violation of the law?
         A.   I do now.
         Q.   If you do it with fraudulent intent?
         A.   I do now, yes, sir.
         Q.   Okay.  Is Plaintiff's Exhibit 18 a workable program?
         A.   18, a workable?
         Q.   Yeah, if that was in the computer and you pressed execute
         command, whatever you do?
         A.   No, sir, not in this stage.
         Q.   Okay.  This is --
         A.   This is just source codes.
         Q.   Is it correct to say -- and why isn't it -- well, what do
         you mean it's just the source code?
         A.   It's just source code.  You have to compile --
         Q.   Well, it's all, every program is source code, isn't it?
         A.   Yes.
         Q.   Okay.  So this does not work because it's source code.  It
         does not work for some other reason, right?
         A.   Right.  It has to be compiled.
         Q.   Well, if this was compiled, would it work?
         A.   Yes.
         Q.   It would?
         A.   I think.
         Q.   You don't know?
         A.   No, I don't.
         Q.   But you filed this with the Copyright Office?
         A.   That was Larry's last work, that's what we filed.
         Q.   So you --
         A.   I think.
         Q.   You took Larry's program and you deleted his copyright
         notice and you filed it with the Copyright Office?
         A.   Well, Greg Armenia had the name removed, and yes, I filed
         it, I think that one there with the Copyright Office.
         Q.   Well, first of all, you say you did it, and now you're
         saying Greg Armenia did it.
         A.   Greg Armenia hired his brother.
         Q.   Which is the truth and which is the lie?
         A.   Greg Armenia hired his brother to come into my house from
         Rochester to take Larry James' name all out of my code.
         Q.   What was Greg Armenia's legal status for --
         A.   He says he is a criminal justice student, so I went by
         what he said.
         Q.   Okay.  You were taking legal advice from a criminal
         justice student?
         A.   Well, that's what I was told.
         Q.   They don't really study much law, do they?
         A.   I don't know now, sir.  I don't know.
         Q.   Okay.  Has to do with police work, and so on.  Was he your
         employee?
         A.   Not at that time, no, sir.
         Q.   Ever?
         A.   Not really.
         Q.   Not really.  Just, well, was he a friend?
         A.   Well, he started out to be a friend, yes.
         Q.   Okay.  And did you ever pay him any money for anything?
         A.   I lent him $1,300.
         Q.   You paid him $1,300?
         A.   I lent him $1,300.
         Q.   Did he ever, did he ever do any work for you for pay?
                   THE COURT:  Which him is this now?
                   MR. OSTROWSKI:  Greg Armenia, Your Honor.
                   THE COURT:  Greg or --
                   THE WITNESS:  Greg Armenia.
                   THE COURT:  Greg or his brother?
                   THE WITNESS:  Greg Armenia.  Yes, he did work to try
         to pay the $1,300 back.
         BY MR. OSTROWSKI:
         Q.   So he was an employee?
         A.   Yes.
         Q.   Or an independent contractor?
         A.   Not at that time.
         Q.   Well, what I'm ask -- I was saying, he was either an
         employee or an independent contractor?
         A.   Well, independent contractor.
         Q.   Why was he an independent contractor, in your view?
         A.   Why was he an independent contractor, because he owed me
         money.
         Q.   Okay.  He took it off -- is it fair to say that he took it
         off at your direction?
         A.   No, sir.  He told me that I could do that.  He read me the
         law, what I thought was the law.  He said, you paid for it,
         this is yours, boom, boom, boom.
         Q.   What do you mean, he read you the law?  You said before
         that you weren't familiar with any --
         A.   From his lips.
         Q.   Well, you said before you weren't familiar with any law,
         other than this very short copyright registration form?
         A.   That's what I said.
         Q.   Okay.  But that was incorrect?
         A.   It's not incorrect.
         Q.   You had discussions with Greg Armenia about copyright law?
         A.   Greg Armenia was telling me the law.  I didn't ask him the
         law.
         Q.   You had discussions with Greg Armenia about copyright law?
         A.   Right.
         Q.   So it's incorrect, what you said before, that you're not
         an experienced person in copyright law?
         A.   I still -- that's correct, sir.
         Q.   You're -- I didn't hear the last answer.
         A.   I says, you're correct, sir.
         Q.   You're not that knowledgeable about copyright law?
         A.   No, sir, I'm not.
         Q.   Okay.  So when you were giving Larry James legal advice
         based on some note on a form, you really didn't know what you
         were doing, did you?
                   MR. KITCHEN:  I'll object.  Mischaracterized his
         prior testimony.  I don't think the witness ever testified that
         he gave legal advice to Larry James.
                   THE COURT:  I don't think he needs that education
         either, Mr. Kitchen.  Go ahead.
         BY MR. OSTROWSKI:
         Q.   When you gave him legal advice based on this form, you
         didn't really know what you were doing, did you?
         A.   Not really.  Only what the Copyright Office told me.
         Q.   Okay.  But you didn't really know what you were doing, did
         you?
         A.   No, sir, I didn't.
         Q.   Okay.  And going back to a previous question.  If this
         program is in the computer and compiled, will it run?
         A.   Yes, sir, I think it will.
         Q.   You think it will?
         A.   Yes, sir, I do.
         Q.   Without the copyright notice on it?
         A.   Without the copyright notice on it.
         Q.   Okay.  Now, this Plaintiff's 19 is -- Plaintiff's 19 and
         that's Brian's first work, which he --
         A.   No, I'm not sure if that's his first work or not.
         Q.   You've already stated --
         A.   I marked this, it says Brian's completed work.  At this
         time it was his completed work.
         Q.   Right.  Well, in this case it's the first program that he
         wrote.  Whatever other programs he wrote are not in the case.
         They're not here?
         A.   No.  He could have had source every week that he sent me.
         Q.   Right, but as far as the Exhibits are concerned and what's
         in front of us, that's his first?
         A.   Right.
         Q.   Okay.  And you say that that was completely, that
         represents a totally different program from, say Plaintiff's
         Exhibit 18, which was Larry James' work product?
         A.   I haven't got Larry James in front of me to tell you that.
         Q.   Well, you've already testified to that.  You've testified
         that Brian's first -- Brian's, Brian 1, Plaintiff's 19, is
         completely different, starting from scratch, from what Larry
         James did in C?
         A.   This is different, yes.
         Q.   Well, it's completely different and started from scratch,
         that's what you said, isn't it?
         A.   No, I didn't say this one --
                   MR. KITCHEN:  Wait a minute, Your Honor.
                   THE COURT:  Wait a minute.  What?
                   MR. KITCHEN:  I'll object to this now.
                   THE COURT:  What's the objection?
                   MR. KITCHEN:  Well, the objection was, he previously,
         we've established that it was Exhibit 20 that was the one that
         was completely new.
                   MR. OSTROWSKI:  No.
                   MR. KITCHEN:  Now Mr. Ostrowski is trying to confuse
         him.
                   THE COURT:  No, no, no.  Let him testify, Mr.
         Kitchen.
                   MR. OSTROWSKI:  Well, I think Mr. Kitchen is
         incorrect on the testimony.
                   THE COURT:  Let him testify.  Go ahead.  Ask
         questions.
         BY MR. OSTROWSKI:
         Q.   Is it correct that Plaintiff's 19 is completely different
         from Larry James' last program, which I take it is Plaintiff's
         18, is that correct?
         A.   Yes.
         Q.   And that 19 is completely different from 18?
         A.   I don't know that, no.
         Q.   Well, didn't you testify on direct exam -- when Mr.
         Kitchen was asking you questions before, that it's completely
         different work, and I believe you said it was from scratch?
         A.   The other code is from scratch.  The one that's in 92 is
         the completed code.  It was redone completely.  This one was
         carried on.  I'm not positive.  You'd have to ask Brian Martin
         that.  I can't testify for him.
         Q.   Well, you already did.  So what you're saying is that you
         did not testify before that Plaintiff's 19, complete source of
         Brian's work --
         A.   Complete source of Brian's work --
         Q.   -- is a complete rewrite --
         A.   -- as of that date --
                   THE COURT:  Wait a minute.  One at a time, please.
                   THE WITNESS:  As of that date --
         BY MR. OSTROWSKI:
         Q.   Well, I didn't finish my question.
         A.   Okay.
         Q.   Is a complete rewrite from scratch of Larry James'
         program?
         A.   As far as I'm concerned, yes.
         Q.   Okay.
         A.   As far as I know, what I was told by him, yes.
         Q.   Well, that's what you testified to before.
         A.   That's what I was told by him, yes.
         Q.   That's what you testified to before, correct?
         A.   Yes.
         Q.   And that's the truth, right?
         A.   As far as I know.
         Q.   Well --
                   THE COURT:  Well, would you guess at something?
                   THE WITNESS:  I would guess.
                   THE COURT:  I don't want you to guess.
                   THE WITNESS:  But I can't honestly say.
                   THE COURT:  Well, if you can't say it, just say, I
         don't know.
                   THE WITNESS:  I don't know.
         BY MR. OSTROWSKI:
         Q.   Oh, you don't know.  Okay.  So, when you said on direct
         examination -- do you know what an oath to tell the truth
         means?
         A.   Yes, sir, I do.
         Q.   Okay.  And you know that if you don't tell the truth
         intentionally it's a crime?
         A.   Well, I'm not telling it intentionally.
         Q.   Well, do you know that that's true?
         A.   Yes, sir.
         Q.   Okay.  So when you said that Plaintiff's 19 was completely
         rewritten from --
                   MR. OSTROWSKI:  Well, I object to counsel rescuing
         his witness.  This is number 3 now.
                   THE COURT:  You object to his what?
                   MR. OSTROWSKI:  I --
                   THE COURT:  You object to him rising from his chair?
                   MR. OSTROWSKI:  He's rescuing.  I have this in my
         pretrial notes, Your Honor, that he did that at the preliminary
         hearing.
         BY MR. OSTROWSKI:
         Q.   When you testified before that Plaintiff's 19 was a
         rewrite from scratch of Larry James' last program, that was
         incorrect?
         A.   I'm going by the date what I see on that paper.
         Q.   Well, you don't know, right?
         A.   Right.  I don't know.
                   MR. KITCHEN:  Your Honor, I object again.
                   THE COURT:  Well, let's put it this way.  If you did
         testify earlier that Plaintiff's Exhibit 19 was a complete
         rewrite from scratch of Plaintiff's 19, that that -- is that --
         would that or would that not be a lie, or incorrect?
                   THE WITNESS:  Was 19 okay.  Say that again.
                   THE COURT:  19.
                   THE WITNESS:  Is that what I'm looking at now?
                   MR. OSTROWSKI:  Right here.
                   THE COURT:  Is Brian, the preliminary version of
         Brian's code.
                   THE WITNESS:  That's his preliminary --
                   THE COURT:  Was that a complete rewrite from scratch
         of James' code?  Or don't you know?
                   THE WITNESS:  I'm not, I don't really --
                   THE COURT:  Just say, I don't know.
                   THE WITNESS:  I don't know.
                   MR. OSTROWSKI:  You don't know.
                   MR. KITCHEN:  Your Honor --
         BY MR. OSTROWSKI:
         Q.   So when you said before --
                   MR. KITCHEN:  Your Honor, my objection --
                   THE COURT:  What's your objection?
                   MR. KITCHEN:  Well, my objection is is that I never
         used Exhibit 19 --
                   THE COURT:  Wait a minute.  Wait a minute.  That's no
         objection.
                   MR. KITCHEN:  Well, I'm --
                   THE COURT:  That's not an objection.
                   MR. KITCHEN:  But Mr. Ostrowski is essentially --
                   THE COURT:  Torturing the truth.  Wrapping the truth
         all around the chandeliers in the courtroom.
                   MR. KITCHEN:  I suppose it's something like assuming
         facts not in evidence.  He's saying that I --
                   THE COURT:  He is cross examining and he has not
         abused his privilege in that regard to this point, and you have
         a redirect examination in which you can straighten everything
         out.
                   MR. KITCHEN:  One could only hope, Your Honor.
                   MR. OSTROWSKI:  I'll just let the record speak for
         itself, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  Did you testify before in response to what Mr.
         Kitchen said that Plaintiff's 19 was a rewrite complete from
         scratch?
                   THE COURT:  If you remember.
                   THE WITNESS:  Under my impression, yes, but I cannot
         testify to yes, because I didn't write it.  I think Brian told
         me it was a rewrite complete.  That's all I know.  I'm not, I
         can't say because I didn't do the program.
         BY MR. OSTROWSKI:
         Q.   So when you -- oh, I know you didn't.  When you say it's
         a rewrite from scratch, you're giving an answer that you didn't
         know whether it was true or false, right?
         A.   To what I was told, I was told it was.
         Q.   Please answer the question.
         A.   Yes.
         Q.   When you said that it was a rewrite from scratch, that was
         actually incorrect because you don't know, one way or the
         other?
         A.   Yes, that's correct.
                   THE COURT:  Well, you don't know whether or not it is
         correct.  It might be correct, it might not be correct.
                   THE WITNESS:  Yes, sir.
                   THE COURT:  All right.
                   MR. OSTROWSKI:  Okay.
                   THE COURT:  Have we kicked that around enough?
                   MR. OSTROWSKI:  Not quite yet, Your Honor.
                   THE COURT:  Okay.
         BY MR. OSTROWSKI:
         Q.   Now, isn't it true that you also said at the preliminary
         hearing that Brian Martin came in and rewrote the program?
         A.   Brian never came to write the program.  He did the disk at
         Rochester.
         Q.   Yeah, well, I don't really care if he, where he was.  What
         I'm saying is he, did you testify that he rewrote the program?
         A.   Yes, sir.
         Q.   In fact, did you say, I have a new programmer that I paid
         $3,000 -- by the way, did you, isn't it true that you denied
         that you paid him -- well, you said you paid him $200, is that
         correct?
         A.   $200 or $300, yes.
         Q.   Well, didn't you say at the preliminary hearing you paid
         him $3,000?
         A.   No, sir, I did not.
         Q.   Okay.
                   THE COURT:  You have the Exhibit, Mr. --
                   MR. OSTROWSKI: I know, Your Honor, but I thought I --
                   THE COURT:  You have, you have docket item number 2,
         which I'm watching very carefully to see that you don't walk
         out of the courtroom with it.
                   MR. OSTROWSKI:  Will we be marking the transcript as
         an Exhibit, Your Honor, the Court transcript?
                   THE COURT:  No need to.  What you want to do is to
         find a particular page which you'll advise Mr. Kitchen about,
         and then you'll ask the witness whether he was asked this
         question and whether he gave this answer.
                   MR. OSTROWSKI:  I don't have to mark it, Your Honor?
                   THE COURT:  Of course not.  I won't let you mark it.
         It's a filed document, docket Exhibit, docket item number 2 in
         this case.
                   MR. KITCHEN:  Is that equivalent to a Court Exhibit,
         Your Honor?
                   THE COURT:  Pardon me?
                   MR. KITCHEN:  Is that equivalent to a Court Exhibit?
                   THE COURT:  No, but it's part of the record in the
         case.  It's docket item number 2.
                   MR. OSTROWSKI:  I'm just in the process of learning
         my Appellate law, so that's hopeful.
                   THE COURT:  Now, you're going to refer to a
         particular page and line --
                   MR. OSTROWSKI:  Yes, Your Honor, I'll --
                   THE COURT:  -- and you'll afford Mr. Kitchen the
         courtesy of telling him what page and what line.
            MR. OSTROWSKI:  As soon as I determine the line, Your Honor.
                   THE COURT:  What page?
         BY MR. OSTROWSKI:
         Q.   Do you recall -- I'm on 104 but I'm trying to formulate my
         question.  Was there some point, now you had a number of
         different file retrieval programs, was there some point where
         you thought that you had the best system on the market?
         A.   I don't think you really ever have the best.  You always
         try to achieve.
         Q.   Well, did you testify at the preliminary hearing that --
         A.   At that time, yes.
         Q.   -- at some point, without specifying which one it was, you
         had the best file retrieval system on the market?
         A.   Yes, sir.
         Q.   And do you recall, I'm on page 104, 105 generally, do you
         recall on line 6, page 105, do you recall on cross examination
         being asked by me, let me just ask you the question again, the
         effort, the additional effort that Mr. James put in has made it
         the best retrieval system that you're aware of, and do you
         recall giving the answer, no, sir, just because -- can I speak?
         A.   That's what I said.
         Q.   Okay.  And isn't it correct that later on at that hearing
         you stated that it was not the work of Larry James that made it
         the best program, and I'm paraphrasing, I'm not quoting here,
         that you had a new program?
         A.   Yes, sir.
         Q.   And did you state that, at line 16, 105, quote, well, the
         question, at line 14 --
                   THE COURT:  You have to go back beyond that to make
         sense.
                   MR. OSTROWSKI:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  Going back to 10, question, well, let me ponder,
         you've already testified that the program you're using now,
         which is the best system, was, is the -- answer, it's not Mr.
         James -- question, work product of, substantially the work
         product of Larry James, is that your testimony.  Question.  And
         did you give the following answer.  No, I have a new programmer
         that I have paid $3,000 that has rewrote the whole program.  So
         now, yes, it is significantly better than anything on the
         market.
         A.   I don't think I said $3,000.
         Q.   Okay.
         A.   Because I don't remember that figure.
         Q.   Do you think the transcript is wrong?
         A.   I'm sorry, I do.  I don't think I said $3,000.
                   THE COURT:  We can actually get out the tape and have
         you listen to it?
                   MR. OSTROWSKI:  Is that available without --
                   THE COURT:  It's not available just like that.  It
         would take --
                   MR. OSTROWSKI:  Perhaps --
                   THE COURT:  It could be available tomorrow.
                   THE WITNESS:  I could have said it, but I didn't mean
         it.
                   MR. OSTROWSKI:  Yes.  I would ask the Court Reporter
         to try to locate, it's on page 105, I don't know how that's
         organized.  Page 105, line 16.  And determine whether that, the
         number $3,000, or at least be able to play that back.
                   COURT RECORDER:  What's the date?
                   MR. OSTROWSKI:  The date is December 21, 1991.
         BY MR. OSTROWSKI:
         Q.   You did give that answer though at line 16, and so on?
         A.   Yes, sir, but like I said, the figure I'm not sure.
         Q.   So what you're saying is, and by the way, is this all true
         as of today?
         A.   What's that, sir?
         Q.   Well, when you say, I have a new program -- let me
         paraphrase.  When you say here that it's not Larry James' work
         that made it the best program on the market, it was Brian
         Martin's, is that basically correct?
         A.   All of the programmers made an effort to it, yes.
         Q.   Well, okay.  So what you're saying is that what you have
         here, what you said on December 21, 1991 under oath is not the
         entire truth?
         A.   Brian's is greater, yes.  It's better.  Let's put it this
         way.  It's better.  They keep going up and up.  I consider it
         better by adding more things to it.
         Q.   Well, did you understand that the purpose of my
         questionings at that hearing was to try to suggest that the
         amount you were paying him for total ownership was inadequate?
         You understood that, didn't you?
         A.   Paying, paying who?
         Q.   Larry James.  Well, I'll withdraw that, Your Honor.  Okay.
         Now, you've -- is it correct that this Brian's, complete source
         of Brian's work that's --
                   THE COURT:  What Exhibit?
                   MR. OSTROWSKI:  Plaintiff's 19, which I'll call
         Brian's 1, not to confuse the issue.
         BY MR. OSTROWSKI:
         Q.   But this one was prepared just about the time of the
         preliminary hearing, December 21, '91, and this is 12/13/91,
         correct?
         A.   Yes, sir, I presume that.
         Q.   Okay.  So was this the program you were referring to in
         the preliminary hearing?
         A.   Yes, sir.
         Q.   And you said that he rewrote the whole program?
         A.   I'm not sure if I said rewrote the whole program.
         Q.   Well, is that what the transcript says, at line 17?
         A.   Okay.
         Q.   Is that the answer you gave?
         A.   Yes, sir.
         Q.   Under oath?
         A.   Right.
         Q.   And this release date of this, I believe you stated was
         5/92, the release that contained this program?
         A.   I think it, I think it was earlier than that.  I'd have to
         get the date for you.
         Q.   Well, I believe you said that there was at least one that
         went out 5/92, and there may have been an earlier one?
         A.   Right.  Has to be on one of the two.  I'm not positive.
         I'd have to get you the date.
         Q.   So the fact is, when you say that he rewrote it, rewrote
         it from scratch, you're talking about this one, not some other
         one, not the later fatter one, isn't that correct?
         A.   I can't speak, I'm not sure what he, what he -- what he
         told me, and I told him to rewrite it.  That's what he gave me.
         That is not the finished code.
         Q.   That's the program you were talking about at the
         preliminary hearing, isn't it?
         A.   That is not the code I was talking at at the preliminary
         hearing.
         Q.   Okay.  And which code were you --
         A.   He didn't have the code, he didn't even have the code yet.
         It wasn't done till 5 something of '92.
         Q.   Well, that's the release date?
         A.   No.  That's the --
         Q.   Of the CD ROM?
         A.   The other big packet there, the other code.
         Q.   Well, you said 5/92 was the release date of the CD ROM
         which had this program on it?
         A.   Right.
         Q.   Correct?  And there was an earlier release?
         A.   There was an earlier release, right.
         Q.   Which you're going to try to produce, I take it, with this
         on it?
         A.   There was --
         Q.   So the release date and the program date are consistent
         with each other, aren't they?  The program, here we have --
         A.   Usually they're, usually they're pretty close.  Otherwise
         if the code is done -- don't forget, this was prepared for the
         Court.  Usually when the code is done at 12/31, that, usually
         I have a disk coming out within the next couple of weeks.
         Q.   Okay.  You've already stated that Plaintiff's 19 is what
         you were talking about at the preliminary hearing, and now
         you're saying that, no, it's not.  Which is the truth?
         A.   Well, I know it's not the completed code, but I know it is
         a rewritten code.
         Q.   Well, when you said that he --
         A.   I mean, that's what I can say.
         Q.   -- rewrote the whole program, you're talking about Brian
         Martin?
         A.   He did rewrite it.
         Q.   And this says Brian's work?
         A.   He says he -- right.  He says he rewrote it.
                   COURT RECORDER:  One at a time, please.
                   THE COURT:  What she means is, also talk in the
         microphone, but don't talk both at the same time.
                   THE WITNESS:  I'm sorry.
         BY MR. OSTROWSKI:
         Q.   You said he rewrote the whole program on December 21,
         1991?
         A.   Right.  That's what he said.
         Q.   And Brian did it?
         A.   Yes, sir.
         Q.   And this says Brian's work?
         A.   Yes, sir.
         Q.   Plaintiff's 19?
         A.   Right.
         Q.   And it's dated 12/13/91?
         A.   That's what he said.
         Q.   And that's the program you were talking about, that he
         rewrote the whole program.  This is the program, Plaintiff's
         19, correct?  Take a look at it.
         A.   If that says Plaintiff 19 and that was in the Court here,
         yes, that's it then.
         Q.   No.  It wasn't in the Court.  It's in the Court now.  Is
         that the program you were referring to when you said he rewrote
         the whole program?
                   THE COURT:  What was not in the courtroom?  That's
         right.  We just went through 12 earlier.  That's correct.
                   MR. OSTROWSKI:  That's another --
                   THE COURT:  19 was not here.
                   MR. OSTROWSKI:  I think it's significant that it was
         not in the courtroom.
                   THE WITNESS:  This was given to Denis Kitchen.
         BY MR. OSTROWSKI:
         Q.   That's the program you were referring to at the
         preliminary hearing, isn't it?  Same date, same guy?
         A.   Well, first off, he didn't even -- he said -- yes.  He --
         Q.   Just answer the question.
         A.   What's the question?
         Q.   Well, for the seventh time, is that the program that you
         were referring to in the preliminary hearing when you said he
         rewrote the whole program?
         A.   I'm not sure if this is it.
         Q.   Okay.  Where is it then?
         A.   The completed code of Brian Martin's, Denis has it.
         Q.   Well, this says complete source of Brian's work, doesn't
         it?
         A.   Complete source as of that date, right.  That was '91,
         when I turned my code in to Denis five months ago.
         Q.   And what other programs do you have of Brian Martin that
         were --
         A.   I have some with 5 of '92.
         Q.   Okay.
         A.   What is the last, I'm pretty sure it was June of '92 is
         when he wrote it.
         Q.   Can you read the date on the official transcript,
         evidentiary hearing before the Honorable John T. Elfvin?
         A.   My note was in 1991.
         Q.   See that date?
         A.   December 21st.
         Q.   1991?
         A.   Right.
         Q.   Okay.  So you couldn't have been referring to some program
         that was written in 1992, correct?
         A.   Well, he hadn't got it totally completed.  I never --
         Q.   You couldn't have been referring to a program that was
         written in 1992, correct?
         A.   Yes, correct.
         Q.   Okay.  And so the only program that you could possibly
         have been referring to is this program which is dated six days
         before the hearing, isn't that correct?
         A.   I'd like to read his statement.
         Q.   Feel free.
                   THE COURT:  Show him the face.  You wanted the date
         of it or --
                   THE WITNESS:  No, sir.  Just what the statement was
         made.
                   MR. OSTROWSKI:  Feel free to page through it.
                   THE WITNESS:  Okay.  You're asking me if he rewrote
         it.  The statement I made, no, I have a new programmer that I
         have paid $3,000, which I think is the wrong figure, that has
         rewrote the whole program.  I didn't say he was finished with
         it.  I never said what date he was going to finish with his
         product.
         BY MR. OSTROWSKI:
         Q.   Well, you're never finished with a program, aren't you?
         A.   Never, no, not really.
         Q.   Okay.  So that's really kind of irrelevant?
         A.   That probably at the time was code then.
         Q.   So you're saying, this is probably what you're referring
         to?
         A.   That probably could be, yes.
         Q.   Okay.  And this is probably what you're referring to
         earlier today --
                   THE COURT:  What is this and this?
                   MR. OSTROWSKI:  Plaintiff's 19, Your Honor.
                   THE WITNESS:  19.
         BY MR. OSTROWSKI:
         Q.   Plaintiff's 19 is what you were also referring to earlier
         today when you were asked that, a question regarding Brian
         Martin writing a program from scratch, correct?
         A.   That I'm not sure.
         Q.   Okay.  And if you gave -- well, did you say you weren't
         sure when you were asked if he wrote it from scratch?
         A.   I was told, I'm not sure what I said then either, but I
         was told it was written --
         Q.   You don't remember what you said earlier in the day about
         whether Brian Martin rewrote the program from scratch?
         A.   I know he wrote code from scratch.  I can prove, but which
         code it is, I have to see all the three codes, to be able to
         detect which one it was.
         Q.   Okay.  But you do -- well, you've already stated that
         Plaintiff's 19 is what you were referring to on December 19th,
         correct?
                   MR. KITCHEN:  Asked and answered, Your Honor.
                   MR. OSTROWSKI:  Oh, but he's so evasive.
                   THE COURT:  Please.  You may answer the question.
         BY MR. OSTROWSKI:
         Q.   Did you state just a minute ago that Plaintiff's 19 is
         what you referred to on page 105 of the hearing when you say,
         he rewrote the whole program?
         A.   I'll go by the date, so I'll have to say, yes, that
         probably was what I was referring to.
         Q.   Okay.
         A.   That's possible.
                   THE COURT:  We can break at any point when you're
         going into some new matter.
                   MR. OSTROWSKI:  For the day, Your Honor?
                   THE COURT:  Yeah.  We can go on a little while
         longer.  Not forever.
                   MR. OSTROWSKI:  Well, let me, let me see if I have
         anything -- actually there's some material in my computer that
         I haven't had time to extract.  It might help me.  Let me just
         check my notes.
         BY MR. OSTROWSKI:
         Q.   Okay.  With respect to the third copyright notice -- well,
         let me ask you this.  Which Exhibit is the Larry James Quick
         Basic version?
         A.   5.
         Q.   Okay.  And we don't have the source code for that, do we,
         anywhere?
         A.   No, we don't.
         Q.   And you can't even get it, is that correct?
         A.   I've never had the source --
                   THE COURT:  Well, you ask this and this, and that
         doesn't mean anything for the record.
                   MR. OSTROWSKI:  I'm sorry. Plaintiff's Exhibit 5,
         Your Honor, I'm referring to.
                   THE WITNESS:  I've never had the source code for 5.
                   MR. OSTROWSKI:  Okay.
                   THE WITNESS:  That disk.
                   MR. OSTROWSKI:  I'm glad these pauses don't show up
         on the record, Your Honor.
         BY MR. OSTROWSKI:
         Q.   You didn't copyright the file retrieval program from
         Plaintiff's Exhibit 5?
         A.   No, I did not.
         Q.   Is that correct?
         A.   I had no source so it wasn't copyrighted, no.
         Q.   Now, isn't it correct that you testified earlier that
         Plaintiff's Exhibit 5, which is Larry James' Quick Basic
         program, is substantially similar to -- can you locate Larry
         James' C version, as far as the CD ROM it was on?
         A.   The CD ROM?
         Q.   Because I've lost track of, and I know my notes are in
         here.  Well, in any event --
         A.   Signed 4/1.
         Q.   Pardon me?
         A.   Signed 4/1, and it's on 5.
         Q.   Which, this one?
         A.   Yes.
         Q.   Okay.  Plaintiff's Exhibit 6 is PDSI-004-1?
         A.   Yeah.
         Q.   And that would -- well, that can't be right because it's
         1990.
         A.   That's --
         Q.   Well, in any event, I don't need to refer, but Plaintiff's
         5 is, has Larry James' Quick Basic version on it, correct?
         A.   Yes.
         Q.   And Larry James' Quick Basic program is substantially
         similar to Larry James' C program?
         A.   Yes.
         Q.   And you copyrighted, you think you copyrighted Larry
         James' C program, but not anything that's on 5 -- well, strike
         that.  You copyrighted Larry James' C program, correct?
         A.   That's correct.
         Q.   Which is substantially similar to what's on Plaintiff's
         Exhibit 5, which is the Quick Basic version?
         A.   That's correct.
         Q.   But you didn't copyright Quick Basic version which is on
         Plaintiff's 5?
         A.   That's correct.
         Q.   What did you copyright with, on January 28th, 1992.
         Showing you Plaintiff's Exhibit 15.
         A.   That probably was Exhibit 19, maybe.  I'm not sure.
         Q.   You don't know what you copyrighted on January 28th, 1992?
         A.   No, sir.  I think that was an update to the text, I'm not
         sure.  One of them were.
         Q.   Well, is it fair to say you're not sure what you
         copyrighted?
         A.   Well, I haven't got --
         Q.   With Plaintiff's Exhibit 15?
         A.   I haven't got the other side of the form.  If I can get
         mine out of my briefcase I can tell you what it was for.
         Q.   As it stands now, you don't know what you copyrighted
         under Plaintiff's 15?
         A.   No, not two years ago or a year ago.  No, I've got too
         much --
         Q.   Well, regardless of what the hemming and hawing and
         excuses are, you don't know what you copyrighted?
         A.   Well, I know I copyrighted source code.
         Q.   Yeah, of course.  But you don't know what source code?
         A.   It could have been Brian's or it could have been Larry's.
         Q.   You don't know which one it was?
         A.   Well, no, if Larry wasn't there and this was done in
         January of '92, it definitely was Brian's then.
         Q.   Well, I'm not asking you to guess or speculate.  I'm
         asking you if you know?
         A.   No, I do know.  It was in '92.
         Q.   Or you probably know?
         A.   It was Brian's.
                   THE COURT:  You said, if you could look at something
         in your briefcase?
                   THE WITNESS:  Yes, sir, the back of my copyright
         thing.
                   MR. OSTROWSKI:  Well, he's going to be on tomorrow,
         Your Honor, I take it, so --
                   THE COURT:  All right.
                   MR. OSTROWSKI:  I'd really like to know.
         BY MR. OSTROWSKI:
         Q.   Now, who -- I take it you wrote Brian's work on
         Plaintiff's 19.  That's your writing?
         A.   Yes, sir, it is.
         Q.   Okay.  Now, on -- is Plaintiff's 5, Plaintiff's 5 is the
         Quick Basic version, correct?
         A.   Yes, sir.
         Q.   Of Larry James?
         A.   Yes, sir.
         Q.   This is the one with the copyright notice on the menu?
         A.   Yes, sir.
         Q.   Is it the menu or the first screen?  You said -- did you
         say that the first screen --
         A.   The first screen.
         Q.   -- had the copyright notice?
         A.   The first screen.
         Q.   With essentially nothing on it but the copyright notice?
         A.   Right.
         Q.   And then there was a menu?
         A.   No, there was copyright, then the menu.
         Q.   And that was automatic, right?
         A.   That was automatic.
         Q.   So the copyright notice would flash for a few seconds?
         A.   Right, until you hit enter.
         Q.   And it's your testimony that you didn't see that -- what
         is the term in the industry for the first thing you see, the
         opening screen or menu or --
         A.   Menu.
         Q.   Except there's not the menu here?
         A.   No, it's not the menu.
         Q.   I'll just describe it then.  It's your testimony that you
         did not see the first screen with the copyright notice of Larry
         James and Richard Graham?
         A.   At that moment when I had the disk, no.
         Q.   Before you sent it out to the manufacturer?
         A.   No, sir.
         Q.   And what, what is the release date of Plaintiff's 5?
         A.   April '91.
         Q.   Is that still being sold?
         A.   That version, no, sir.
         Q.   Well, you stated before that --
         A.   Oh, well, not by us.
         Q.   Well, being sold by anybody?
         A.   I haven't pressed any.  I don't know.
         Q.   Anybody in the world?
         A.   I haven't pressed it in over a year.
         Q.   Do you sell in Hong Kong?
         A.   No, sir, I don't.
         Q.   Do you distribute to Hong Kong?
         A.   No, sir, I don't.
         Q.   You distribute to how many countries?
         A.   Australia, Austria.
         Q.   Okay.  So for all you know, somebody in Austria could be
         still selling this?
         A.   They could be, for all I know.
         Q.   And they, they're authorized to do so because they --
         A.   If they bought it from us, yes.
         Q.   -- they bought it from you.  Okay.  Did you ever do a
         recall -- well, at what point did you, do you know the exact
         date of the release?  You said it was April?
         A.   I think it was April 23rd, but I can't be positive.
         Q.   April 23rd.  And --
                   THE COURT:  What happened on April 23rd?
                   THE WITNESS:  The release date of version 4, PDSI-
         004.
         BY MR. OSTROWSKI:
         Q.   I take it they shipped some of these to you?
         A.   They shipped them all.
         Q.   Or all of them.  And what did you do when you got the
         shipment?
         A.   When we got the shipment, I looked them over.
         Q.   How, did you fire it up and look at the first screen?
         A.   No, I did not.
         Q.   You did not?
         A.   No, I didn't.
         Q.   How did you check them over?
         A.   Nimbus told me they worked.  That's their job.
         Q.   I'm sorry?
         A.   Nimbus, the manufacturer, told me that the product --
         Q.   You just said -- I'm sorry.
         A.   I said I didn't, no.
         Q.   Well, you just said that you checked them over.  You
         checked it over?
         A.   I checked them over to make sure the cases and stuff was
         not cracked.  In production, when we get stuff, we have to
         check everything.
         Q.   Okay.
         A.   But physically pull it out of the disk, put it in my CD
         ROM, no, I did not check the disk.
         Q.   You did not do that?
         A.   I did not check the physical disk, no, sir.
         Q.   Okay.  When did you find out that there was a copyright
         notice of Larry James and Richard Graham on it?
         A.   I'd say a week, two weeks later.
         Q.   A week later.  How did you find that out?
         A.   One of my clients called me.
         Q.   Who was that?
         A.   Peter Pappilion.
                   COURT RECORDER:  Peter who?
                   THE WITNESS:  Peter Pappilion.
         BY MR. OSTROWSKI:
         Q.   And so you found out, is it fair to say, around May 1st,
         '91, that Larry James and you had a joint copyright notice?
         A.   Close, yes, sir.
         Q.   On Plaintiff's 5 -- I'm sorry?
         A.   Close, yes.
         Q.   I'm just asking you approximately?
         A.   Approximately, yes, sir.
         Q.   Okay.  And it's still to your knowledge being sold, this
         release?
         A.   Not to my knowledge.
         Q.   In all probability, since you're a worldwide distributor,
         it's probably being sold in some country around the world?
         A.   Not really.
                   MR. KITCHEN:  Objection.  Calling for speculation,
         Your Honor.
                   MR. OSTROWSKI:  Well, it's his business.  He's a
         distributor.
                   MR. KITCHEN:  Objection.  Calling for a speculation.
                   THE WITNESS:  How many did I cut?
                   THE COURT:  If he doesn't know, he'll say, I do not
         know.
         BY MR. OSTROWSKI:
         Q.   Is it likely that it's still being sold anywhere on earth?
         A.   It's possible, but I don't know.
         Q.   Okay.  Did you recall it?
         A.   No, that disk was not recalled.
         Q.   After you saw the copyright notice on it?
         A.   No, sir, it was not.
                   THE COURT:  All right.  Whenever you can, we want to
         break for the evening.
                   MR. OSTROWSKI:  Yes.  That's a good break, Your
         Honor.
                   THE COURT:  All right.  9:00 o'clock tomorrow
         morning.

                                                       2


                                 I N D E X


Witness                         Dir  Cross  Redir  Recr

Richard E. Graham                18   135