Phoenix CD 5.0/Phoenix-CD 5.0.iso/nightowl.003

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                              UNITED STATES DISTRICT COURT
                              WESTERN DISTRICT OF NEW YORK

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

         RICHARD E. GRAHAM,                           91-CV-800

                             Plaintiff,
                                                      Buffalo, New York
         -vs-                                         September 9, 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

                   MR. OSTROWSKI:  Could we just deal with a preliminary
         matter?  I may have one of our other witnesses operate the
         computer with the permission of the Court.  We've set it up
         here.  I'm just wondering, if we turn the monitor around and
         put it on this table facing you, whether that would be --
                   THE COURT:  I could come down.
                   MR. OSTROWSKI:  It doesn't matter.  We could just do
         it all here.
                   THE COURT:  No.  I'll come down.  My legs still work.
                   MR. OSTROWSKI:  Okay.
                   THE COURT:  So what are you going to do?  Mr. Swanson
         is here.
                   MR. KITCHEN:  Were we going to continue with Mr.
         Swanson?
                   MR. OSTROWSKI:  Yes.
                   THE COURT:  Yes.  We're going to get him on and off
         and back to Jamestown and his work.
                   MR. OSTROWSKI:  Yeah.  I'm not going to be all that
         long.
                   THE COURT:  Promises, promises.
                   MR. OSTROWSKI:  Your Honor, there is one matter I
         might as well bring up now.  Our case is severely handicapped
         because our computer expert cannot see these programs, and --
                   THE COURT:  Cannot see what?
                   MR. OSTROWSKI:  Under the confidentiality order of --
                   THE COURT:  Your expert cannot see the programs?
                   MR. OSTROWSKI:  Well, Mr. James is our expert.  Now,
         we have limited funds and we've hired a professor from Canisius
         who will be coming in to testify.  A, we don't have the
         thousands of dollars it would take for him to do a detailed
         structural analysis of these later programs.  And B, he got one
         of the programs, the first program chronologically that he
         claims, that the plaintiff claims is not Mr. James' work, is
         unreadable.  It's in paper form.  It's not on computer disk as
         we requested in our discovery, as was ordered and as we
         requested it, and ordered in our Subpoena.  We don't have it.
         He's handicapped.  He can't look at it on the screen.  He can't
         run computer programs.  And furthermore, Mr. James cannot look
         at these programs to assist me in preparing cross examination
         and in rebutting the claims.  I would ask that the Court
         reconsider the confidentiality order.  We've already
         established that the -- I should start to refer to Exhibits at
         this point.  Going over 19 and going -- Plaintiff's 19 and
         going right over -- I'm sorry, skipping over 18 and going right
         to 19, which was a later program, it's already been conceded by
         at least two witnesses that Plaintiff's 19 is substantially
         similar to Larry James' last program and therefore, I think
         we've already proven to some extent similarity, and therefore
         I think that goes to -- that lessens the risk of copying, if
         Mr. James had access to the program.
              Furthermore, it's undisputed that Brian Martin had access
         to Plaintiff's 19 when he produced Plaintiff's 20, and there's
         some dispute about whether that's similar.  We're handicapped
         on that because my expert can't read his copy and Mr. James
         can't see the program.
              But in any event, I should certainly think that a Court
         order preventing him from copying the program or utilizing the
         program should be sufficient.  But at this point we are
         absolutely stymied on the issue of similarity with respect to
         anything past Plaintiff's 19.  I read over Plaintiff's Exhibit
         21 last night.  This one I did not see until yesterday.  This
         one was mailed to my expert while I was in Salt Lake City just
         before the trial.  And he doesn't have enough time to analyze
         this very thick program and it is absolutely Greek to me.  So,
         because we're stymied at this point, I would ask that the Court
         reconsider the confidentiality order and allow Mr. James to
         look at these programs so he can help me prepare my case and
         also testify about them on, when he testifies.
                   MR. KITCHEN:  First of all, Your Honor, in terms of
         time to analyze, the expert, defendant's expert has had more
         time to analyze these programs in certain respects than has our
         witness, Mr. Swanson, who has seen some of this stuff more
         recently.  And I think the Court would itself be aware of the
         fact that Mr. Swanson was able to make some assessment as to
         similarity and differences on the spot.  I daresay that
         defendant's expert should be able to do likewise.
              In terms of being able to offer programs, now I have
         Plaintiff's Exhibit 22 and 23, which I tendered to Mr.
         Ostrowski yesterday, I believe, and were actually available on
         the first day, and I, to be honest, I might have tendered them
         to him on Tuesday.  But in any event, one is -- they're both 3-
         1/2 inch floppy disks.  One is dated 9/30/91.  The other is
         12/1/92.  I haven't, I haven't put them in my own computer or
         seen what's on them.  But I mean, I believe that they contain
         programs which are, which match the, some of the Exhibits that
         have been shown.  Now, I don't know what more can be provided,
         and I also offered on the first day to simply swap Exhibit 20
         that we had, which was a kind of grey, and so it didn't copy
         very well, with, with Mr. Ostrowski's copy, so that he would
         have one that was at least arguably more readable.  But in any
         event, I believe there was testimony yesterday by our expert
         that said that even the copy that Mr. Ostrowski showed him,
         which he claimed to be illegible, was certainly legible enough
         for Mr. Swanson to make some comparisons.  So I'm not sure how
         that really has affected the defendant's expert.
              But in any event, this is still proprietary material, and
         we are concerned about letting Mr. James look at them.  He's
         already demonstrated his propensity for marketing them
         elsewhere.
                   THE COURT:  Allegedly.
                   MR. OSTROWSKI:  Allegedly.  Just briefly, to say that
         Mr. Swanson has only had a short amount of time to look at them
         is absurd.  He wrote a couple of these programs and he had
         access to the others.  My expert is looking at them for the
         absolute first time.  Now, once the trial commences, I don't
         have time to be running over to Canisius with a thick piece of
         paper and meeting with my expert.  I've got other things to do.
         I can't even eat lunch half the time.  And he wanted them on
         floppies so he could compare them to his other software.  I
         think that in light of the, some of the holes that we put in
         the credibility of the plaintiff, as far as ownership, he's
         already admitted that he lied about authoring the program.  I
         think that, to borrow a cliche from injunction law, the balance
         of hardships on this issue, because of the fact of the late
         receipt and the improper receipt -- receipt and improper form
         of discovery material, we've been handicapped, I think at this
         point a proper remedy would be to allow Mr. James to defend
         himself against charges that he's a novice, and lack of
         documentation and so on, and look at these programs so he can
         give the Court an intelligent opinion.
                   MR. KITCHEN:  Your Honor, all I can say is, we've
         made every effort to correct, to any lack of discovery in this
         thing by tendering certain items which have been refused in
         each case.
                   THE COURT:  Why have you refused them, Mr. Ostrowski?
                   MR. OSTROWSKI:  Well, I haven't refused anything.  I
         mean, if you're talking about a swapping of a piece of paper,
         I do recall some conversation like that.  But it's too late in
         the trial.  These are long, complicated documents.  I just
         physically do not have time to go up and meet with my expert.
         He's busy.  School is starting.  It's too, it's too late in the
         game.  It's not in the proper form anyway.  My expert was able
         to make a comparison on paper between Plaintiff's Exhibit 19
         and the Defendant's Exhibit which is what we copyrighted.  I,
         the number escapes me, but we'll be talking about it in our
         case.  Just from visual comparison, he didn't even need to put
         it on the computer, he said it's similar.  And now it's even
         undisputed.  I don't even necessarily have to bring in the
         expert on that point anyway.  But when we get into Plaintiff's
         20, obviously there's been some additional work on it.  And you
         get into the structural issue.  Copyright law protects the
         structure of a program if it's sufficiently similar in detail,
         and that requires much more time and probably the aid of these
         sophisticated computer programs.  And he just doesn't have time
         to do that.  So I mean --
                   THE COURT:  Why doesn't he have time?
                   MR. OSTROWSKI:  Because the trial, we're in the
         middle of the trial.  He's busy with his --
                   THE COURT:  What's the magic of being in the middle
         of a trial?
                   MR. OSTROWSKI:  That first of all, I have to meet
         with him, and I have to also prepare -- I have to be in Court,
         I have to prepare the witnesses and prepare questions, and so
         on.  And I'm doing that --
                   THE COURT:  So what are you asking for?  Some
         continuance of a certain part of your case for that purpose?
                   MR. OSTROWSKI:  I'm certainly, I intended to ask at
         the end of the trial that the Court have a bifurcated situation
         wherein you would rule on infringement and similarity up to
         Plaintiff's 19, which is what, the only -- that's the latest
         Exhibit we've been given any reasonable chance of proving
         similarity on.  And in the event that you do hold for the --
                   THE COURT:  Given, quote, given a reasonable chance,
         unquote.  What's that, that means time?
                   MR. OSTROWSKI:  Yes, Your Honor.  That after 19 we
         have the illegible piece of paper, and no --
                   THE COURT:  So how much time would remedy that, not
         having time?
                   MR. OSTROWSKI:  I would think if I got floppy disks
         of each of these programs to the expert, that perhaps a week or
         10 days.  But I don't want to be in the posture of asking for
         an adjournment.  We're ready, you know, we're ready to go.
         Certainly if one --
                   THE COURT:  You're ready to go, but you can't go
         because of this.
                   MR. OSTROWSKI:  On the one -- I mean, there's
         basically two issues, infringement and -- well, there's several
         issues, infringement damages and similarity.  We're talking
         about a couple of the programs on the issue of similarity that
         I would ask, yes, on those specific issues we be given more
         time.  But I'm certainly not trying to stall.  I want to get
         this trial over with, as everybody else does.  But I still --
                   THE COURT:  Well, we do have the luxury of not having
         a jury.
                   MR. OSTROWSKI:  I understand that, Your Honor, and
         that's one of the reasons we did it this way.
                   THE COURT:  Which lends itself to the possibility of
         reasonable contingencies.  Much as everybody, and I, want to
         get the matter done with.
                   MR. OSTROWSKI:  Your Honor is more experienced in
         handling these matters than I am, but I would suggest we forge
         ahead, finish everything we can, and then either at that point
         or before that, I get proper disks to my expert and see what he
         can do with them.
                   THE COURT:  So the bottom line is, we shall proceed.
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE COURT:  All right.
                   MR. OSTROWSKI:  Mr. Swanson again, Your Honor.
                   THE COURT:  All right.  You're still under oath.
              (PHILIP C. SWANSON, Plaintiff's Witness, Previously
         Sworn.)
                   CONTINUED CROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   It looks like I have all the Exhibits.  I'll hand them to
         you prior to asking you any questions about those specific
         Exhibits.
                   THE COURT:  That's satisfactory as long as from time
         to time I know what particular document Mr. Swanson may be
         referring to.  I and the record.
         BY MR. OSTROWSKI:
         Q.   Can you tell us what a parameter list is, Mr. Swanson?
         A.   Yes.  A parameter list is a list of the limits or the
         specifics, you know, that you're going to give to, could be a
         routine, could be a system set up.  Or is there a specific
         context that you're looking for?
                   THE COURT:  Oh, it doesn't lend itself to some
         generalization?
                   THE WITNESS:  Yes.  It's --
                   THE COURT:  But you can't give that without knowing
         what he's looking for?
                   THE WITNESS:  I did give it.  I can, you know, if he
         wants it tightened down.  It's a list --
                   THE COURT:  Well, it sets boundaries.
                   THE WITNESS:  Yes, sir.  Yes.
         BY MR. OSTROWSKI:
         Q.   Let me ask you this.  Is it correct that a parameter list
         refers  to the form in which information is passed between
         modules?
         A.   That's usually referred to as an argument list.
         Q.   Argument?
                   THE COURT:  As a what?
                   THE WITNESS:  As an argument list.
         BY MR. OSTROWSKI:
         Q.   Could it be referred to as a parameter list in the
         industry?
         A.   Yes.
         Q.   Yes?
         A.   Yes.
         Q.   Now, isn't it true that the, that the structure of the
         program, at least in part, refers to the way information is
         passed between modules?
         A.   Yes.
         Q.   And what did you refer to that, what was the alternate
         name, other than parameter?  I've forgotten.
         A.   Argument list.
         Q.   Argument list.  Okay.  Now, are you familiar with
         organizational flow charts as they pertain to computer
         programs?
         A.   Yes.
                   THE COURT:  Organizational what?
                   MR. OSTROWSKI:  Flow charts.
                   THE COURT:  Flow charts.
         BY MR. OSTROWSKI:
         Q.   And what is an organizational flow chart in the context of
         a program?
         A.   An organizational flow chart is a visual map of the
         logical flow of data and decisions.
         Q.   And that, I take it, would represent on paper, or on
         computer, the structure of the program, or part of it?
         A.   Yes.
         Q.   And what would be the relationship between the argument
         list and the, and a flow chart?  Would they overlap, or are
         they different?
         A.   They're different.  A flow chart doesn't define your
         function, the scope of a function, and it doesn't tell you, you
         know, this function makes this decision.  It just tells you,
         well, this decision is made somewhere.
         Q.   Okay.  Showing you, I think we have Plaintiff's 18 through
         21, is that correct there?
         A.   Yes, it is.
         Q.   Now, had you previously referred to Plaintiff's 18 and 19
         as being Larry James' work?
         A.   Okay.  Larry wrote 18 and --
         Q.   Brian Martin wrote 19, but it's substantially similar to
         18?
         A.   Yes.
         Q.   Okay.  Have you done an organizational flow chart for 18?
         A.   No.
         Q.   For 19?
         A.   No.
         Q.   Have you done an argument list analysis for 18?
         A.   No.  I don't, I didn't see a purpose in that.  I did --
                   THE COURT:  Excuse me.  What analysis?
                   MR. OSTROWSKI:  An argument list, that's also known
         as a parameter list.
                   THE COURT:  But then you used the noun analysis.
                   MR. OSTROWSKI:  Well, that, I threw that in.  It
         strikes me that, that that's an analysis.
                   MR. OSTROWSKI:  I don't know.  We're in a lot of very
         sharp technical terms here.  We don't need to have any throw-
         ins.
                   MR. OSTROWSKI:  That's why I throw in my lawyer's
         term, analysis.
                   THE COURT:  Yeah.
         BY MR. OSTROWSKI:
         Q.   Did you do an argument list for Plaintiff's 18?
         A.   I did a V-TOC, not -- that doesn't trace the parameter
         passing or the argument list, no.  That's --
         Q.   What's a V-TOC?
         A.   Visual table of contents.
         Q.   Okay.
         A.   That's another way of breaking down, you know, or another
         way of looking at the structure.  It doesn't so much show you
         logical flow like a flow chart would.  It's --
         Q.   Well, you stated yesterday that simply listing the
         subroutines or routines in, in order in which they appear on
         paper, doesn't really tell you much about the structure, is
         that correct?
         A.   That's correct.
         Q.   And that's, was that more or less what a V -- how do you
         spell that?
         A.   V-T-O-C.  That's an acronym, visual table of contents.  A
         V-TOC does tell you the order of calling in the calling
         hierarchy.
         Q.   But it doesn't tell you information about the structure of
         the program?
         A.   Yes, it does.
         Q.   Okay.  Didn't you state yesterday that the simple order in
         which routines are listed does not give you much information
         about the structure?
         A.   Yes, I did.
         Q.   And what's the difference between that and a V-TOC?
         A.   I have a partial V-TOC if you want, you know, want me to
         grab that, I can --
                   THE COURT:  Is that T as in Thomas or P as in Peter?
                   THE WITNESS:  T as in Thomas, Your Honor.
                   THE COURT:  Table.
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   What's the difference between a V-TOC and simply going
         through the program, taking all the subroutines and listing
         them in order?
         A.   When you list the subroutines in order, you've got a list
         of the subroutines.  It doesn't --
         Q.   But the --
         A.   It doesn't tell how they relate to each other.  It's a
         list of names.
         Q.   Okay.  And what is, what information does a V-TOC add to
         a simple --
         A.   It defines which routines support other routines.  It
         defines the potential for order of calling these routines.
         Q.   But that's not a, an argument list?
         A.   That's correct.  V-TOC is not an argument list.  It's --
         well --
         Q.   Okay.  So I, I lost track, but is it true that on
         Plaintiff's Exhibit 18 and 19, you've done neither an
         organizational flow chart nor an argument list?
         A.   That's correct.  I wouldn't --
         Q.   Okay.
         A.   I wouldn't want to.
         Q.   Well --
         A.   Well, for exhaustive, yeah, I would get into it.
         Q.   Well, I'm just asking you, you haven't done that?
         A.   That's correct.
         Q.   Okay.  And Plaintiff's, how about for Plaintiff's 20, have
         you done an argument list?
         A.   No.  I don't do argument lists.  That's -- you're talking
         about a data flow.
         Q.   Organizational --
         A.   It sounds similar to a data flow diagram, okay, which is
         also different from a flow chart.
         Q.   Well, all I'm asking, you know what an argument list is?
         A.   Yes.
         Q.   In fact, I didn't know until you told me, but it's also
         known as a parameter list?
         A.   Yes.
         Q.   Okay.  But some people might use the words somewhat
         differently, but I'm talking about argument list.
                   THE COURT:  When you say you don't do argument lists,
         do you do parameter lists?  The answer must be no if they're
         approximately the same.
                   THE WITNESS:  As a form of analysis, no, I do not.
                   THE COURT:  Yeah.  All right.  So you don't do
         either, even if they are quite the same.
                   THE WITNESS:  That's correct.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   Well, just to clarify argument list, I believe you've
         already stated that it refers to the form in which information
         is passed between modules?
         A.   That's correct.
         Q.   Would it also refer to the information's actual content?
         A.   That's part of it.  If you're just going to list the
         arguments, that's a necessary part of knowing the information.
         That's not the whole picture.
         Q.   Okay.  Is it correct that modules have to share similar
         argument lists so that they can exchange information?
         A.   Yeah.  Your calling routine and your called routine have
         to have the commonality of the argument list, yes.
         Q.   Okay.  So have you done an argument list for Plaintiff's
         20?
         A.   No, I don't do those.
         Q.   Plaintiff's 21?
         A.   No.
         Q.   Have you done an organizational flow chart for Plaintiff's
         20?
         A.   No, I don't do the flow charts.  I've done -- I have --
         I've developed V-TOC's for this, which I don't know if I have
         with me, you know, as part of developing the program.  But the
         two --
         Q.   But that's neither an argument list nor an organizational
         flow chart?
         A.   That's correct.
         Q.   Okay.  Have you done an argument list for Plaintiff's 21?
         A.   No, I don't do argument lists.
         Q.   Have you done organizational flow chart for Plaintiff's
         21?
         A.   No, I rarely do organizational flow charts.
         Q.   Okay.  Now, you stated that on Larry James' programs,
         which I would take it clearly 18 is his?
         A.   Yes.
         Q.   You stated there was a lack of documentation?
         A.   Yes.
         Q.   Now, if a programmer come up with a novel program that he
         wanted to guard against copying, and that was an important
         concern to him, would he be less likely to include
         documentation or more likely to include documentation?
         A.   I wouldn't say it really affects it one way or the other.
         Q.   Adding documentation would not make it easier for someone
         to copy the program?
         A.   No.  It'll make him easier, you know, to go through and
         understand on an initial reading that if they've got the source
         code, hey, they already got it.  You know, documentation is
         just to explain to humans, what am I doing here.  You know,
         they can, you can dig and you can get it, but --
         Q.   Well, wouldn't the documentation, if somebody wanted to
         copy the program in its detailed structure of routines and
         subroutines but not the source code, in order to avoid a charge
         of infringement, wouldn't the documentation help them do that?
         A.   I don't see -- okay, to copy a program with the detailed
         functions and subroutines, without copying the source code,
         routines are source code.  If you've copied one, you've copied
         the other.
         Q.   Well, you stated yesterday that the same function can be
         expressed in different source codes, is that correct?
         A.   You can -- sure, you can make the call from different
         places.
         Q.   In fact, you stated that virtually every programmer has
         their own -- well, let me ask you.  Isn't it correct that every
         programmer has their own way of expressing themselves in source
         code?
         A.   Yeah.  There's usually style differences.  You know, like
         if a company says,  do  it this way, then you do it that way,
         but --
         Q.   You mentioned style.  Is the word expression similar to --
         A.   Sure.
         Q.   -- the way you use style?
         A.   Sure.
         Q.   Okay.
         A.   Yes.
         Q.   So the same, the same function can be expressed using
         totally different source codes?
         A.   You can make the same -- okay.  Can be expressed?
         Q.   Yeah -- well, no, I'm sorry.  No.  That's an error on my
         part.  You -- the same function can be accomplished by using
         different source codes?
         A.   Yes.
         Q.   Okay.  Now, what -- if you were copying a program,
         wouldn't one of your goals be to make it seem similar to the
         user?
         A.   Yeah. If you want the end product, yes.
         Q.   And what -- and part of the user's understanding of the
         program is derived from documentation?
         A.   From external documentation.  Okay.  We're -- I'm --
         documentation that appears in source code is typically referred
         to as internal documentation.  The user never sees it.
         Q.   Right.  But, okay, what is the purpose of internal
         documentation?
         A.   It's for the programmer, so he knows what, you know,
         what's going on.
         Q.   Okay.  So are you denying that this internal documentation
         would aid someone in copying a program if they wanted to copy
         a program?
         A.   Yeah.  They -- if -- okay.  It's depending on, okay, what
         other sources do they have?  If you have source code, you
         really don't need the documentation.  It's very very helpful if
         you want to understand things.
         Q.   Okay.
         A.   But you can --
         Q.   And you're saying that --
         A.   You can tap it in.
         Q.   Are you saying that understanding the program would not
         help you to copy it in a different source code?
         A.   You have to -- yes.  You have to understand the source
         code if you're going to make a copy of it.  You know, well,
         now, when you say copy --
         Q.   Well, I'm not sure if you're answering my question.  What
         I'm saying is --
         A.   I'm sorry.
                   THE COURT:  Well, let's get on the same beam anyway.
         BY MR. OSTROWSKI:
         Q.   You said that documentation helps the programmer to
         understand the program, right?
         A.   This is correct.
         Q.   Are you also -- if I understand you, you're also saying
         that understanding the program does not help you copy it, yes
         or no?
         A.   No.  You do need to understand a program to reproduce it.
         Okay.  Now, when you say copy, I'm assuming you're not just
         saying, oh, well, I sit down and I type.
         Q.   Well, no.  I mean, nobody does that except, of course,
         Brian Martin's version.
         A.   Right.  Right.  If -- you have to have the concept and you
         have to understand it to reproduce it.
         Q.   So adding document -- internal documentation would help to
         some degree someone in copying a program?
         A.   Yes.
         Q.   Okay.  So isn't it true that if a programmer come up with
         a novel program that he was very concerned about somebody
         copying, he would be less likely to include extensive
         documentation?
         A.   No.  No.
         Q.   Okay.
         A.   Okay.
         Q.   Well, you answered the question.
         A.   Okay.  I --
         Q.   You answered the question.
         A.   Okay.
         Q.   I'm going to move on.  How many -- now, you stated that
         you -- did you get your BA in 1988?
         A.   Yes.
         Q.   Okay.  What -- well, so, and since then you've been, I
         take it, working in computer, in the computer programming
         field?
         A.   Yes.
         Q.   Okay.  So that's a total of three or four years after
         school?
         A.   Before school, six or seven years.  After the bachelors,
         another three or four, yeah.
         Q.   Well, I take it you went to school in order to bring your
         knowledge of programming up to the state of the industry?
         A.   Yes.
         Q.   You think it would be possible for a novice programmer to
         write a program that was considered to be the best in the
         industry?
         A.   If they had -- sure, if they had guidance.  Sure.
         Q.   Well, without guidance, do you think a novice programmer
         could come up with a program that was considered by some to be
         the best in the industry?
         A.   It's within the realm of possibility.  I would say it's
         not likely.
         Q.   Okay.  So if somebody did write a file retrieval program
         that was considered to be the best in the industry, could you
         categorically state that that person is not a novice?
         A.   I'd want to see the code.
         Q.   Okay.  Well, could you --
         A.   Could I categorically state, absolutely for sure?  No, I
         don't have enough information just by --
         Q.   Okay.  Now, we talked about, we talk about subroutines.
         Are there any particular subroutines that are more important
         than others?
         A.   There are certainly subroutines that are called more
         often.  There are subroutines that do what you may consider --
                   THE COURT:  That are, excuse me, called more often?
                   THE WITNESS:  Yes.  It's a -- okay, in Plaintiff 18
         they call frequently a routine called shades.  That sets up a
         color scheme.  You know, you call that from a lot of different
         places.  Yeah.  More, I suppose you could call them more
         important.  You need every piece to fill the whole puzzle, but
         you could stretch.
         BY MR. OSTROWSKI:
         Q.   Well, on Plaintiff's 18, what would you consider to be the
         most important routines, or subroutines?
         A.   The mainline routine.  Nothing goes without that.
         Q.   The mainline, is that called int main?
         A.   Yes.
         Q.   Now, would it be -- is it possible to do a structural
         analysis of one routine, apart from the whole program?
         A.   Yes.  It's -- you may have problems, when you pull a
         routine out of context you may have problems seeing how it
         relates back to the whole.
         Q.   I -- I -- I'm sorry.  You done?  I take it you can't do a
         parameter, an argument list analysis because that has to do
         with a different --
         A.   Well, a good analysis without the whole program, no.  You
         really should have more information to do it right.
         Q.   Now, you stated that there were about 49 functions --
         A.   Yes.
         Q.   -- Plaintiff's 18?
         A.   Plaintiff 18.  Yes.
         Q.   Would it be possible for you to tell us what the three,
         four or five most important ones are?
         A.   Well, okay.  I would name the mainline because nothing
         goes without the mainline.
         Q.   On any program?
         A.   Right.
         Q.   Okay.  Important, well, okay, what --
         Q.   How about int list, which would be very, very close to the
         end of the program?
         A.   Yeah.  That's -- could I tell you -- I can't tell you the
         most three or four, you know, like three or four, five, and
         these are the most important, no, because it's --
         Q.   Well, how about, if I give you specific programs, could
         you tell me if they're more important than average?
                   THE COURT:  This is in 18?
                   MR. OSTROWSKI:  On 18.  Yes, Your Honor.
                   THE WITNESS:  I have -- okay.  I have trouble with
         the word important, because every piece is critical to complete
         that design.  If you want to talk about routines that are
         called more often, if you want to talk about a routine that
         does more with its supporting subroutines, you know, this is,
         important is a little, a little sketchy.
         BY MR. OSTROWSKI:
         Q.   Okay.
         A.   Yeah, you know, the major routines.  Okay.  We could say,
         in general, your top level routines, your mainline and usually
         works out in the design that the ones that it calls right off
         of the mainline are more important.  They tend to do more
         things, you know, because they're toward the top of that
         supportive structure.
                   THE COURT:  In what we're talking about, this noun
         calls is something that doesn't relate to somebody being in
         Cleveland, another person being in Chicago, but rather someone
         sitting in, in front of the computer and calling into the
         program for data.  Is that what you're talking about?
                   THE WITNESS:  I'm sorry, sir.
                   THE COURT:  You used, calls.
                   THE WITNESS:  Yes.
                   THE COURT:  What are calls?
                   THE WITNESS:  A routine call.
                   THE COURT:  You're sitting there with your computer.
         You're calling into the computer.  Or are you in Chicago
         calling Buffalo?
                   THE WITNESS:  This is not, this is not like a phone
         call.
                   THE COURT:  That's what I meant.
                   THE WITNESS:  This is a -- okay, this is an access to
         that routine.  When you --
                   THE COURT:  You're sitting in front of your computer
         and you're having an access or a call.
                   THE WITNESS:  The computer really does this, not so
         much the user.  The user does it --
                   THE COURT:  You push a button.
                   THE WITNESS:  Yeah.  You do it indirectly and the
         computer handles the details of the computer call.  You call it
         by, I make a menu choice.  And yeah, indirectly you're calling
         the function, but the computer handles all this, all that
         stuff.
                   THE COURT:  Yeah.  You want a particular menu and it
         regurgitates it.
                   THE WITNESS:  Yes, sir.
                   THE COURT:  Is that a call?
                   THE WITNESS:  Yes, Your Honor.
                   THE COURT:  That's a call.
                   THE WITNESS:  That's not a function call.
                   THE COURT:  What's -- well, now we have different
         kinds of calls.
                   THE WITNESS:  Yes, sir.  You could -- yes, you could
         say that's a call.  When you make a menu choice, you're calling
         something up.  And indirectly, a function call.  But it's, you
         know, it's --
                   THE COURT:  What's a function call?
                   THE WITNESS:  A function call is when a routine has
         to summon up one of its supportive routines.  It says, oh,
         okay, I'm, I have -- a routine has a task to do.  You do some
         detailed stuff, and you say, well, I've got this chunk, now
         I've got to list the whole file.  It's best to break that out.
         Complex functions, it's best to push them down and break them
         out.  You give that whole task, which is a complex task, to
         another function.  That is a function call when you get to that
         point.
         BY MR. OSTROWSKI:
         Q.   Okay.  I'm going to ask you about three or four of the
         functions of these programs.  I'm not going to ask you to go
         through 49 or do an organizational flow chart, but --
                   THE COURT:  Thank you.
         BY MR. OSTROWSKI:
         Q.   -- with respect to, is there an int help function in the,
         Plaintiff's 18?
         A.   Yes.
         Q.   It would be about page 6?
         A.   Yes.
         Q.   And is there an int help?
                   THE COURT:  Excuse me.  What are you calling that?
                   MR. OSTROWSKI:  It's I-N-T space, help.  And then
         there's a few --
                   THE COURT:  I-N-T H-E-L-P, with a space between the
         T and H.
                   MR. OSTROWSKI:  Yeah.  And then there's some more
         characters, but that's sufficient to identify it for the
         witness.
         BY MR. OSTROWSKI:
         Q.   I'd ask you to look at that briefly.  It looks to be about
         a half a page, or one page, possibly.
                   THE COURT:  This is about page 6 --
                   THE WITNESS:  It's about a page.
                   THE COURT:  -- in Plaintiff 18.  Is that what you
         said, Mr. --
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   It's, yeah, it's page 6 on my copy, which I think is about
         the same.  It might be --
                   THE COURT:  Who has the original?
                   MR. OSTROWSKI:  I'm sorry, Your Honor.  I did an
         analysis of Defendant's 1, which is virtually identical.  It
         may be off by a half a page.
                   THE WITNESS:  This --
                   THE COURT:  All right.  But it isn't going to be
         helpful to me to have the wrong page.
                   THE WITNESS:  This is about two thirds of the way
         down on page 5 on this copy of Plaintiff 18.
                   MR. OSTROWSKI:  They're not numbered in any event,
         Your Honor.
                   THE COURT:  Fifth sheet, an unnumbered sheet?
                   MR. OSTROWSKI:  Yes.
                   THE COURT:  The fifth sheet?
                   MR. OSTROWSKI:  Yes.
         BY MR. OSTROWSKI:
         Q.   Okay.  I would ask you to look at Plaintiff's 20 and see
         if there's any similar subroutine.
                   THE COURT:  What page?
                   MR. OSTROWSKI:  I don't know, on Plaintiff's 20.
                   THE COURT:  I know, but this is -- you've got to be
         dealing out of the same deck.   Otherwise it's not going to
         make any sense to me if I can't correlate this.
                   MR. OSTROWSKI:  It's unnumbered.
                   THE WITNESS:  He has a void help function versus the
         int help, so yeah, he's using the same name.
                   MR. OSTROWSKI:  Your Honor, Plaintiff's 20 is the one
         that is somewhat illegible, and it's not numbered, in any
         event.
                   THE COURT:  But it does have sheets, and they are --
         are they clipped together or --
                   THE WITNESS:  No.  They're unburst.
                   THE COURT:  Oh, they're all separated.
                   MR. OSTROWSKI:  Perhaps we could use paper clips.
                   MR. KITCHEN:  Judge --
                   THE COURT:  Get the big stapler.
                   MR. KITCHEN:  Might I suggest that we just take a
         couple of minutes and just put a number on each page.
                   THE COURT:  Well, first of all, I'm going to get them
         so it makes an integral document.  It can't be flying around
         the courtroom in five different places.
                   THE WITNESS:  Your Honor, those sheets are unburst.
         If you staple them, they'll stick together.  They won't be
         good.
                   THE COURT:  I have that same trouble.  What I do when
         I get them out, I tear them all apart.
                   MR. OSTROWSKI:  We could, well, we could burst them,
         which is the function you just described, Judge, and then just
         staple them at that point, or we could simply number them by
         hand.  That shouldn't take but a couple of minutes.  Might be
         pretty practical if we get into this any more extensively.
                   MR. KITCHEN:  If we each take one, we could probably
         do it in about two or three minutes.
                   MR. OSTROWSKI:  Right.
                   THE WITNESS:  Gentlemen, I would --
                   THE COURT:  Why don't we burst it.
                   MR. OSTROWSKI:  Right.
                   THE COURT:  You get some overlaps --
                   THE WITNESS:  It's a little harder to follow the
         bottom of one page to the --
                   THE COURT:  Yeah.
                   THE WITNESS:  I'm used to seeing them unburst.
                   THE COURT:  Yeah.
                   THE WITNESS:  If it works better for you to burst
         them, you know, we'll do it.
                   THE COURT:  Well --
                   MR. OSTROWSKI:  If we're going to burst them we
         better number them first so they don't come out of order.
                   MR. KITCHEN:  I agree.
                   THE COURT:  Again, at some point for analysis you
         might want to open them up to look at, for example, the --
         where the second sheet joins the third the dividing line runs
         right through the typed line.
                   THE WITNESS:  Yeah.  It helps you --
                   THE COURT:  So half of the line is above and half
         below.
                   THE WITNESS:  Also for lining up braces, you know, on
         two different pages, you got to hold them up and, you know.
                   THE COURT:  Well, is this a continuous strip all the
         way through?
                   THE WITNESS:  Yes, Your Honor.
                   THE COURT:  All right.  So it's already integral?
                   THE WITNESS:  Yes, Your Honor.
                   THE COURT:  I don't have to worry about that.
                   MR. OSTROWSKI:  I'm only going to ask him about five
         routines, and perhaps he could paper clip it or --
                   THE COURT:  Well, you don't have to. It's integral.
                 Until it's burst, it's integral.
                   MR. OSTROWSKI:  Should we number the pages, Your
         Honor?
                   THE COURT:  Don't have to.  As long as I know what
         sheet you're on, you can identify it either by it being the
         15th sheet or by the sheet that starts with bloop, bloop,
         bloop.
                   MR. OSTROWSKI:  Okay.
         BY MR. OSTROWSKI:
         Q.   My question is, is there any routine in Plaintiff's 20
         that is similar to, and I mean generally similar because you
         haven't really looked at it in detail, that is sort of a
         counterpart of the program in Larry James' program which is 18
         called int help, et cetera?
         A.   Yeah.  There's a void, there's a void help in Plaintiff 20
         and --
                   THE COURT:  Void help?
                   THE WITNESS:  Yes.
                   THE COURT:  Is that the same as int help?
                   THE WITNESS:  No.  It --
                   THE COURT:  He asked you about an int help.
                   THE WITNESS:  There's no int help.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   What does void mean in that context?
         A.   The function returns as a value.  The function returns a
         value.  With int help it returns an integer value.
         Q.   Does that make any practical difference?
         A.   Yeah.  I don't know it in -- okay --
         Q.   Well, what I'd ask, I'd ask at this point to take a look
         at them, each program, and I'll ask you some more questions.
         A.   Okay.  I'll -- let me find help in here and then --
         Q.   Basically I was going to ask you if they are similar and
         in what respects, either in source code or function.
         A.   I would expect some similarity, certainly.  Your Honor, I
         don't want to waste the Court's time.  Is it -- can I get to
         this on an electronic copy?
                   THE COURT:  I don't know.  Gentlemen, the witness has
         a question.
                   THE WITNESS:  If I could yank an electronic, you
         know, an electronic media copy, I could --
                   THE COURT:  Wait a minute.  Wait a minute.  I don't
         think the attorneys are even listening to you.  They're very
         rude.  They're very rude.  They're not even listening to you,
         Mr. Swanson.
                   MR. OSTROWSKI:  I heard the question.  I just don't
         know the answer.
                   MR. KITCHEN:  Not only we have been listening, Your
         Honor, but we have an answer, I believe, that Plaintiff's
         Exhibit 22 would do exactly that.
                   THE WITNESS:  Would it be okay if I look, look on
         that instead of look through this?
                   MR. OSTROWSKI:  Which one is this?
                   THE COURT:  They're running the show.  I'm just
         listening.  You're speaking.  I'm listening.
                   MR. OSTROWSKI:  I have to consult with counsel, Your
         Honor, to get out Exhibits straight.  What are you saying this
         Plaintiff's 22 correlates to?
                   MR. KITCHEN:  Well, it has the date on it, 9/30/91,
         and I'm assuming it's going to correlate to Exhibit 18.
                   THE COURT:  Which has the same date.
                   MR. OSTROWSKI:  I have no objection to that receipt
         in evidence, subject to questions about whether in fact it is,
         you know, identical.
                   THE WITNESS:  Do you have something --
                   THE COURT:  How are you going to surmount that?
                   MR. OSTROWSKI:  Well, if I come up with any evidence
         that it's not identical, then I suppose I would -- I suppose it
         doesn't matter.
                   THE COURT:  It can be in anyway.
                   MR. OSTROWSKI:  Yeah.  If it's not identical, it's
         not identical.
                   THE COURT:  All right.  Plaintiff 22 is received.
                   MR. OSTROWSKI:  Into evidence, Your Honor?
                   THE COURT:  Received.
              (Plaintiff Exhibit 22 for identification was received in
         evidence.)
                   THE WITNESS:  Okay.  Here we go.  I got it.  Here's
         help on Plaintiff 20.
                   MR. OSTROWSKI:  Do we have --
                   THE COURT:  Now you're back on 20?
                   MR. OSTROWSKI:  I'm asking a question of counsel.  Do
         we have floppy disks for 20?
                   MR. KITCHEN:  That I don't believe so.
                   MR. OSTROWSKI:  Would it help you to look at one on
         the screen and one on paper or --
                   THE COURT:  Well, one.  What's one?
                   MR. OSTROWSKI:  I'm saying, one, would it help him to
         look at --
                   THE COURT:  O-N-E and not Exhibit 1.
                   MR. OSTROWSKI:  Yeah.  Would it help you to look at
         18 on the computer and the other one on paper, which is
         Plaintiff's 20?
                   THE WITNESS:  Okay.  For this question though I found
         the routines right now.
                   MR. OSTROWSKI:  You found it?  You found it?
                   THE WITNESS:  Yes, sir.
                   THE COURT:  Now you said something about Plaintiff
         20, Mr. Swanson.
                   THE WITNESS:  Yes.  I was, I understood I was to look
         for the corresponding help routine.
                   THE COURT:  Between 18 and 20?
                   THE WITNESS:  Yes.
                   MR. OSTROWSKI:  Okay.
                   THE COURT:  And you found it.
                   THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Approximately what page is that on or, it looks like it's
         near the front, so perhaps you can --
         A.   Okay.
                   THE COURT:  Can you identify it any better than that?
                   THE WITNESS:  Okay.  On Plaintiff --
                   THE COURT:  At the top what the first word is or
         something like that.
                   MR. OSTROWSKI:  If you want to use the pen to mark
         pages off until you get to that point.
                   THE COURT:  You can make the witness work.
                   MR. OSTROWSKI:  You just mark them up, you know,
         anywhere, as long as --
                   THE COURT:  All right.  Let's take a recess.
         Paginate the thing and we'll know what we're doing.  We'll
         recess.
              (Recess taken.)
                   THE COURT:  It doesn't help to speed the trial along
         by letting me escape into the back room where I get tied up
         with five different things.
         BY MR. OSTROWSKI:
         Q.   Do you recall which function I was asking you about before
         the break, because I've --
         A.   Yes, the help function.
         Q.   -- forgotten.  Have you had a chance to look at the help
         function on Plaintiff's 18?
         A.   Yes, I have.
         Q.   And have you had a chance to compare that to a comparable
         program in Plaintiff's 20?
         A.   Yes, I have.
         Q.   And what's your opinion on whether they're similar or
         different and --
         A.   There's similarities and differences, and certainly, you
         know, you're giving help, so you need, you need to call up your
         help information, you need to call up, you know, throw up the
         screen and make keys available to navigate up and down this
         list.  There's different, you know, the methods are a little
         bit different used in the two.
         Q.   Is there any source code that's similar?
         A.   Yes.
         Q.   Between 18 and 20?
         A.   Yes.
         Q.   What lines, can you specify?
         A.   Okay.  18, okay, these are similar.
         Q.   Could you --
                   THE COURT:  But these mean nothing as far as the
         record is concerned.
                   THE WITNESS:  Yeah.
         BY MR. OSTROWSKI:
         Q.   What page, what page are you on in each document?
         A.   Okay.  On Plaintiff 18 I'm on page 5.  On Plaintiff's 20
         I'm on page 63.
         Q.   And on Plaintiff's 18 what line, whereabouts is that line,
         could you put your initials at it, just so --
         A.   Yeah.  I'm about a paragraph down.  I'm talking about the
         while, the while loop that looks for the correct help.
         Q.   Okay.  And on the Plaintiff's 20, where approximately on
         the page is it and could you put your initials there?
         A.   Yes.  It's about halfway down on the page.  It's --
                   THE COURT:  So that was page 63?
                   THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  And those two lines of the code are similar?
         A.   Yes.
         Q.   In the source code.  Are there any other similarities in
         the source code between the two functions?
         A.   Yes.  Yeah.  They're similar functions.  Yeah.  There's --
         Q.   Could you just --
         A.   Sure.
         Q.   -- take a look at the programs and come up with an
         estimate as to the number of lines of code which appear to you
         to be similar or identical?
         A.   Okay.  Okay.  Let's go with similar.  Oh, let's call it
         50%.
         Q.   Okay.  So the source code is, between the two functions,
         is 50% similar?
         A.   Yes.
         Q.   Okay.  Are any of the functions similar?
         A.   Yeah.  They're doing the same, they're doing the same type
         of thing, yes.
         Q.   Give us an example --
                   THE COURT:  Identical?
                   THE WITNESS:  No.
         BY MR. OSTROWSKI:
         Q.   Give us an example of one of the similar things they do.
         A.   Okay.  Both of them come in.  You save -- okay, this
         doesn't save -- you look through the list of help to find the
         appropriate help subject.  That's similar.  We do some screen
         set-up in each of them.  Then we cruise for input from the user
         to navigate the list.  You know, page up, page down, all that.
                   THE COURT:  Cruising and navigating are technical
         terms?
                   THE WITNESS:  No, these are, those are very informal
         terms, Your Honor.  Then we await input from the user, like a -
          - that will let him look through the list like he wants, you
         know, a page up, page down, to scroll the list appropriately.
         BY MR. OSTROWSKI:
         Q.   Before I forget, are you being compensated for your, for
         appearing here today?
         A.   No, I'm not.
         Q.   Okay.  Are you receiving compensation from Richard Graham,
         generally?
         A.   Compensation for this, no, I'm, you know, I'm contracted
         for other projects.
                   THE COURT:  Mr. Kitchen made mention yesterday of
         some cost to the plaintiff of bringing you here for an extra
         day.  That's not true?
                   THE WITNESS:  He's, he's floating my meals, yeah.
                   THE COURT:  Oh.
                   THE WITNESS:  Is he -- am I on like -- I'm sorry.
                   THE COURT:  He's paying your costs and mileage.
                   THE WITNESS:  Yeah.  Yeah.  Well, I don't know if I'm
         -- see, we didn't discuss a lot of this because I didn't want
         to --
                   THE COURT:  You didn't?  Before you came in, you
         didn't get this arranged?
                   THE WITNESS:  If I -- okay.  I didn't want to look
         like I was having my testimony bought, okay, so I just said --
                   THE COURT:  Every expert gets paid.
                   THE WITNESS:  I don't want it to look like he's
         buying my testimony.  And  Richard  is an upright guy.  I'm
         sure --
                   MR. KITCHEN:  Your Honor --
                   THE COURT:  Wait a minute.  It may, it may appear
         more that you're on his side and helping him if you come here
         for nothing than if you come here being paid.  Let me just put
         that on the --
                   MR. KITCHEN:  Your Honor, I must respectfully object
         to the Court's educating the witness about these matters to my
         client's possible financial detriment.
                   THE COURT:  Send me the bill.
         BY MR. OSTROWSKI:
         Q.   Okay.  How much income have you derived from your
         association with Mr. Graham?
         A.   Let's see.  Well, $17,000, $18,000 since I've been on, you
         know, since I've been doing -- $17-$18 K, thousand, you know,
         since I've been doing the --
         Q.   $18,000?
         A.   Yeah.  I haven't done taxes this year.  We'll take a
         guess.
         Q.   No wonder you're not charging to be here today.  Okay.
         Now, just another thing before I forget.  You are -- who is the
         current programmer on Mr. Graham's file retrieval system?  Is
         that you, is that Brian Martin?
         A.   That's me.
         Q.   Okay.  And Brian Martin is out of the picture?
         A.   On this retrieval I think he's out of the picture, yeah.
         Q.   I'm just asking you if you know.
                   THE COURT:  You seem to be looking to somebody to get
         an answer.
         BY MR. OSTROWSKI:
         Q.   If you know yourself?
         A.   No.  I think he's out of the -- yes.
                   THE COURT:  All right.
                   THE WITNESS:  As far as I know, he's out of the
         picture.
                   THE COURT:  Draw down the curtain in front of you so
         you don't look for winks of eyes or smiles or nods of heads.
                   THE WITNESS:  I'm un, you know, I was just unsure,
         Your Honor.  I'm sorry.  I'm not familiar, as you're aware,
         with courtroom procedure.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, let me skip over to -- I asked you look at a
         couple other routines.  Can you tell me if you've had a chance
         to look at any of those, and we'll go in that order, and you
         can tell me which one it is.
         A.   Okay.  I haven't looked at them yet.
                   THE COURT:  What are we on now?
                   MR. OSTROWSKI:  Well, I --
                   THE COURT:  Still on 18?
                   MR. OSTROWSKI:  Yeah.  I'm asking him to compare 18
         and 20.  I rattled off a few programs during the break and I'm
         asking him if he's looked at those, and then we'll identify
         them.
                   THE COURT:  On both, both Exhibits.
                   MR. OSTROWSKI:  Yes.
                   THE WITNESS:  Not yet.
         BY MR. OSTROWSKI:
         Q.   What I'm asking you to do, and I'll just tell you the
         whole list because it's short, and you find them if you can,
         there's a program in -- in the Plaintiff's 18 he's got an int
         dir, then there's some paragraph signs, but --
                   THE COURT:  Int what?
                   MR. OSTROWSKI:  Int dir, which I think --
                   THE COURT:  Directions?
                   MR. OSTROWSKI:  -- it means directory.
                   THE COURT:  Directory.
         BY MR. OSTROWSKI:
         Q.   Is there, is there a similar program in the other one, and
         I mean similar in any sense of the word, because we'll get into
         whether they're actually similar when you look at them.  And
         should I tell you what the other ones are, right off?
         A.   Okay.  Help, dir, list, execute and shades.
         Q.   Execute, list shades and what was --
         A.   Okay.  We did help.
         Q.   Help is done.  Execute screen 2.
         A.   Execute screen 2?
         Q.   I'm sorry.  Execute, in other words, the next function is
         screen 2, which I take it, if there's a screen 1, it could
         possibly be similar.  I'd leave that up to you.
         A.   Yeah.  It throws up a screen.
         Q.   Int list, and int shades.
         A.   Uh-huh.
         Q.   That's about --
                   THE COURT:  Wait a minute.  You're back to the uh-
         huhs again.
                   THE WITNESS:  Yes.  Yeah.  I was --
         BY MR. OSTROWSKI:
         Q.   That's all, those are all the ones I'm going to ask you
         about, so if you can --
         A.   Okay.
         Q.   -- take a look at those and --
         A.   Okay.  We did help.
         Q.   Help is done.
         A.   Dir.
                   THE COURT:  D-I-R.
                   THE WITNESS:  I've got to find out what dir does
         here.
                   THE COURT:  D-I-R.
                   THE WITNESS:  Yes, sir.  Would it be okay if I look
         at my V-TOC so I can --
                   THE COURT:  Look at your what?
                   THE WITNESS:  The V -- well, no, I don't need.  I can
         just --
                   THE COURT:  What was the word you used?
                   THE WITNESS:  V-TOC, visual table of contents.
         BY MR. OSTROWSKI:
         Q.   Let me tell you, on Plaintiff's 18, you might look around
         page 9 for dir.  I say about because --
                   THE COURT:  What Exhibit?
                   MR. OSTROWSKI:  On Plaintiff's 18.
                   THE COURT:  18.
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   And on Brian Martin's, which I think we've now numbered,
         that should -- well --
         A.   I don't think there's a dir name.
         Q.   There may not be a dir on there.
         A.   I got to find the corresponding, you know, the
         functionality is what I got to find here, so I got to see what
         dir is doing.
         Q.   Yeah.  There's, on page 7 of --
                   THE COURT:  Of what?
                   MR. OSTROWSKI:  I'm sorry.  I'm sorry, Your Honor.
                   THE COURT:  Page 7 of what?
                   MR. OSTROWSKI:  The index I have for Brian Martin
         refers to, unfortunately refers to 19, so I'm -- scratch that.
         We've already established that 19 is similar.  I'm moving on to
         20.
         BY MR. OSTROWSKI:
         Q.   Is there anything in Brian Martin's that correlates with
         int dir on page, roughly page 9 of Plaintiff's 18?
         A.   Yes.
         Q.   Okay.
         A.   That's where he's calling up, you know, when you make the
         main menu choice and then you go to call up your listings,
         that's, that's what they're doing.
         Q.   Can you identify the page numbers where you find each --
         A.   The menu choice.  Yes, sir.  Okay.  I think in the
         corresponding routine on Plaintiff 20 is get main menu choice,
         and that's get, underscore, main, underscore, menu --
                   THE COURT:  G-E-T?
                   THE WITNESS:  Yes, Your Honor.
                   THE COURT:  And this has not been paginated?
                   MR. OSTROWSKI:  What pages are you on on each one?
                   THE WITNESS:  I'm on, okay, I'm on the routine call.
                   THE COURT:  Is there a page?
                   THE WITNESS:  The routine is called on page 6 in
         Plaintiff 20.
         BY MR. OSTROWSKI:
         Q.   And what about in Plaintiff's 18, int dir?
         A.   Okay.  I'm not sure what page it's called from the routine
         itself, appears on page 8.  The dir routine itself appears on
         page 8 in Plaintiff 18.
         Q.   And have you had a chance to look at those routines?
         A.   Yes.  I just looked at dir, and I, you know, know from
         background, you know, what the get main menu choice does here,
         but I would, I would like to flip to it.  Okay.  Here we go.
         Get main menu choice appears in Plaintiff 20 on page 12.
         Q.   Okay.
         A.   And you're just interested in similarities?
         Q.   Yeah.  First source code and then I'll ask you about
         structure.
         A.   Okay.  Okay.  Yeah, okay, the similarities here start down
         a little, a little farther.  I'm sorry.  I sometimes talk to
         myself.
         Q.   It's all being recorded though.
         A.   All right.  The dir routine on Plaintiff's 20 does --
                   THE COURT:  Where?
                   THE WITNESS:  On page 8 of Plaintiff's 20, does part
         of the stuff that is done in the get main menu choice routine
         on Plaintiff's 20, and that routine covers pages 12 to --
                   THE COURT:  Wait a minute.  You started with 20, page
         8.  Did you mean 18?
                   THE WITNESS:  Yes.  Plaintiff 18, page 8.
                   THE COURT:  All right.
                   THE WITNESS:  The dir routine compares to the get
         main menu choice routine which is found in Plaintiff's Exhibit
         20, page, it's starting on page 12.
         BY MR. OSTROWSKI:
         Q.   Okay.  Are there any similarities in the source code
         between those two functions?
         A.   There's some.  They're not as -- yeah, there are a few.
         Q.   Can you estimate the percentage of similarity?
         A.   I'd put this at 15, 15, maybe 20%.
         Q.   Okay.  And I take it if certain source code -- you can do
         the same function with different source code, correct?
         A.   Yes.
         Q.   But if two programs have the same source code, they're
         going to be doing the same thing?
         A.   Yes.
         Q.   That's like an axiom.
         A.   If there's the same source code, they're the same program.
         Q.   Yeah.  So with respect to the, that part of the program
         which is not the same in the source code, do you find any
         specific similar functions or subroutines, however you want to
         describe it?
         A.   Yeah.  Yeah.  There's some similarities.
         Q.   And what are those?
         A.   Okay.  Okay.  You're setting up your screens in dir, in
         dir on Plaintiff's 18.  You're setting up your screens.  I
         think we're setting up screens here, too.  Wait a minute.  No,
         no, maybe not.  Display category, no.  Boy, there is really not
         a lot there that is similar.  No, there's not, there's not a
         lot of similarity between these.
         Q.   Okay.
         A.   Okay.
         Q.   Can we move on to -- have you located another function
         that I mentioned, and I'll go in the order in which you've
         looked at them or spotted them.  And we're talking about -- we
         just did dir, right?
         A.   Yes, sir.
         Q.   So I suppose we're talking about execute 2, list.
                   THE COURT:  Execute 2?
                   THE WITNESS:  Yes.
                   THE COURT:  EXE or execute?
                   THE WITNESS:  It's spelled out execute.
                   THE COURT:  2?
         BY MR. OSTROWSKI:
         Q.   Yes, but the 2 might, I don't know what significance that
         has.  It might --
         A.   I don't -- okay.  I think that may be execute, because I
         don't recall an execute 2.
         Q.   Well, I'm asking --
                   THE COURT:  You're using 2 also.
                   THE WITNESS:  I didn't find, I don't recall an
         execute 2 in Plaintiff's 18.
                   THE COURT:  All right.
                   THE WITNESS:  I recall an execute.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   What I'm asking you in -- is to look at the execute 2 in
         Plaintiff's 18, which should be around --
                   THE COURT:  Well, he doesn't find the execute 2.  He
         finds an execute.
                   MR. OSTROWSKI:  I'm sorry.
         BY MR. OSTROWSKI:
         Q.   Could you look around page 36.
                   THE COURT:  In 18?
         BY MR. OSTROWSKI:
         Q.   Give or take a page.
                   MR. OSTROWSKI:  I analyzed the wrong Exhibit, Your
         Honor.  I'm sorry.  They may be a half --
                   THE COURT:  In engineering we call that tolerances,
         but go ahead.
                   MR. OSTROWSKI:  Well, I hope you're tolerating it.
         It should be a half a page off, at most.
                   THE WITNESS:  In Plaintiff 18 you're on page 36?
                   MR. OSTROWSKI:  Yeah.
                   THE WITNESS:  No, I'm not --
                   MR. OSTROWSKI:  Do you find any --
                   THE WITNESS:  I'm not finding it here.  I think, I
         recall that routine.  It ought to be in here somewhere.
         Execute.  Okay.  Execute 2, yeah.  It says, execute 2.
         BY MR. OSTROWSKI:
         Q.   Okay.  Can you take a look at that and then see if you can
         find a counterpart to that, however it's labelled.  I take it
         it would be labelled execute something or other.
         A.   Oh.  I don't think -- no, let me check first.
                   THE COURT:  This is one of those situations, to use
         the vernacular, perhaps you better put your brain in gear
         before you open your mouth.
                   THE WITNESS:  Yes, Your Honor.  You got it.  Okay.
         Execute.
                   THE COURT:  In other words, you do a lot of talking
         to yourself while you're thinking, but all that talking is
         going on the record.
                   THE WITNESS:  It's garbage.  Yeah.  That has got to
         be basic.  Okay.  I can't ask Rick a question?  Okay.  How much
         you paying me, but -- okay.  Execute 2 in Plaintiff's 18 --
                   MR. OSTROWSKI:  Right.
                   THE WITNESS:  -- deals with verifying -- okay, deals
         with running a basic program.
                   THE COURT:  Do you find a 2 there?
                   THE WITNESS:  Yes.  Execute 2.
                   THE COURT:  All right.
                   THE WITNESS:  And that's on page 29 in Plaintiff 28.
                   MR. OSTROWSKI:  I was way off, okay.
         BY MR. OSTROWSKI:
         Q.   And what does that do?
         A.   Okay.
         Q.   Briefly?
         A.   That confirms that you really want to run a basic program
         and then it makes sure you have the stuff necessary to run that
         program, ie., GW Basic or Basic A, some supporting software.
         Q.   Is there anything in Plaintiff --
                   THE COURT:  Ie. is Latin and not computerese.
                   THE WITNESS:  Yes.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   Is there anything in Plaintiff's 20 that does a similar
         function?
         A.   I don't know if we were still using Basic programs, you
         know, had the Basic shell at that point or not, and if we're
         not, if we weren't using the Basic, then there's nothing there.
         If we were, then --
                   THE COURT:  Who is we?
                   THE WITNESS:  Night Owl's Publisher.
                   THE COURT:  Oh, you're a part of that?
                   THE WITNESS:  Well, I'm independent but you know,
         it's my code, it's his code, it's, you know, it's --
         BY MR. OSTROWSKI:
         Q.   Do you have 19 there?
         A.   I don't believe so.  No, sir, I do not.  Okay.  Let me
         trace it.  I gave it back.
         Q.   Showing you Plaintiff's 19, is that the one that says
         complete --
         A.   Source code of Brian's work is on it.
         Q.   Okay.
         A.   Plaintiff's 19.
         Q.   Can you look on page 28 and see if you find an execute 2
         function?
         A.   Execute 2.  There you go.
         Q.   Okay.
         A.   Yeah.  This looks similar.
         Q.   That looks similar to Plaintiff's 18?
         A.   Yes.
         Q.   Now, taking, taking the execute 2, which is in Brian's, I
         think we're calling it his first version.
                   THE COURT:  Plaintiff 19?
                   MR. OSTROWSKI:  Plaintiff's 19.
         BY MR. OSTROWSKI:
         Q.   Does that aid you in finding any similar program in the
         other program that Brian worked on, which is Plaintiff's 20?
         A.   No.
         Q.   Okay.  Thank you.  Now, did you locate just a plain old
         execute in --
                   THE COURT:  Plain old, meaning without the 2?
                   MR. OSTROWSKI:  Yeah.  Let me just check my notes,
         Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  Did you see an execute program on, in Plaintiff's
         18, somewhere around the middle, I wish I could tell you
         exactly.
         A.   Yeah.  I --
                   THE COURT:  Go back to your page 36, plus or minus
         one.
                   MR. OSTROWSKI:  I was off by six pages on that.  I
         did it on the plane, Your Honor, so somebody must have bumped
         into me.
                   THE WITNESS:  Okay.  Yeah.  Here you go.  Plaintiff's
         18, page 16, we got int execute.
                   MR. OSTROWSKI:   Okay.  And --
                   THE COURT:  Without the 2.
                   MR. OSTROWSKI:  Do you find --
                   THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Can you take a quick look at that, just to get a rough
         idea, and then hopefully you can see if there's any similar
         program on Plaintiff's 20.
                   THE COURT:  The cup's over on the other table, over
         here.
                   THE WITNESS:  Of course, there's a similar function
         in Plaintiff's 20, unless I missed my guess here it's going to
         be display file manipulation window.  That's what I'm going to
         look for.  Okay.   Yes.  Okay.  That's --
         BY MR. OSTROWSKI:
         Q.   What page and name of the -- what's the name and the page?
         A.   Okay.  Plaintiff's 20.
                   THE COURT:  Plaintiff's 20?  Is this in 20, Mr.
         Swanson.
                   THE WITNESS:  Yes, sir.  Okay.  Plaintiff's 20, page
         23 begins, the routine display file manipulation window.
         BY MR. OSTROWSKI:
         Q.   Is there any similar source code between that program and
         int execute in Plaintiff's 18?
         A.   Yes, there is.
         Q.   And look at it, look at it as long as you need to, and
         tell me, what is the percentage of similar source code?
         A.   Okay.  Okay.  That's going to be kind of low.  Yeah.
         We'll go with 15 or 20% again.
         Q.   Okay.  What --
         A.   Call it 15.
         Q.   With respect to those portions of the routine that are not
         similar in source code, are they similar in specific function?
         A.   Yeah.
         Q.   And how so?
         A.   Yeah.  Some of them.
         Q.   Okay.
         A.   Okay.  The similar parts were thrown up a, were thrown up
         a window that, okay, this is your highlighted file, this is
         your directory, and here are some commands you can use on this
         screen.  Then it goes down into, both of them go down into
         getting a command from the user, a command key, and executing
         the appropriate function.
         Q.   Okay.
         A.   And a little cleanup.
         Q.   Any other similarities?
         A.   Okay.  They both throw up, yeah, they both throw up a
         screen.  They both clean up --
                   THE COURT:  Screen and window the same thing?
                   THE WITNESS:  Yes.
                   THE COURT:  You said throw up a window before.
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   Any other similar functions?
         A.   Okay.  There's one, that's the bulk of it, there's one
         little thing here.
                   THE COURT:  Where?
                   THE WITNESS:  On Plaintiff's 18, this while thing.
         Okay.  Yeah.  That's -- he's getting the selected file name.
         That's part of your window display.  Yeah.  That's about it for
         similarity, yes.
         BY MR. OSTROWSKI:
         Q.   The last thing you mentioned, he's getting what?
         A.   He's just pulling in the --
                   THE COURT:  He is who?
                   THE WITNESS:  Larry's code.  He --
                   THE COURT:  18?
                   THE WITNESS:  Yes.  He's just getting the name of the
         highlighted file on the screen.
         BY MR. OSTROWSKI:
         Q.   Now with respect to the functions that you stated were
         similar, above and beyond the source code, were those the only
         ways to accomplish those tasks, or were there other ways?
         A.   No.  I'm sure you could do it a bunch of different ways.
         There are different ways.
         Q.   Okay.  But you notice the similarity in the way it was
         done on Plaintiff's 18 and 20?
         A.   There's some similarity, yes.
         Q.   Okay.  Now, I just want to move on to the next one that
         you've been able to find, and I'll prompt you if -- have you
         located another one, shades?
         A.   Okay.
                   THE COURT:  Excuse me?
                   THE WITNESS:  Shades I think is towards the bottom on
         18.
                   MR. OSTROWSKI:  Int.  On Plaintiff's 18 it's called
         int shades, which is --
                   THE COURT:  Spell that.
                   MR. OSTROWSKI:  -- right near the end.  Should be.
                   THE WITNESS:  Yeah.
                   THE COURT:  Capital N?
                   MR. OSTROWSKI:  I said, right near the end of the
         program, for the --
                   THE COURT:  Oh.  I don't know what you're saying
         though.
                   MR. OSTROWSKI:  I'm sorry.  I-N-T, space, S-H-A-D-S.
                   THE COURT:  Ink shade.
                   MR. OSTROWSKI:  Int.  It stands for integer, I
         believe.
                   THE COURT:  I-N --
                   MR. OSTROWSKI:  I-N-T.
                   THE COURT:  T, as in Thomas.
                   MR. OSTROWSKI:  Yeah.
         BY MR. OSTROWSKI:
         Q.   Is that correct, that int stands for integer?
         A.   Yes.
         Q.   Okay.  And in Plaintiff's 18, have you located that near
         the end?
         A.   Yes, I have.  That's on page 32 in Plaintiff's 18.
         Q.   Is there any similar program in Plaintiff's 20?
         A.   A similar routine?  Well, no.  No.  It's, you're
         stretching to say they're similar.  Management of colors is
         handled in a little bit different ways.
         Q.   In which?
         A.   Between 18 and 20.
                   THE COURT:  Management of?
                   THE WITNESS:  Management of the screen colors.  You
         know, I want blue borders, I don't want this, you know.  Let me
         see if I can -- you want me to find the --
                   MR. OSTROWSKI:  Yeah.
                   THE WITNESS:  -- nearest -- okay.  Probably the
         nearest thing is going to be set, set color and set -- is that
         set color and set monitor.  Set monochrome -- I'm sorry.
         BY MR. OSTROWSKI:
         Q.   Well, I was just going to say, is this the function that
         has all these case 1, case 2?
         A.   Yes.
         Q.   Which directs the computer on what color is going to be on
         the monitor, something like that?
         A.   Yes.
         Q.   Okay.  And I take it you're looking for anything similar
         in 20?
         A.   I'm looking for the nearest similar routine.  That's going
         to be set monochrome or set color.
         Q.   Okay.
         A.   And I know what they do.  See, well, you know, you tell me
         what you want to know.
         Q.   Well, you're still looking for it, I take it?
         A.   Yes.  Okay.  Set color, set monochrome.  Here we go.
         Q.   Okay.  What page do you have there on 20 now?
         A.   Okay.  On Plaintiff's 20, I have page 61.  It contains
         both the routines, set color and set monochrome.
         Q.   And, okay, you've named the routines.  Now, are there
         similarities in source code between that and int shades on
         Plaintiff's 18?
         A.   No, not -- no, not in the -- from nothing, no.  In the
         broadest sense, well, we're defining some colors here.
         Q.   But that's not particularly original --
         A.   No, they both define colors.
         Q.   -- I take it, to define colors?
         A.   No.
         Q.   Okay.  Are there any, in the overall structure of that
         subroutine, are there similarities in function in a very
         detailed way?
         A.   No.
         Q.   Okay.  Can you find -- I don't think we've done int list,
         or have we?
         A.   Should I be tracking my, you know, making notes on where
         we are in this thing, if I'm going to need to get back.
                   THE COURT:  Need paper?
                   MR. OSTROWSKI:  I should have had an extra cup of
         coffee this morning.
         BY MR. OSTROWSKI:
         Q.   Okay.  I know we've done help, we've done execute.
                   THE COURT:  Do you need paper?
                   THE WITNESS:  No.  I have a sheet, Your Honor.  Thank
         you.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   We've done help, we've done execute, we've done execute 2.
         We just did shades.  I think we're working on list.
         A.   Okay.
                   THE COURT:  List?
                   THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   And int screen?
                   MR. OSTROWSKI:  Or did we do int screen, Denis?
                   MR. KITCHEN:  No.  I don't think you did.
                   THE WITNESS:  I don't think we did, we didn't do
         screens.
         BY MR. OSTROWSKI:
         Q.   Okay.  List and int screen, I guess are the only ones
         remaining.
         A.   Okay.
         Q.   What's the difference between shades and screen?
         A.   Shades --
         Q.   Shades is just colors?
         A.   Okay.  It's the way in which they're calling up these
         colors.  Shades --
         Q.   I mean just generally.
         A.   Shades explicitly redefines your colors, every time you
         call it.  The set color and the set mono, they just set up an
         initial definition and then you refer to it later.  That's the
         chief --
         Q.   Okay.
         A.   That's the, you know, a major one.
         Q.   So have you located either list or screen?
         A.   No.  I'm flipping.
         Q.   Now, on --
         A.   See the listing that is.
         Q.   Now, screen might be screen or screen 1 or screen 2?
         A.   Okay.  I got a screen 2 here.
         Q.   I guess, you're looking on 18 first, I take it?
         A.   Yes, sir.
         Q.   Okay.  Screen 2.
                   THE COURT:  That's in 18?
                   MR. OSTROWSKI:  That's on -- what page is that on?
                   THE WITNESS:  Page 17 on Plaintiff 18.
         BY MR. OSTROWSKI:
         Q.   How -- and that's called screen 2?
         A.   That's called screen 2.
         Q.   Okay.  Do you find any similar program on -- well, first
         of all, let me go to Plaintiff's 19 and ask you to look around
         page 17.
         A.   Page 70?
         Q.   17.  For a screen 2.
         A.   Screen 2.
         Q.   Okay.
         A.   Page 17.
         Q.   Now, on, between 18 and 19, are they the same programs?
                   THE COURT:  17 and 19?
                   MR. OSTROWSKI:  I'm sorry.
                   THE COURT:  17 in 19?
                   MR. OSTROWSKI:  Between 18 and 19.
                   THE COURT:  Right.
         BY MR. OSTROWSKI:
         Q.   Are they the same program?
         A.   These are quite similar.  They're quite similar.
         Q.   In fact, they're identical, aren't they?
         A.   So far, they're looking identical.  I'm just doing, I'm
         doing a line at a time here.  Okay.  Yeah.
         Q.   Okay.  You've only taken a quick glance, but you haven't
         spotted any differences at all, have you?
         A.   That's correct.
         Q.   Okay.  And that's in the source code?
         A.   That's correct.
         Q.   So all the functions would be identical?
         A.   Yeah, these two are identical.
         Q.   All the structure would be identical?
         A.   That's correct.
         Q.   Okay.
         A.   Well, yeah.
         Q.   Yeah.  Going from 18 and 19, which are identical, is there
         anything similar in 20?  Whether it's labelled screen or some
         other program.
         A.   Display -- okay.  All he's doing in screen 2 really is
         you're just throwing up a window in a box.
                   THE COURT:  Screen 2, in where?
                   THE WITNESS:  In screen 2, in both Plaintiff's 18 and
         19.
                   THE COURT:  Well, you said they were practically
         identical.
                   THE WITNESS:  Yeah.  You're -- he's just throwing up
         a box here and clearing a box.  You know, putting up a little,
         a nice isolated box on the screen with a border around it.
         BY MR. OSTROWSKI:
         Q.   I take it there's any number of ways to do that, however?
         A.   Yes.
         Q.   Okay.
         A.   And I know we draw boxes in here.
         Q.   In Plaintiff's -- I'm sorry.  Go ahead.
         A.   I, I don't know if it's tied -- if we take, you know, if
         we're pulling out one routine to do the box or if we do it
         individually as needed.
         Q.   Well, you say we, but you didn't work on 20?
         A.   Right.
         Q.   You worked on 21?
         A.   Right.
         Q.   Okay.  Is there any similar to that in, to that program,
         which appears on 18 and 19, is there anything similar in 20,
         whether it's labelled that way or not?
         A.   I would assume that there's something in there.
                   THE COURT:  Don't assume.
                   THE WITNESS:  Okay.
                   THE COURT:  Unless it's something you can reliably
         do.
                   THE WITNESS:  Okay.  Well, let me, I better find it
         then.  I'm just going to look around for some likely places.
                   MR. OSTROWSKI:  This is our second last comparison.
                   THE WITNESS:  Draw border is a good possibility.
         Okay.  And we're talking about Plaintiff's 20 here.
                   MR. OSTROWSKI:  Right.
                   THE WITNESS:  The one we're looking for.  Okay.  Here
         we go.  Probably your nearest match is going to be draw, the
         routine draw border.
                   MR. OSTROWSKI:  Okay.
                   THE WITNESS:  Which appears in Plaintiff's 20.
                   THE COURT:  Routine what?
                   THE WITNESS:  Draw border.  That's draw --
                   THE COURT:  Routine draw quarter.
                   THE WITNESS:  Border.  Draw, underscore border.  That
         appears in Plaintiff's 20, starting on page 60.
         BY MR. OSTROWSKI:
         Q.   And are there any -- what's that called again?
         A.   Draw, underscore border.  Draw under border.
         Q.   Okay.  Are there any similarities in source code between
         draw border and, in Plaintiff's 20, and screen 2 in 18 and 19?
         A.   Oh, yeah.  You're going to have to -- yeah, there's going
         to have to be some, because this is --
         Q.   What is the percentage of similarity in the source code?
                   THE COURT:  You're just guessing.  You say there has
         to be some, and now he's asking for some --
                   THE WITNESS:  No.  There's got to be some because
         you're --
                   THE COURT:  All right.  Some can be 1%, right?
                   THE WITNESS:  Right.  I'm going to tighten it up
         here.  Okay.  These are -- we've got a line of code that's
         similar and then a line of code that's different.  Let me --
         can I --
         BY MR. OSTROWSKI:
         Q.   Well, just overall, have you had a chance to look at it?
         A.   Yes.
         Q.   How long is the program, lines?
         A.   Oh, they're a shorty.  They're half, half page.
         Q.   Okay.  Can you, can you take a look at each and just give
         us an estimate of the similarity in source code?
         A.   Okay.  I would, on a line by line I'd say 50%.  I'd really
         say less than that.  I'd say like 30 because you're passed on
         different arguments with the one, and they're present in the
         Plaintiff's 18.
         Q.   So about half or more is not similar?
         A.   Yes.
         Q.   And with respect to that half, do they have similar detail
         functions?
         A.   These call no other --
                   THE COURT:  This is the half that's not similar or
         the half that --
                   MR. OSTROWSKI:  Yes.  The half that's not similar,
         because we've -- yeah.
                   THE WITNESS:  That's not similar.  No.  The half
         that's not similar, you're not calling any further user to find
         support functions.
         BY MR. OSTROWSKI:
         Q.   Okay.  The last section I was going to ask you about, in
         these versions anyway, was list, int list, which was in, should
         be in Plaintiff's 18.
         A.   Okay.
         Q.   I hesitate to give you a page number.
         A.   I wonder if that was towards the --
         Q.   I think it's towards the end.  It should be.  It's a long
         one, too.
         A.   List, here we go.
         Q.   Okay.
         A.   Plaintiff's 18, page 30, about halfway down the page it
         starts.
         Q.   Okay.  And --
                   THE COURT:  What's it say there, int list?
                   THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now I'm going to ask you to -- well, let's go to
         19, Plaintiff's 19, page 28, and ask you if those programs are
         similar in source code.
                   THE COURT:  Similar to int list?
                   MR. OSTROWSKI:  Yes.
                   THE WITNESS:  They're similar, yeah.
         BY MR. OSTROWSKI:
         Q.   Okay.  There's very few differences in the, even in the
         source code, isn't that correct?
         A.   Yeah.  They're looking like they're matching up pretty
         well.
         Q.   Okay.  And I'd ask you to go from 18 and 19, it's pretty
         much the same program, and compare that, see if there's
         anything in 20 that matches.
         A.   Okay.
         Q.   That is roughly the same.  And then I'll ask you more
         detailed questions.
         A.   Okay.  I'm trying to think what would be the nearest --
         okay.  Hang on.  I got to be sure -- we're dealing with a
         couple files here.  I've got to -- you wanted me to look in
         Plaintiff's 20 for --
         Q.   Yes.
         A.   Okay.  Well, this must be, looks like it's looking at a
         view and not a dir file.
                   THE COURT:  None of this is getting on the record,
         and I don't know if it should be or not.  Some is and some
         isn't.
                   MR. OSTROWSKI:  Well, it sounds like he's just
         thinking out loud and so I'm not concerned.
                   THE COURT: I know it,  I just noticed he wasn't
         thinking out loud into the microphone so probably it's not
         being recorded, which is probably the best.
         BY MR. OSTROWSKI:
         Q.   Okay.
         A.   Okay.  Plaintiff's 18, page 30, list routine is similar to
         Plaintiff's 20, page 31, view zip file.
         Q.   Do you mean that in terms of --
                   THE COURT:  Excuse me.  What was that?  Page 30, 31,
         what?
                   THE WITNESS:  View zip file.
                   THE COURT:  Capital U space zip.
                   THE WITNESS:  V-I-E-W, underscore, zip, underscore,
         file.
         BY MR. OSTROWSKI:
         Q.   When you say similar, do you mean in source code?
         A.   Okay.  In -- no.
         Q.   I'd ask if there was source code first and then we can go
         on to function.
         A.   Okay.  Let me check.
         Q.   I'm asking for the degree of similarity in source code.
         Percentage?
         A.   This is about 20-25%.
                   THE COURT:  Similar.
                   THE WITNESS:  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   And with respect to the portions that are not similar in
         source code, are there any similar functions or structure?
         A.   Well, yeah.  You're doing -- you're -- this is the nearest
         match I could find, you know, and so I am looking for
         similarity in function.  Okay.  Yes, there is some similarity
         in function between the two.
         Q.   And what is that?
         A.   Okay.  We're going in, again we throw up a screen, we
         allow -- and throw up a list, and we allow the user to navigate
         the list.
         Q.   Now, the way -- okay, any other similarities?
         A.   They do some -- there's a little bit of allowing the user
         to input some more contact sensitive commands, you know, that
         he can do a few more commands off of this screen.
                   THE COURT:  This is what?
                   THE WITNESS:  This is an either, that's similar to
         these.
                   THE COURT:  I know, but what, both Exhibits?
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, with respect to the functions that you said
         are similar, throwing up the screen and creating a contact
         sensitive command, are there numerous ways to accomplish that
         function for a program?
         A.   Yeah.  There's a couple ways you usually stick to.
         Q.   Okay.  So that, the way it was done in that program is not
         necessarily the only way to do it or one of only two ways?
         A.   That's correct.
                   THE COURT:  That program is which Exhibit?
                   MR. OSTROWSKI:  Plaintiff's, well, we're comparing 20
         and 18.  List to view zip.
                   MR. KITCHEN:  Well, I'll object.  When he says that
         program, unless he can say how program 18 does it versus
         program 20.
                   MR. OSTROWSKI:  Well, actually, I'm sorry, let me
         clarify.  I'm mistaken.  I'm asking him strictly about
         Plaintiff's 20 with respect to the functions that he found
         similar, which I take it are throwing up the screen and contact
         sensitive command.
         BY MR. OSTROWSKI:
         Q.   And my question was, there are more than one or two ways
         to do those functions, is that correct?
         A.   That's correct.
         Q.   Okay.  Now, let me just ask you, with respect to the five
         or six things we spoke about, help, execute, screen, list,
         shades, and int main, and I think also dir, and there may have
         been a couple of executes, and now I've stated so many things
         that you probably can't remember them, but my question is, to
         go to Plaintiff's 21, do you have that up there?
         A.   Yes, sir.
         Q.   Let's go in some sort of order, and ask you if there are
         any programs, subroutines, that are roughly similar to the ones
         I just mentioned in Plaintiff's 18.  And I'll, I'll read them
         off again, if you need them, but execute, list --
         A.   Yeah.  They're going to be similar.
         Q.   If you can answer off the top of your head, fine.
         A.   They are going to be similar functions.  One is just, you
         know --
         Q.   Well, can you take them in some sort of order, and
         whatever preference you want to deal with them.
         A.   Okay.
                   THE COURT:  Well, can we operate on an MO here where
         while you're thinking and mumbling that we can go off the
         record, and then you say, quote, here we go, unquote, and we'll
         go back on the record?
                   THE WITNESS:  Certainly, Your Honor.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   Mr. Swanson, I'm showing you Plaintiff's Exhibit 35.  Can
         you identify that?
                   THE COURT:  Wait a minute.  We're on the record?
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE WITNESS:  Yeah.  This is my backup of the Night
         Owl's retrieval.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, you've looked at Plaintiff's Exhibit 21, which
         is a printout?
         A.   Yes.
         Q.   Is that the same program that's on Plaintiff's 35 in
         computer form?
         A.   Should be.
                   THE COURT:  Should be or is?
                   THE WITNESS:  I can't say it is.  I can't, I can't
         guarantee it is.  It should be.  I don't, I don't trust it
         unless I see it.
                   MR. OSTROWSKI:  Your Honor, would you prefer that
         this be offered into evidence at this time, or --
                   THE COURT:  I don't care.
                   MR. OSTROWSKI:  Okay.  I'd ask that --
                   THE COURT:  What did he do?
         BY MR. OSTROWSKI:
         Q.   I'd ask that you put it into the computer and bring it up
         on the screen, and my first question is, is it the same as
         Plaintiff's 21?  My question is, is Plaintiff's 35, which is
         the floppy disk, the same as Plaintiff's 21, which is on paper?
                   THE COURT:  Why don't you play the emcee.  Pull that
         microphone out of its hawsel there, Mr. Ostrowski.  Pull it
         right out.  Pull it out.
                   MR. OSTROWSKI:  I feel like Tony Bennett.
                   THE COURT:  That's what you have to do.  When you're
         talking, you talk into it, and put it in front of his mouth
         when he's talking.
         BY MR. OSTROWSKI:
         Q.   Okay.  What I'm going to ask you to do is, are those six
         or seven programs that we've been over, and we can specify them
         if you like, or you can specify them in order in which you find
         them, are they, are there similar functions in Plaintiff's
         Exhibit 21 and 35 as there are in Plaintiff's 18?
         A.   Okay.  Well, 21 and 35 are the same, so they're going to
         be similar.
                   MR. OSTROWSKI:  Yeah.  I'm going to go over here.
                   THE COURT:  No, no.  You -- he's monkeying with --
         he's going to be doodling with the computer from point to
         point.
                   MR. OSTROWSKI:  Well, hold it.  I have to get my
         notes.
                   THE WITNESS:  Okay.  And Plaintiff's 18, let me grab
         Plaintiff's 18.
                   MR. OSTROWSKI:  I'll get it.
                   THE WITNESS:  Thank you.  What page was that on, on
         18?
                   MR. OSTROWSKI:  Right at the beginning.  Near the
         beginning.
                   THE COURT:  Of 18?
                   MR. OSTROWSKI:  Okay.  We're looking at help.
                   THE COURT:  Of 18?
                   MR. OSTROWSKI:  Of 18, which is on page 5.
         BY MR. OSTROWSKI:
         Q.   And is there anything similar on, on your program, 35?
         A.   Yes.
         Q.   Okay.  Have you located the, your entire function, of
         help?
         A.   Yes.
         Q.   Okay.  With respect to the source codes, what's the
         percentage of similarity?
         A.   I put this Plaintiff's, or the Exhibit 35, help function
         at about 25% similar to the Plaintiff's 18 help function.
         Q.   In source code?
         A.   Yes.
         Q.   And with respect to the part that's not similar, are there
         similar specific functions?
         A.   Okay.  We're using, we're using the help lines that are
         the same main data structure.
         Q.   What do you mean by data structure being the same?
         A.   This is a table of, it's a method of organizing your data.
         It's a data structure.
         Q.   And that is the same on both programs?
         A.   It's named the same, and it's a char array.
         Q.   What do you mean char?
         A.   Char, this --
         Q.   Character?
         A.   Character.
         Q.   It's an abbreviation for character on the program?
         A.   Yes, sir.  This, it's a char array for both outlines and
         you know, they're just, the length may be different.  Yeah,
         there's going to be some similarity.
         Q.   Any other similarities in function?
         A.   Okay.  Well, of course, you get, okay, this is context
         sensitive help, so you've got to find out which, what your
         context is.  We come in and we search for an index, or we
         search for our place, the appropriate help.
         Q.   Would you say that this is a sophisticated program?
         A.   Which?
         Q.   You're, the one you're looking at on 35, which, have you
         called yours help?
         A.   Yes.
         Q.   Okay.  Now, would a novice programmer develop a
         sophisticated program, generally?
         A.   No.
         Q.   Okay.  Now, you identified one similar function, the
         character array and data structure, or is that two --
         A.   That's, yeah, similar data structure.
         Q.   Okay.  Any other similar functions?
         A.   Okay.  Now, you know, you're -- no.
         Q.   Okay.  Then let's move on to the next similar function you
         can find, and we're talking again execute, screen, list.
         A.   Do you have a preference?
         Q.   Whatever you find first.  It's up to you.
         A.   Let's look at 18 and see what those
         Q.   On 18, well, how about int main?
                   THE COURT:  Pardon me?
                   MR. OSTROWSKI:  I-N-T main.  That's one of the first
         few pages of 18.
                   THE COURT:  One of the first few pages?
                   MR. OSTROWSKI:  I have page 4 on my version but it
         may be 3 on yours.
                   THE COURT:  Who has the original?
                   THE WITNESS:  Main starts on page 3.
                   THE COURT:  Why don't you use the original?  You're
         going to have different pagination.
                   MR. OSTROWSKI:  The problem, Your Honor, is, I did my
         analysis of Defendant's 1 and I can't identify Defendant's 1
         unless Mr. -- I suppose it's marked for identification, but
         it's really Mr. James' program and I haven't really fully
         identified it, and I'm at risk of asking other witnesses about
         it.
                   THE WITNESS:  Okay.  I found -- okay.  On Plaintiff's
         18, page 3, we start the main line, int main.
                   THE COURT:  What's it say?
                   THE WITNESS:  Int --
                   THE COURT:  Int main, or what?
                   THE WITNESS:  Int, yeah, int main.
                   THE COURT:  What's, that's what it said.
                   THE WITNESS:  Yes, sir.
         BY MR. OSTROWSKI:
         Q.   And is there any similar function or subroutine on
         Plaintiff's 35?
                   THE COURT:  And you're really asking, is there any
         similar function on 21 because 35 is the disk version of 21.
                   MR. OSTROWSKI:  Yes.  21/35.
                   THE WITNESS:  Okay.  You're looking for similarity
         between 18 and 35, 21, whatever.
                   MR. OSTROWSKI:  Yes.
                   THE WITNESS:  Okay.
         BY MR. OSTROWSKI:
         Q.   Is it possible to do a symbol search,  to see if there's
         any --
         A.   I can search on a string.
         Q.   Take an obvious, one of the more basic elements of the
         program in 18 and see if there's the similar language in your
         program?
         A.   There's going to be similar, you know, your C functions
         are going to be calling some of those --
         Q.   Will that help you find similarities?
         A.   Not really.  Not really.
         Q.   Okay.  Now I'd just ask you to do it your own way.
         A.   And you're looking for a percentage of similarities here?
         Q.   Well, any --
                   THE COURT:  He's looking for similarities, period,
         and then we'll get to percentages, I assume, if any.
                   THE WITNESS:  There are similarities.
         BY MR. OSTROWSKI:
         Q.   Okay.  Between 35 and 18?
         A.   Yes, sir.
         Q.   Okay.  And what, speaking of source codes first, what is
         the percentage of similarity?
                   THE COURT:  In what code?
                   MR. OSTROWSKI:  Source code.
                   THE COURT:  Source code.  Excuse me?
                   MR. OSTROWSKI:  You got to speak up, or think to
         yourself.
                   THE COURT:  Yeah.  Are we off the record, and you're
         going to tell us when to get back on, Mr. Swanson?
                   THE WITNESS:  I put it at 15%, even 10%.
         BY MR. OSTROWSKI:
         Q.   Okay.  And with respect to the parts that are not similar
         in source code, are they similar in structure or function?
         A.   No.  Similar in function, yes.  You've got a file
         retrieval and you're calling up a menu.  Similar in, what was
         the other one, method.  This is not similar in method.
         Q.   Okay.  There's no similar functions at all, beyond the
         similar source code?
         A.   Minimal.  Few enough so that it's coincidental.
         Q.   Okay.  Let's move on then to the next one we can locate
         and the list we're looking for is execute, screen, list, and
         shades?
         A.   We did -- did we do execute?
         Q.   I don't -- not on 21, to my knowledge.
         A.   Okay.
         Q.   Okay.  You've located, what have you located in 35 that is
         roughly speaking in 18?
         A.   Okay.  In Exhibit 35 I've located the routine display,
         file manipulation window.  Routine actually starts --
         Q.   You're going a little too fast.  What did you locate?
         A.   Display, underscore, file, underscore, manipulation,
         underscore, window, and in the code on 35 that starts on page,
         on line 2198.
         Q.   Now, what page are you on in your floppy?  Do they have
         page numbers?
         A.   I have a line number, 2198.  In this Exhibit?
         Q.   Well, I guess if you could it fast, then that would help.
         A.   Okay.  Who's got a calculator?  2198 over 66.  Could we go
         off the record?  Okay.  This same display file manipulation
         window appears in Plaintiff 21, starting at the top of page 36.
         Q.   Okay.  And that's similar to what in Plaintiff's 18?
         A.   That is similar to Plaintiff's 18 execute routine starting
         on page 16.
         Q.   And what's the degree of similarity with respect to source
         codes alone?
         A.   I'd put this at 7 percent similarity.
                   THE COURT:  Mr. Ostrowski, you want an answer?
                   MR. OSTROWSKI:  Yes, Your Honor.  Sorry.
         BY MR. OSTROWSKI:
         Q.   Okay.  I asked you about source code similarity between
         execute on Plaintiff's 18 and display file manipulation window
         on Plaintiff's 21/35?
         A.   I put that at about 7%.
         Q.   7%?
         A.   Yes.
         Q.   Okay.  With respect to the rest of the program that's not
         similar in source code, are they similar in function or
         structure?
         A.   Yes.
         Q.   And what are the similarities?
         A.   In each case, you are, you're thrown up a window, you are
         displaying valid commands that the user can use, and you are
         then awaiting input on those commands.  And in each case you
         also make the appropriate routine call.  So we throw up a
         window.  You say you can use these commands.  You allow the
         user to select one of those commands, and then we go do that
         command.
         Q.   Now, did you get those function ideas from looking at the
         prior programs, such as 18, 19 and Plaintiff's 20?
         A.   No.  All I have to do is -- I got it from this.
         Q.   From which?
         A.   From Plaintiff's -- Plaintiff's 18 is the one you asked,
         is the one I'm looking at, and that --
         Q.   No, no.  I'm saying, when you --
                   THE COURT:  No.  He's going back to the generation of
         Plaintiff 21 and Plaintiff 35.
                   MR. OSTROWSKI:  When you, when you wrote --
                   THE COURT:  In generating it, did you get that from
         18?  In producing it?
                   THE WITNESS:  Oh, no, no.
                   THE COURT:  In inventing it.
                   THE WITNESS:  No, no.
                   THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q.   Okay.  So the similarity in source code of 7%, is that
         just an accident or what?
         A.   They are doing similar kind of things, you're going to
         have to have some similarity.
         Q.   Okay.  It's not based on the fact that you started out
         with Plaintiff's 20, which may or may not have been similar to
         Plaintiff's 18?
         A.   That's correct.
         Q.   Okay.  So we've covered help, main and execute, and now
         we're looking for execute 2, possibly screen, list and shades,
         four more.
         A.   Could we go off the record, please?
         Q.   Okay.  You were looking for the next program you could
         find on our informal list?
         A.   Yes.
         Q.   What have you found?
         A.   I've found that in Exhibit 35, 35 and 21, on Exhibit 21,
         page 38 begins the routine execute, underscore, program.  That
         is some similarity to Plaintiff's 18 routine execute 2, which
         begins on page 29.
         Q.   And what's the degree of similarity in the source code?
         A.   25%.
         Q.   And what's the degree of similarity in function of those
         parts that are not similar in the source code?
         A.   Similarity in function is high.  Let's go 80%.
         Q.   Does that 80% pertain to the 75% that is not the same in
         source code or the whole program?
         A.   That's the whole routine.
         Q.   Okay.  Can you give us one or two examples of similar
         functions?
         A.   Yes.  In each case we go in and we verify that we're
         dealing with a basic program.  We identify it by a BAS
         extension.  And then you, once you determine that, then you
         continue to make sure that you have the necessary software
         somewhere on the user's system to run that BAS file.  We then
         continue -- okay.  We then continue to throw up a window.  You
         let the, you display commands so the users know what's going
         on.  That's about it.
         Q.   Okay.  Now, are there any number of ways to accomplish
         those functions, in general?
         A.   Yeah.  There's a couple of ways you could do this.
         Q.   Well, by a couple, are there more than two or three?
         A.   I'd say yeah, let's, let's call it three, four.  You know,
         you can do something real wild and strange and not obvious, if
         you want.
         Q.   Okay.  But that's --
         A.   Standard, yeah.  just a few.
         Q.   But within the realm of efficiency, there are different
         ways to do it?
         A.   This is correct.
         Q.   Okay.  Now, is this execute -- what did you call it, the
         name of the -- in your program it's called execute, in 35?
         A.   Execute, underscore, program.
         Q.   Would you consider that to be a sophisticated program?
         A.   This routine?
         Q.   Yes.
         A.   No.
         Q.   Okay.
         A.   This is just a part.
         Q.   Could a novice have written it?
         A.   Sure.
         Q.   Okay.  And --
         A.   The routine or the whole program?  Just the routine?
         Q.   Just the execute program?
         A.   Yes.  Just the execute routine, sure.
         Q.   Okay.  Now, we're moving on to whatever we can find next,
         list, shades, whatever you can find first.  It's up to you
         because you're the one that has to do the work.
         A.   Could we go off the record, please?
         Q.   Sure.
                   THE COURT:  Tomorrow morning, available 9:00 to 12:00
         and if we aren't finished then, you've got to go off to October
         12.
                   MR. OSTROWSKI:  I take it we'll be going the rest of
         the day?
                   THE COURT:  Yeah.
                   MR. OSTROWSKI:  Okay.
                   THE COURT:  Not beyond 5:00 o'clock though.
                   MR. OSTROWSKI:  If we -- and then we have tomorrow
         morning.  Otherwise we move --
                   THE COURT:  Tomorrow morning up till --
                   MR. OSTROWSKI:  If we press --
                   THE COURT:  -- up till noon.
                   MR. OSTROWSKI:  I have three or four witness -- four
         or five witnesses, but other than Mr. James they should all be
         short.
                   THE COURT:  Well, I'm just telling you what you have.
         You've got tomorrow morning 9:00 to 12:00, today up till 5:00
         o'clock I can give you.  Then we got to go off till October
         12th.
                   MR. KITCHEN:  Your Honor, if there were real hope of
         completing by tomorrow morning, obviously it would be better if
         we got the thing done with, but if we can't complete tomorrow
         morning, if at all possible I would like to avoid tomorrow
         morning.  And in other words, if we have to --
                   THE COURT:  Do you have some special problem,
         tomorrow morning?
                   MR. KITCHEN:  Well, only personal plans, Your Honor,
         which --
                   THE COURT:  Well, that's all right.  Personal plans
         are personal plans.
                   MR. KITCHEN:  Right.  Okay.  But in any event, you
         know, if we've got to break to October 12th, I would rather
         break at the end of this afternoon to October 12th, rather than
         also taking up tomorrow morning.  And it may be difficult
         anyway, but --
                   THE COURT:  I share your pessimism about being able
         to complete it in another half -- I mean this afternoon and
         tomorrow morning, the way things are going.
                   MR. KITCHEN:  I daresay it's going to be unlikely
         that I'll be resting before the end of the day, because I think
         Mr. Swanson will be on here a little while longer.  And then
         Mr. Graham, I know --
                   THE COURT:  We have to complete him.
                   MR. KITCHEN:  Yes, and I'm sure the redirect has got
         to be somewhat extensive, and I'm sure that will inspire some
         recross.
                   THE COURT:  All right.  We'll go today till 5:00
         o'clock and then we'll go off to October 12th.
                   MR. KITCHEN:  Thank you.
                   THE WITNESS:  I'm ready to go on the record when you
         are.
                   THE COURT:  We're going to lunch.
              (Lunch recess taken.)
                   THE COURT:  All right.  Everybody well fed and
         prepared?
                   MR. OSTROWSKI:  Yes, Your Honor.
                   THE COURT:  Mr. Swanson has that lean and hungry
         look.
                   MR. OSTROWSKI:  Shakespeare.  Ceasar's I think.
         Okay.
                   THE COURT:  I see that one guy doesn't find it too
         cold in here.
                   THE WITNESS:  I'm ready to go.
                   CONTINUED CROSS EXAMINATION
         BY MR. OSTROWSKI:
         Q.   Okay.  Before the break, I had asked you to search out any
         other similarities between Plaintiff's 18 and Plaintiff's
         21/35, and I believe you've located a couple, and whatever
         you're ready to talk about, why don't you identify that.
         A.   Okay.  We were talking about show text.  I think we were
         talking about show text file, which is the --
                   THE COURT:  Talking about what, Mr. Swanson?  Show
         tech?
                   THE WITNESS:  Show text.
                   THE COURT:  Show touch?
                   THE WITNESS:  Show text, T-E-X --
                   THE COURT:  T-E-C -- T-E-S --  S-H-O-W, space?
                   THE WITNESS:  Yes.  Show, S-H-O-W, underscore, text,
         T-E-X-T, files.  And that is on Exhibit 35.  That's a -- okay,
         line 4420.  And in Exhibit 21 --
         BY MR. OSTROWSKI:
         Q.   Where is the page?
                   THE COURT:  I put aside two days, beginning the 12th.
         I'm beginning to wonder if that's enough.
                   THE WITNESS:  Okay.  I can answer the questions I
         suspect are going to be asked.
         BY MR. OSTROWSKI:
         Q.   Well, I take it that if you divide 4420 by 66 you get the
         page number of Exhibit 21?
         A.   Yeah, you ought to be pretty close.  You ought to be
         pretty close.
         Q.   Okay.
                   THE COURT:  Seems to be 79.
                   THE WITNESS:  On page 72 of Plaintiff 21 the routine
         show text file begins.
         BY MR. OSTROWSKI:
         Q.   Okay.  And what about --
                   THE COURT:  Shows what, Mr. Swanson?
                   THE WITNESS:  The routine show text file begins on
         page 72 of Plaintiff 21.
                   THE COURT:  21.
         BY MR. OSTROWSKI:
         Q.   Okay.  And what about Plaintiff's 18, similar program?
         A.   Okay.  That was, that was list.
         Q.   Okay.  And list --
                   THE COURT:  L-I-S, Mr. Swanson, L-I-S?
                   MR. OSTROWSKI:  L-I-S-T.
                   THE WITNESS:  L-I-S-T.
                   THE COURT:  L-I-S-T.
         BY MR. OSTROWSKI:
         Q.   And that's near the end, I believe, in 18?
         A.   Yes.  Okay.  I have it.  On Plaintiff's 18, page 30.
         Q.   Okay.  What are the similarities in source code between
         those two programs?
         A.   About 30%.
         Q.   And disregarding the portions that are similar, if you
         can, in source code, and taking the other portion that's not
         similar in source code, are there similar functions or
         structure?
         A.   Yes.
         Q.   And what are those similarities?
         A.   They're about, they're about 40%.
         Q.   Could you list some of those?
         A.   Certainly.  Okay.  You're going to come in, you display a
         screen, you allow the user to enter input, or you know, enter
         a command.  And you process, you process his valid choice.
         Q.   Choice of what?
         A.   Choice of command.
         Q.   And are there any other, are there any number of ways to
         do that, perform that function?
         A.   There are a few, yeah.
         Q.   Okay.  So the way it's done in, the way it's done in
         Exhibit 35, Plaintiff's, is just one of a number of ways to do
         that?
         A.   Yes.
         Q.   Okay.  Are there any other similarities in between list
         and show text file?
         A.   No.  That, that covers.
         Q.   Okay.  Then I'd ask you to move on to -- okay.  We've
         covered help, main, execute, execute 2, and show -- and list,
         and I think we have, do we have screen and shades left?
         A.   I think we did -- okay, we didn't do shades versus this.
         Q.   Yeah.  Why don't you do that, if you can.  I think you
         said that 18 and 20 were not similar on shades, is that
         correct?
         A.   That's correct.
         Q.   Okay.
         A.   And the --
         Q.   Now I'm asking you about 18 and 20 -- 21/35?
         A.   And they are not similar.
         Q.   And you've looked at and they're not similar?
         A.   Yes.  This is, yeah, 18 is not similar to 21.
         Q.   Even in source codes?
         A.   No.
         Q.   Okay.  And --
         A.   Only vaguely.  No, it's not similar.
         Q.   Did you locate -- I don't think we did screen yet, did we?
         A.   I don't know if we did screen on this one, on 21.  Okay.
         Screen in Plaintiff's 18 which appears on page 35 of that
         Exhibit, all it really does is, it just throws up a box.
                   COURT RECORDER:  Can you speak up, please?
                   THE COURT:  You can pull that microphone out and just
         carry it with you, but put it down, but you have to speak into
         it, one way or the other.
                   THE WITNESS:  Yeah.
                   THE COURT:  We don't have any of these fancy lapel
         pins we can give you.
                   THE WITNESS:  I'm sorry, Your Honor.  Screen, the
         screen routine on Plaintiff 18, page 35, all it basically does
         is draw a box.  You give it a box size to draw and it draws it
         and clears the screen.
         BY MR. OSTROWSKI:
         Q.   Okay.  And --
         A.   We're going to do that like that.  I think it's done a
         couple of different ways, or you know, a couple of different
         places in here.  It's just a different method.  It's -- yeah,
         our corresponding routine in Exhibit 35 and 21 is draw,
         underscore, a border.  And that begins at, on Plaintiff 18 it
         begins in line 6355 of the code.
         Q.   You mean 35?
         A.   Yes.
         Q.   65, what?
         A.   Line 6355 is the line number it starts on.
         Q.   And where's that in -- that's --
         A.   Page 90.
         Q.   Well, actually I was asking you about 18.  Let me see if
         I can give you a clue.
                   MR. KITCHEN:  Page 35 on 18.
                   THE WITNESS:  Yes.  What was I looking for?  Screen.
         Yeah.  Plaintiff 18, page 35 has the routine screen, which is
         your nearest corresponding.
         BY MR. OSTROWSKI:
         Q.   And is there any similarity in the source code between 35
         and 18?
         A.   Yes.
         Q.   Okay.  What's the percentage of similarity?
         A.   Okay.  I'd refer back to the way it was compared on, what
         was the last line, 20?
         Q.   20.
         A.   Because this is, the routine in 21 is, I could take a look
         but it looks like the same routine as appears in 35 here.
         Q.   Same in the source codes?
         A.   Yes.
         Q.   Okay.  The last one I don't think I asked you about, int
         dir.  Or, did I?  On 35.
         A.   This one?
                   THE COURT:  Int what?
                   MR. OSTROWSKI:  I-N-T D-I-R.
                   THE COURT:  V-I-R?
                   MR. OSTROWSKI:  D-I-R, as in dog.
                   THE COURT:  D-I-R, is that it?  No space?
                   MR. OSTROWSKI:  There is a space.  It's I-N-T, space.
                   THE COURT:  I-N-T, space, D-I-R.
                   MR. OSTROWSKI:  Yes.
         BY MR. OSTROWSKI:
         Q.   Now, on 18, that should be around 7 or 8 or so.  It's a
         pretty long program.
         A.   Okay.  This is, the important distinction is this is a
         routine, not a program.
         Q.   Okay.  Yeah.  I understand.
         A.   Well, they're kind of the same, they're kind of not.  I'm
         looking for dir on 18.
         Q.   It should be after install, by a page or two.
         A.   Dir, okay, the routine dir appears in Plaintiff 18 on page
         8.
         Q.   Now, is there anything similar in --
                   THE COURT:  21?
         BY MR. OSTROWSKI:
         Q.   35/21?
         A.   What was our, our routine that corresponded to dir in --
         Q.   Get main menu choice, I think.
         A.   Okay.  Can I go off the record just for a second, please.
         Q.   Okay.  Mr. Swanson, I ask you to compare the int, int
         space dir subroutine on Plaintiff's 18 with anything on your
         disk that was roughly similar, and that's Plaintiff's 35/21?
         A.   Yes.  And the similar routine on Plaintiff 25 is --
                   THE COURT:  Plaintiff 25?
                   THE WITNESS:  Excuse me.
                   THE COURT:  Now you mixed it up.  21 and 35 have
         become 25.  All right.
                   THE WITNESS:  35, the disk.  The routine is display,
         underscore, file, underscore, listing, that appears at line
         1562.  Now, on Plaintiff 21 this routine starts, the header
         starts at the bottom of page 25
         BY MR. OSTROWSKI:
         Q.   And have you had a chance to compare source code
         similarities?
         A.   Yes, I have.
         Q.   And what is the percentage of similarity between the two
         source codes?
                   THE COURT:  Two what code?
         BY MR. OSTROWSKI:
         Q.   Between the programs, the two programs source codes.
                   THE COURT:  The two he's mentioned.
                   MR. OSTROWSKI:  Yes.
                   THE WITNESS:  I'd say 25%.
         BY MR. OSTROWSKI:
         Q.   And are there any similarities in -- I'm sorry.  I don't
         want to interrupt you.  Go ahead.
         A.   Okay.  The two routines, there's a number of them up in
         there.  The two routines are of different size.
         Q.   Okay.
         A.   So the 25% of that -- okay, of the smaller routine, about
         25% of that smaller routine matches the larger routine.
         Q.   Okay.  And by the small one you mean Plaintiff's 18?
         A.   DIR, yes.
         Q.   D-I-R?
         A.   Yes, sir.
         Q.   Okay.  So the portion carried over would be somewhat less
         than 25% in, as a percentage of what's in 35?
         A.   That's correct.
         Q.   Display file listing.  Okay.  With regard to the part that
         is not literally the same in the source code, are there similar
         functions?
         A.   Yes.
         Q.   And specific -- what are they specifically?
         A.   Well --
         Q.   You've  been estimating percentage of similar functions,
         which I didn't ask you to do because I wasn't sure how to do
         it, but since you've done it, do you have a number --
         A.   It is, you're right, it's not a, not a real good measure,
         but --
         Q.   Okay.  Well, just tell me what specific functions you find
         that are similar?
                   THE COURT:  Why if it's not a very good measure
         should I be concerned with it?
                   THE WITNESS:  I thought that's what I was asked.
                   THE COURT:  I know you were, but I'm asking Mr.
         Ostrowski.
                   MR. OSTROWSKI:  I'm just deferring to the expert
         witness, Your Honor.
                   THE COURT:  He says it's not a very good measure.  If
         it's not a very good measure, why should I be concerned with
         it?
                   MR. OSTROWSKI:  At this point, I can't think of a
         good reason.  I was only asking him the percentages with
         respect to the source code, which is a numerical calculation.
                   THE COURT:  Tempus fudges.
                   MR. OSTROWSKI:  That one I did not read.  Okay.
                   THE WITNESS:  The question, where are we at?
         BY MR. OSTROWSKI:
         Q.   Yeah.  What specific functions were similar between the
         two programs?
         A.   Okay.  Functions, functionality, they do not, okay, they
         don't call similar supporting functions, but their
         functionality.  All right.  They open a screen, they do some
         error checking to make sure the file they want --
                   THE COURT:  And this is all your thinking, leading to
         a percentage, because that's what you were asked.
                   THE WITNESS:  Yes.
                   THE COURT:  All right.  So you're just thinking.
                   MR. OSTROWSKI:  No, actually, Your Honor, I asked him
         about --
                   THE COURT:  Well, you wanted percentages.
                   MR. OSTROWSKI:  Well, he said that he's not
         comfortable doing that with functions, so I asked him just to
         simply list --
                   THE COURT:  Oh, I see.
                   MR. OSTROWSKI:  -- and describe.
                   THE WITNESS:  I could give you a rough measure but
         it's not a real, it doesn't mean a lot, you know, it doesn't
         really apply, like 30%, 40%, you know --
         BY MR. OSTROWSKI:
         Q.   Well, I take it that you could literally add up specific
         functions?
         A.   You could go line by line.
         Q.   But they're not all of the same importance?
         A.   Yeah.
                   THE COURT:  Yes, they're not.
                   THE WITNESS:  That's correct, they're not.
         BY MR. OSTROWSKI:
         Q.   So that the percentage wouldn't really mean much?
         A.   That's correct.
         Q.   Okay.  But, so just list the specific similarities that
         you find and describe them briefly, if you would?
         A.   Okay.  Each of them checks to make sure that the file they
         need exists.  They have -- they build the file, the path that
         goes to that file.  They display a screen and in this case the,
         the screen that contains the listing of files in their
         descriptions.  And then they allow -- they display commands
         that are available, and then they allow the user to choose from
         a valid command and will process that command.  That's about
         it.
         Q.   Okay.  Now, there are things added to 35 that are not in
         any way, shape or form in 18's int space dir, correct?  It's
         longer?
         A.   It's longer.  There --
         Q.   Is it longer because of programming language or
         documentation?
         A.   Okay.  They're both, there's documentation in 21 and 35,
         and the way he, he does a little bit more in this, in this
         routine itself, instead of breaking it, like in 18 it's broken
         down --
         Q.   Well, there's -- I'm sorry.  Go ahead.
         A.   In 18 some of the same functions he will do with several
         lines here, you know, he's just taking care of it here, they're
         pushed down and they get a sub, supporting routine to handle
         those functions.
         Q.   Okay.  But what I'm asking you is, what new functions are
         added in 35 that are not in 18?
         A.   Okay.
         Q.   The -- perhaps even commands or -- a command is one line
         of code, right?
         A.   Yes.
         Q.   Well, I guess I'm just asking you about specific functions
         or subroutines, sub subroutines?
         A.   Yeah.  Okay.  The commands that are available from dir in
         Plaintiff's 18 are, okay, there's, you can get to the user
         directory.  You can get, you can do --
         Q.   That's new?
         A.   No, this is not new.  Okay.  You want just, just the new
         ones, right?
         Q.   Yeah, because you said it was longer and I assume that's
         because there's new stuff, and that's what I'm asking.
         A.   In part, yes, in part, yes.  Okay.  I want to check these.
         Let me just look at the command lines.  Okay. The new stuff in
         35, we have help.  Well, we also list on the command bar that
         you can page up and page down.  DOS shell is there.
         Q.   Is that new?
         A.   No.  I'm sorry.  I'm thinking out loud again here.  Okay.
         You've got page up, page down.  We got help.  That's, that's
         not in the command bar here, unless he's -- I didn't see it
         hidden in here.  There's not a lot that's really new.  It's
         just done a different way.
         Q.   Okay.  Help is new and page up and down is new?
         A.   Yes.
         Q.   Now, I'm going to ask you to disregard those two elements,
         and ask you, with respect to the remainder of 35/21 display
         file listing, is it substantially similar to the int dir in
         Plaintiff's 18?
         A.   No.  He does things -- no.  He does things different ways.
         Q.   In what different ways?
         A.   Okay.  We -- in 35 he uses a, his own --
                   THE COURT:  He who?  He you?
                   THE WITNESS:  No.  That -- yeah, that would be me.
         I'm using a, my own, or historically, you know, Brian's, now my
         own routine for a keyboard input in dir I think he's going to
         get char with -- get char here, which is a C routine.  When we,
         when we go down to execute in the selected user's valid
         commands, I'm breaking it out in the switch statement, and he
         is, he's using if statements, and in each case here, on one of
         my, on a specific command, I go in, I go into a little more
         detail in this specific routine.  In other words, some of the
         necessary functionality is brought up and included in this
         routine.  And now I'm speaking of 35 here, okay, versus 18 that
         takes and assigns that to a support routine.  The two specific
         ones I'm looking at here are DOS command and help.
         BY MR. OSTROWSKI:
         Q.   Okay.  I don't have any more questions about these
         comparisons, but what I'd like you to do now is, I'm handing
         you Plaintiff's Exhibit 7.
                   MR. OSTROWSKI:   Your  Honor,  I'm going to ask him
         to --
                   THE COURT:  Plaintiff's 7?
                   MR. OSTROWSKI:  Yes, Your Honor.  It's PDSI-004-1 CD
         ROM release of Night Owl.  Pretty much this is going to be all
         visual, Your Honor, so if you, if you would like to come up and
         oversee, be my guest.  Or we can move the monitor around.
                   THE COURT:  No, no.  I'll come down.
                   MR. OSTROWSKI:  Okay.
         BY MR. OSTROWSKI:
         Q.   Okay.  You might -- can you identify the Exhibit I just
         handed you?
         A.   This is --
         Q.   Just by number.
         A.   Okay.  Night Owl's PDSI-004-1.
         Q.   What's the Plaintiff's -- what's the number of the
         Exhibit?
         A.   I'm sorry.  Plaintiff's Exhibit 7.
         Q.   Okay.  And based -- in general, what are you holding?
         A.   This is the Night Owl's CD ROM file retrieval, one of, you
         know, one of their periodic issues.
         Q.   Okay.  I'd ask you to just put that in the computer, and
         you know how to do these things.
         A.   Is there a ROM fired up on this?
         Q.   Just basically, what kind of computer do you see that
         you're working with here?  Is this -- I don't know if it really
         matters, but you're working --
         A.   We had a 386 SX.
         Q.   And I take it there's a hard drive?
         A.   Yes.
         Q.   And there's monitor and keyboard.  It's not too different
         from most computers?
         A.   That's correct.
         Q.   It's a pretty decent computer, on average, is it?  Slow
         down.  Let me get over there with my notes.  I take it this is
         all preliminary stuff, but you're fired --
         A.   Okay.  I did a D, I got DOS and it's putting me back in
         the J and L Services shell.
         Q.   Okay.  You're in -- you're not in the CD ROM at this
         point.  Perhaps we could go off the record.
              (Discussion off the record.)
         BY MR. OSTROWSKI:
         Q.   On the computer screen, you've put the CD ROM in the hard
         drive?
         A.   Yes.
         Q.   And are you in the hard drive, as far as DOS?
         A.   I've gone to CD ROM and I'm ready to fire up Exhibit 7,
         executable file Night.
         Q.   Okay.  And you know, because you've worked on it, that the
         execute command is Night?
         A.   Yes.
         Q.   And you, what --
         A.   The date on the XE?
         Q.   Well, do you see the -- I guess you did a directory of DOS
         to see what's on the CD ROM?
         A.   Yes.
         Q.   Okay.  And does that tell you the date -- well, does that
         tell you the date -- is it apparent that somebody at some point
         in producing this CD ROM put a date on there indicating, I
         guess the date that the program was -- well, what does the date
         on the directory indicate to you?
         A.   The date on the directory of Night is 9/30/91.
         Q.   Now, that's simply something somebody put in at some
         point?
         A.   When you make a new XE it gives you your current date, so
         this, this version was finalized on 9/30/91.
         Q.   If the person who put that in was telling the truth.
         A.   Well, it's put in there, it's put in there automatically.
         If you want to be dishonest, you can go in and change it.
         Q.   Okay.  You can put February 17th, 1992?
         A.   If you want to.
         Q.   Any date you could?
         A.   You can fudge it, sure.
         Q.   But in the normal course of events, people assume that
         those are true.  Okay.  And what is the date on there for
         Night?
         A.   9/30/91.
         Q.   Okay.  And you've typed in the command execute the Night
         program which is what?
         A.   Night, N-I-G-H-T.
         Q.   Okay.  And you know that that's how you fire up the
         program.  So I'd ask you to simply execute the program, which
         you do by pressing enter?
         A.   Yes.
         Q.   Okay.
                   THE COURT:  I see now that's followed by EXE, is that
         always there for execute?
                   THE WITNESS:  Yes.  That, execute is executable.
         It's something the computer can understand.
                   THE COURT:  But when it says EXE that's what it
         means.
                   THE WITNESS:  Yes.  Okay.  The environment isn't set.
         BY MR. OSTROWSKI:
         Q.   Do we have a glitch?
         A.   Our environment isn't set here.
         Q.   Do we have to exit out of the --
         A.   Can we install this?  Okay.  We're going to install
         automatically.  Let's just run this, I don't want to install
         this.
         Q.   Do we want to go off the record for a moment until you get
         back on?
         A.   Yeah.
              (Discussion off the record.)
         BY MR. OSTROWSKI:
         Q.   Okay.  I take it that you, you typed in Night and execute,
         and then there was a glitch that had nothing to do with these
         proceedings.  We went off the record and did you, you fixed the
         glitch so that you could execute the Night command?
         A.   Yes.   We installed it and now we're at the first screen
         of the Night.
         Q.   Okay.  And so you're on the first screen of Night.  Okay.
         And what do you see?
         A.   Okay.  We got your main menu with the menu numbers.  We
         have a, okay, version 3.  We got free space and we got a
         listing of some of the commands that are available to us.
         Q.   Okay.  And you know, basically, what is the file retrieval
         program that produces this screen, and that's produced all
         these commands that we've talked about.  What does it expect
         the user to do at about this point?
         A.   Select a menu option to narrow his choices as to what type
         of thing he's going to look for.
         Q.   Okay.  I see -- well, let's see, I see home and personal
         on there, number 26?
         A.   Okay.
         Q.   Now, does that mean, does that mean that there's some
         programs about home and personal in that area?
         A.   Yes.
         Q.   So in order to get access to that, what would you do?
         A.   I type in 26, enter, and it -- okay, now this is the
         listing of home and personal, okay, we see at the top here.
         This is the category in general we're looking at.  And these
         are all listings of name of the file, its size and bytes, its
         date, and a quick description.  In this case it's a single
         line, looks like they're all single lines.
         Q.   Okay.  Now, can you go back up to the top?
         A.   Yes.
         Q.   Could you just go to -- what is -- where is that first
         program up at the top?
         A.   Okay.  Axis 3, mature version of best PD Home Accounting
         Program.  Okay.  Let's say you want to look at that.  Just go
         to the top, just --
         Q.   I don't want to be rude, but I have to sort of ask you the
         questions.
         A.   No, no, I understand.  The tape doesn't see.
         Q.   You know much more about this than I do.  Can I just ask,
         okay, that's a specific program in the category of, my memory
         is going again, home and personal programs?
         A.   Yes, sir.
         Q.   It's on the top there, I didn't see it?
         A.   Yes, sir.
         Q.   Okay.  Now, let's say I wanted to use that.  What would I
         do at this point?
         A.   Okay.  There's no command -- okay, carriage return.  Well,
         to abbreviate it, you press enter.
         Q.   Okay.
         A.   Okay.  And it refers to the tag file.  Notice this, the
         account sys 3 is in a different color, or the highlighted file
         rather.  Okay.  It says highlighted file is, you know, here's
         your offset.  Okay.  We selected that specific zip file.
         Q.   Okay.
         A.   It gives us a list of further actions we can take with
         this zip file.
         Q.   Okay.  Let me just ask you to -- can you cancel out and go
         back to that?
         A.   Yes.
         Q.   Okay.
         A.   Okay.  We're back to the category listing screen.
         Q.   Okay.  What are your options at this screen?  We've
         already gone through, you can pick a program and we'll get to
         that later what happens, but you can pick a specific program.
         What else can you do?
         A.   Okay.  You can, this is a, this is a large list and it
         takes up more than one screen.  You can navigate the list by
         use of the up, down, page down, page up, home and end keys.
         Q.   Can you go to the end?
         A.   Yes.
         Q.   See what happens?
         A.   Yes.
         Q.   Can you tell how many, how long that was, or is there a
         page --
         A.   Okay.  Line 181, here you go.  That's --
         Q.   So there's about 181 programs or --
         A.   A little less than 181.  They're coming in, some of them
         have a couple lines description.
         Q.   Okay.  What else can you do with it, other than scroll up
         and down and --
         A.   You can quit out of this thing, you can tag a file, or you
         can tag several files to mark them for further actions.  You
         can get help on this screen.  Oh, geez, I'm confused, I need
         help.  F-1 and that will give you a little, a little bit of
         information about what's going on with this screen.
         Q.   Okay.  Can you -- how do you unzip a file?  Can you unzip
         a file at this point?
         A.   Yes.
         Q.   And what does unzip mean again?
         A.   Zip is a commercial method of compressing files so they
         don't take up as much space.
         Q.   Right.
         A.   We want to stuff as much as we can on this.  Unzipping it
         means I'm decompressing it so it can be used.  You can't use it
         in its compressed state.
         Q.   Can you go to the first program, the accounting program?
         A.   Yes.
         Q.   And unzip that.  How do you unzip that?
         A.   Okay.  I press enter to select it.  It shows us our
         highlighted files, and now it shows us a list of options.
         Extract is the one we want.
         Q.   That means unzip?
         A.   Yes.
         Q.   More or less?
         A.   Yes.
         Q.   Okay.  Why don't you do that.
         A.   Okay X - - we get a choice here of tagged or highlighted
         because I tagged a bunch of files.  We want H for highlighted.
         Q.   What's the difference between tagged and highlighted?
         A.   The highlighted file, there's only going to be one
         highlighted file.  That was your little black bar that was
         moving up and down.  Let me, okay,  let me back out again of
         this and I'll show you.
         Q.   Okay.
         A.   And I'm going to say no, I'm going to keep --
         Q.   I missed that.  I'm sorry.
         A.   No problem.  Okay.  Down -- okay, those.  These are
         tagged.
         Q.   What does that mean, tagged?
         A.   If, suppose you want to examine a group of -- there are a
         couple files in here that hold your interest, instead of just
         one.  Okay.  This is the highlight bar, this yellow on black.
         That's the highlighted file.  We get one highlight bar, one
         highlighted file.  If you want to tag, okay, I press space to
         tag.
         Q.   So highlighted means you pick one and --
         A.   Yeah.  Highlighted --
         Q.   Tag means more than one?
         A.   Tag means you're one of a group of, possibly a group of
         files that you've selected for further action.
         Q.   Why don't you go back to the first program and unzip that,
         see how that works?
         A.   I'm going to untag everything here to lose that confusion.
         Okay.  So we're back at the top, account sys 3, we select enter
         to display our file manipulation window.  Okay.  It also makes
         available to us further extract, commands we're going to
         extract, X.  Okay.  Now it's calling the PK.UNZIP utility.
         Q.   You're talking a little too fast, for me, anyway.
         A.   I'm sorry.  Okay.  We've selected the extract command.
         Q.   You've extracted?
         A.   And it's in the process of doing that.
         Q.   The machine's working now?
         A.   Yes.  Now, I, I was just in there and I just unzipped them
         before.
         Q.   Okay.
         A.   And I didn't delete them, so it comes out and it says,
         well, it's already there, do you want to overwrite it.
         Q.   Okay.
         A.   They're the same.  We're going to save us some time.  I'm
         going to say no on all of these.
         Q.   See, you've unzipped a file?
         A.   Yes.
         Q.   It's ready to use.  What do you do to actually run it?
         A.   Okay.
         Q.   Or is there another step in between?
         A.   We're getting to that.  I don't know, okay, I don't know
         if we can run it from here.
         Q.   Have you ever used this program before?
         A.   This version, no.
         Q.   Okay.
         A.   I haven't seen this version.
         Q.   You're just going on your general experience?
         A.   Yes.
         Q.   Very good.
         A.   Okay.  Now, I don't see a execute command along the bottom
         here, so I'm going to go to help.  Maybe it will tell me if
         there's one.  F-1, help.  Okay.  Read, and these apparently are
         commands.  R, read a document.  D, DOS shell.  Okay.  U, run
         your user's preferred utility.  So we can run it from here.
         Q.   I see execute 2 on the screen?
         A.   That --
         Q.   That's what we've spoken about?
         A.   Oh, okay.  Yeah.  This is, okay, this is not a routine.
         This is a --
         Q.   Command?
         A.   -- one of the contexts.  This is a help context, okay.
         We're -- this just heads a listing.  What -- okay, it's context
         sensitive help, okay.  So I'm going down and I say, well, the
         program has to know where I am.  It's queuing off of this
         little line that's in, you know, I can show you in the listing
         here.
         Q.   Right.
         A.   See, we've got, okay, right there, there's execute 1.  See
         how the listings are similar there?
                   THE COURT:  What you pointed to on the screen was
         execute 2.
                   THE WITNESS:  Yeah, okay.  Here's execute 2, and see,
         there's the same stuff there, read document.  We're just
         pulling a portion of this list up to look at, is all.
         BY MR. OSTROWSKI:
         Q.   Do you know how to run a file at this point from the help?
         A.   How to, okay, U, we went to help, we said U, so I'm going
         to get out of help, execute, I'm going to say U, as it
         suggested.  Okay.  Okay.  And this is our list of files.
         Let's, I'm looking for a, for a way to execute.  I'm going to
         back up again, because I'm a little confused here.  Okay.  That
         was, I was on the wrong file.  Okay.  Let's go right to the
         top.  This is a con file.  We ought to be able to execute this.
         So we're going to say U, okay.  We'll go down, okay, it's not
         marked on a -- I don't see a --
         Q.   If you pressed enter, would that execute?
         A.   Let's give it a try.  Oh, no, that's giving us a read, and
         that's an EXE file, they don't read well.  Okay.
         Q.   Can you hit escape from this?
         A.   Escape ought to back us out to the last string, yeah.
         Q.   Okay.  Now, if you hit enter, what will happen?  Could you
         hit enter?
         A.   Let's hit enter for a minute.  Okay.  Yeah.  Okay.  We get
         a, okay, then it asks us, do you want to execute accounts 1, 2,
         3, which is, was contained in this account sys 3.
         Q.   Okay.
         A.   I'm going to say yes.
         Q.   Hold on.  Let me ask you about enter.  Enter generally
         means -- enter is commonly used to execute all kinds of files,
         isn't it?
         A.   It's your, in the context of a program, no.  It's, you use
         enter to terminate a command line so it's going to be the last
         thing you type before your command is executed.
         Q.   Well, in --
                   THE COURT:  So if you've mistakenly hit the wrong key
         nothing will happen unless and until you hit enter.
                   THE WITNESS:  Right, yes.
         BY MR. OSTROWSKI:
         Q.   In DOS -- now, DOS is a pretty important language, right?
         A.   It's a operating system, yes.  It's widespread, yeah.
         Q.   Okay.  Now, enter is the execute command in DOS, isn't it?
         A.   No.  That is the, that's the -- that signals to the
         computer that you have completed a command line, and then it
         takes the whole line you've typed in prior to that, and says,
         I'm going to do this.
         Q.   Right.
         A.   That whole section prior, that's really your command.
         Enter just says --
         Q.   No.  I'm not asking about command.  I'm asking about
         execute.  To execute a command in DOS, you hit enter?
         A.   Yes.
         Q.   Okay.  Now, you're at the point where you can now execute,
         and it says yes, no or cancel?
         A.   Yes.
         Q.   Okay.  Why don't we press yes, why don't we press yes and
         see what happens?
         A.   Okay.  Want a yes.
         Q.   How did you do yes, just Y?
         A.   Just said Y.
         Q.   And where are we now?
         A.   Okay.  Looks like convert accounts, looks like we're
         starting to run it.
         Q.   The computer is working?
         A.   Yeah.  Okay.  We're into this and it wants to convert us
         to a Lotus 1-2-3 format.
                   THE COURT:  Who's that Kenneth W. Ruggles?
                   THE WITNESS:  I imagine he is the contributor -- he
         must be the guy who contributed this program.
                   THE COURT:  Contributed to who or what?
                   THE WITNESS:  He would have -- okay.  Now, I'm
         unsure.  I'm unsure for certain all the ways they delivered
         this, but the general way it comes in is shareware author is
         going to upload to a bulletin board, he's going to, he would
         send this whole package, this is the original accounts sys 3
         that we saw way back in the beginning there.
         BY MR. OSTROWSKI:
         Q.   I -- I'm sorry.  Continue.  I interrupted.
         A.   Okay.  And he's going to package that zip file, put
         everything he needs in that zip file, upload the zip file to
         the bulletin board, send along a description, this is what it
         is.
         Q.   Now, in a typical --
                   THE COURT:  So he's somebody who generated this in
         the first instance and he's made it available.
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   In the typical CD ROM there would be possibly dozens of
         copyright notices by individual authors?
         A.   Yes.
         Q.   Which are not the manufacturer or the publisher?
         A.   That's correct.
         Q.   Okay.  And perhaps there might even be hundreds?
         A.   Thousands.
         Q.   Thousands.  Okay.  Okay.  Are we ready to operate?  Is the
         computer still working?
         A.   This is not a good one.  This wants to do stuff with
         Lotus.
         Q.   This is a bad example to use?
         A.   Let's pull another example up here.
         Q.   Yeah.  Why don't you do that, maybe two or three or
         whatever.
         A.   If it will let me out.
         Q.   How do you escape, by the way?
         A.   Escape usually, but this one is not cooperating with me.
         Let's try some -- okay.  Go a little harder.  Okay.  Control
         break gets us back.  Let's get out to something else.  Let's
         pull something else.  We're going to delete those.
         Q.   Why don't you describe what you're doing now while you're
         doing it?
         A.   I'm exiting back through the -- okay.  I'm backtracking
         all the way back to the list that we originally selected
         accounts sys 3  from.   So I'm going to select a whole new --
         Q.   Now, was it pretty -- it was pretty easy to get out of
         that, given that you've never used this program before?
         A.   Yeah.  I've used similar.  You know, it's --
         Q.   Took a few seconds?
         A.   Yes.
         Q.   Okay.
         A.   Well, if it fools me, it's going to be -- oh, good,
         Biorhythm Checker from California.
         Q.   Okay.  That's the program?
         A.   Okay.
         Q.   We're going to -- what do we do first, we unzip it, right?
         A.   Okay.  We're going to go through the same process we went
         through accounts.sys.  We're going to, okay, we've highlighted
         the file, Biorhythm.zip.  We're going to enter.  Okay.  And we
         throw up our, the file manipulation window, which names the
         highlit file and gives us our available commands.  Again, we
         are going to extract, X, okay, and now it's calling PK.UNZIP
         and it's decompressing that file.
         Q.   Okay.
         A.   Okay.  There's only one in there.  Great.  So --
         Q.   I see nothing on the screen.  Is it working?
         A.   This is Biocom is the only file contained in that zip
         file.
         Q.   But what -- why  is there nothing on the screen, other
         than --
         A.   There's a --
                   THE COURT:  Well, there is something, under the bar.
                   MR. OSTROWSKI:  I'm sorry, Your Honor.
                   THE WITNESS:  It's just one line.  You know, just,
         there's just one file there.  You know, it's a single line.
         BY MR. OSTROWSKI:
         Q.   Oh, I'm sorry.  We have not executed -- you've unzipped
         it, and now, what do we need to do to execute it?
         A.   Okay.  We're going to enter.  Again, it asks us, execute
         Biocom, yes, no, cancel.  We'll say yes, Y.  Okay.  And it's
         firing up.  Okay.  We got a copyright screen, a, you know,
         please send me money for shareware.
         Q.   Can -- where's the copyright notice there?
         A.   Okay.  Okay.  I don't see it -- okay.  Here's our -- okay.
         There's no copyright notice.  There's the address, and send
         money here if you want more, address.
         Q.   There is information about where to contact the author of
         this program?
         A.   Okay.
         Q.   An address?
         A.   These are the people that's selling it.  You said there's
         a trademark.
         Q.   At the top.
         A.   Team cycle.
         Q.   At the top.
         A.   Oh, okay.  Life Cycles, trademark.
         Q.   Okay.
         A.   Okay.
         Q.   And is there information about where to contact this
         particular author?
         A.   I don't know if this is the author.  These are the people
         that are selling it.  I would assume you could get to him
         through them.  You know, that's where you'd start looking.
         Q.   Now, I take it at this point we're in the program?
         A.   Yes.
         Q.   And you can do various things with the program?
         A.   Yes.
         Q.   If you're interested in whatever this program is about?
         A.   Yes.
         Q.   Okay.  Why don't we exit, how do you exit out of the
         program?  Let's say we're done.
         A.   Okay.  This, this may vary with individual programs, but
         I'm going to press any key first.  Okay.  X.  Now it gives me
         a menu and X is the command to exit the Biocom, so I say X,
         press any other key to return to Night.  Okay.  Now, this is a
         Night --
         Q.   Okay.
         A.   We're back in Night stuff.  I press any key.  I'm back to
         the screen that lists all of the zip, the contained files in
         that zip file.
         Q.   I only see one file listed.  How do you get back to the
         menu that we were looking at?
         A.   Escape --
         Q.   Or the sub menu?
         A.   Do you want to come back on this one, or do you want to --
         Q.   No, no, no.  I'm done with that.
         A.   Okay.  We'll delete our files.
                   MR. KITCHEN:  You mean we're not going to all check
         our biorhythms today?
                   THE COURT:  Costs money.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, can you -- we're back --
         A.   We're back to the category listing screen.
         Q.   We're back to the category of home and personal?
         A.   Yes, sir.
         Q.   Which was something like number 29?
         A.   26, I think, yeah.
         Q.   How do we get, let's get back to the main menu.  How do we
         do that?
         A.   Escape.  Okay.  Pause.  Okay.  There's our main menu.
         Q.   Now we're back to the main menu.  So we went from the main
         menu to a sub menu, number 26?
         A.   Yes.
         Q.   We looked at those?
         A.   Yes.
         Q.   We were able to pick one?
         A.   Yes.
         Q.   And execute the program?
         A.   Yes.
         Q.   Of course, we didn't want to do anything with the program,
         other than just to see what it looked like, and so on.  Then we
         exited out.  That was all done pretty fast and quickly, wasn't
         it?
         A.   That wasn't too painful.  That was pretty good.
         Q.   Assuming that on the one hand you're knowledgeable about
         computers?
         A.   Yes.
         Q.   But you've never run this particular program before?
         A.   Yes.
         Q.   And you only had --
         A.   Well, it was reasonable, sure.
         Q.   You only had one or two glitches.
         A.   It was fine.
         Q.   In fact, some of the glitches were --
         A.   You know, this is about average, yeah.
         Q.   I'm sorry.  Some of the glitches were caused by the fact
         that you were, you were -- you expect to do things a  certain
         way, based on your advanced knowledge of computer, and
         sometimes the program wasn't quite doing it the way you're used
         to doing it.
         A.   Yeah.  It wasn't prompting me to say, well, there's an,
         you know, do an enter.  It wasn't on the screen, so --
         Q.   Now, do you consider this to be the type of program that
         could have been written by a novice?
         A.   With guidance, sure.  To come up with it on your own, I
         doubt it.  I would say no.  You know, like writing and
         designing are, okay, yeah.  Write it, if you've got guidance,
         great, yeah, you can, you can write it if you've got guidance,
         sure.
         Q.   Okay.
                   MR. OSTROWSKI:  May I just have a moment?  I need one
         more second before we go on.
              (Discussion off the record.)
                   MR. OSTROWSKI:  On the record.  Hopefully --
                   THE WITNESS:  Wait a minute.  We got into games.  Did
         we switch to games?  Yeah, we must have.
         BY MR. OSTROWSKI:
         Q.   Well, it doesn't matter where we are in the program.  We
         went through some functions before, comparing various versions?
         A.   Yes.
         Q.   As far as the dir, int dir function, did you come across
         that, or was that, were those, were the source codes of int dir
         used in anything you just did, to your knowledge?
         A.   Yeah.  Dir pulled up -- no, dir pulls up this, yes, so
         we're using dir right now.
         Q.   Okay.
         A.   Or its supporting routine.
         Q.   And you used int help, didn't you, at some point?
         A.   Yes, pulled up help.
         Q.   And int main I take it has a lot of different functions?
         A.   Int main is, everything supports int main.  If you don't
         do main, you don't run the program.
         Q.   Okay.  And execute, int execute, did you use that?
         A.   Okay.  Execute 2 I think was for basic stuff.  So I don't
         know.  I think I did but I don't know.
         Q.   Let me ask you this.  It will be an easier thing to do.
         Why don't you go back to ground zero and get the opening
         screen?
         A.   Back out of this?
         Q.   Yeah.  Go back to the opening screen of once you've
         executed Night.
         A.   Okay.
         Q.   To pick 26, like we did.  Why don't we do that.  Pick 26.
         A.   I typed in 26, enter.
         Q.   What part of the source codes or subroutines are used when
         you do that?  Just, if you know.
         A.   Okay.  We're using, we're using dir right now, just to get
         where we are right now.  Right now I think we're in dir.
         Q.   Okay.  That particular subroutine?
         A.   Yes.
         Q.   Okay.  And to get, to get to that program we had to unzip
         it, I think?
         A.   No.  This is right off the main menu.  Zip -- I'm sorry.
         Zipping follows.
         Q.   Okay.  If we want to use that -- well, we didn't want to
         use that home accounting.  Which one did we use, the
         biorhythms, Denis' choice?
         A.   Yes.
         Q.   How do we -- we have to unzip that if we want to use it,
         right?
         A.   Yes.
         Q.   And how do we -- what command is that?
         A.   Okay.  That is the enter command, starts us down that
         pathway, and from there the option, extract, becomes available.
         Q.   When you hit that enter --
                   THE COURT:  Let me ask you, is there a purpose for
         this repetitiveness, Mr. Ostrowski?
                   MR. OSTROWSKI:  I'm just trying to identify the
         source codes, Your Honor, that he's, that are utilized in each
         step.
                   THE COURT:  Well, we went through it once.
                   MR. OSTROWSKI:  But I did not ask him the, about the
         source codes, which --
                   THE COURT:  Apology accepted.
                   MR. OSTROWSKI:  I'm sorry, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Which source codes or subroutines are you utilizing at
         that point?
         A.   Okay.  Oh, yeah.  This, I think, is -- yeah, this is
         execute.  Okay.  This screen right here, execute froze this
         screen up, so yeah, so we're in execute right now and it's
         looping, waiting for me to say something.
         Q.   Okay.  And then --
                   THE COURT:  You're pointing really to an interior
         screen that's shown on the monitor.
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   To unzip it, what do you do at this point?
         A.   X, extract.
         Q.   Okay.
         A.   Okay.  There's X.
         Q.   And when you hit extract, what subroutine are you using?
         A.   I don't know.  I'm maybe making a call to, where was that,
         where was execute?  Well, that was towards the back.
         Eventually it's going to go to a DOS call.
         Q.   I can show you where execute was.
         A.   No, I'm looking on 18.  Oh, no.  Wait.  We're not in
         execute, we're not in dir.  I was referring to those routines
         that are a part of Plaintiff 18.  We are in Plaintiff's 7, and
         I don't think I have code for that at all.  I could take the
         nearest appropriate one out of this one.
                   MR. KITCHEN:  Yes.  004-1, I believe is the, is the,
         corresponds to Plaintiff's 18, doesn't it?
                   MR. OSTROWSKI:  Well, that will be a judgment for the
         Judge.
                   MR. KITCHEN:  Well --
                   THE WITNESS:  Okay.  This is Plaintiff, this is 18,
         like 21 and 35 are similar, this is 18?
         BY MR. OSTROWSKI:
         Q.   All I'm asking you is, I'm asking you without referring,
         do you know, would you know from your review of various
         documents what source codes correspond to that command?
         A.   No.
         Q.   Okay.  And --
         A.   Yeah.  I made a mistake earlier.  I was thinking it was 18
         and --
         Q.   Okay.  Were you -- we're unzipping --
                   MR. KITCHEN:  Now, excuse me.  Let me raise an
         objection of sorts here.  I'm not trying to testify when I add
         this, but good grief, I mean, this is complex enough.  I
         thought we had established that the, that the thing that we
         just spent the last half hour looking at corresponded to
         something that we've already been talking about.  And if it
         doesn't correspond to anything, why are we talking about it?
         I --
                   MR. OSTROWSKI:  But I mean, that's up to the
         testimony of other witnesses and --
                   MR. KITCHEN:  Well, please, can't we stipulate as to
         which, whether Plaintiff's 18 does or doesn't match the disk?
                   MR. OSTROWSKI:  I believe this is Larry James' C
         version, but I'm not a witness.  That's why I have it up there.
                   MR. KITCHEN:  Well, I know, but even this, this
         particular witness can't, can't really testify to that.  Didn't
         we already have some input as to what this is?  I'm just trying
         to make this thing a little sensible, not, not leave, I don't
         want to leave the Court with more puzzles than there need to
         be, you know.
                   MR. OSTROWSKI:  Well, again, I don't think this
         witness can lay the foundation as to which program is which.
         That's why I'm not asking him.
                   MR. KITCHEN:  Well --
                   MR. OSTROWSKI:  That's why I'm asking him what he
         knows.
         BY MR. OSTROWSKI:
         Q.   The next command -- and is it unzipping, or is it done?
         A.   Okay.  We're part way through.  It's --
         Q.   It's working?
         A.   Yeah.  Let me -- okay.  We're going to unzip it.  Okay.
         And we're back to the same place, in the, what we call the work
         area, and we are now viewing a listing of the files that were
         contained in the biorhythm zip, or in this case, files.
         Q.   Okay.  So we can, we're not, now in a position to execute
         this program, pretty much, Biocom?
         A.   Yes.
         Q.   Okay.  And what do we do, hit enter?
         A.   Okay.  We hit enter.  That calls up a little window that
         confirms your choice, execute Biocom.  Yes, no, cancel.
         Q.   And what source codes or subroutines are we using, if you
         know?
         A.   I don't know.  I'm not sure, you know.
         Q.   Okay.  And then, why don't we go to the exit screen.
         A.   Okay.  When you say exit, you mean you're ready to get out
         of the program?
         Q.   Yeah.
         A.   Okay.  We're backing out.
         Q.   We're in the sub menu?
         A.   Okay.  We're in a sub menu, just passed through.  Now
         we're to the main menu.
         Q.   Getting out.  And when you're done using the, the whole CD
         ROM and you want to go to bed, what do you do?
         A.   Okay.  Q, quit, is in the command line, so we press Q, and
         return, type Y, okay, confirm our choice.  Type Y to confirm,
         so I press Y.  Copyright screen, drop to DOS.
         Q.   Okay.  And what does the copyright screen say?
         A.   Copyrighted 1991 by Night Owl CD ROM Publisher, all rights
         reserved.  Normal exit.
         Q.   Okay.
                   MR. OSTROWSKI:  Your Honor, my client wants a
         conference with me.  Could we --
                   THE COURT:  Well, I was going to say, speedy exit.
         We'll take a recess.
              (Recess taken.)
                   MR. OSTROWSKI:  Your Honor, I'm going to ask the
         witness about two more CD ROM's.
                   THE COURT:  Pardon me?
                   MR. OSTROWSKI:  I'm going to ask the witness to
         demonstrate two more CD ROM's and then I should be through with
         this witness.
         BY MR. OSTROWSKI:
         Q.   I'm going to show you Plaintiff's Exhibit 26, and can you
         identify this?
         A.   This is Plaintiff's Exhibit 26.  This is the Night Owl's
         NOPV-7.
         Q.   NOPV-7?
         A.   Yes.
         Q.   Okay.  Do you have any knowledge yourself about what file
         retrieval program would be on there?
         A.   Yeah.  I understand this is, this is the latest, so this
         is code that I've written.
         Q.   Okay.  Is it possible that that's -- well, do you have
         personal knowledge of which program is on there?
         A.   Yeah.  This is, this is 20, Plaintiff's Exhibit 21.
         Q.   We said NOPV-7, didn't we?
         A.   Yes.
                   MR. OSTROWSKI:  Okay.  Your Honor, it's my
         understanding we had some discussion, I don't know if we're
         going to enter into a formal stipulation, but it's my
         understanding that this particular CD --
                   THE COURT:  The way to probe that is to talk off the
         record with Mr. Kitchen and see if you can.
                   MR. OSTROWSKI:  So I would simply ask the witness --
                   THE COURT:  It takes two to tango, so we'll go ahead.
         BY MR. OSTROWSKI:
         Q.   You put the, it's a CD ROM, isn't it, Plaintiff's 26?
         A.   Yes.
         Q.   And you put it in the hard drive, and you're at DOS, ready
         to do some work?
         A.   Yes.
         Q.   And you type in Night to execute?
         A.   Yes.
         Q.   And then you execute?
         A.   Yes.
         Q.   And we're waiting for the program to work?
         A.   Okay.  We need to install.
         Q.   Is this a technical -- what do we see here, cannot open
         Night file, change file?
         A.   Okay.  It hasn't been installed yet.
                   THE COURT:  That's not a change file, it's a cfg
         file.
                   THE WITNESS:  It's a config.
                   MR. OSTROWSKI:  Oh, I'm sorry.  My mistake.  I
         thought that meant change.  I guess I can't even read because
         it says F.
                   THE WITNESS:  Well, it's hard to read from over --
         BY MR. OSTROWSKI:
         Q.   Is this a glitch that has something to do with this case?
         A.   No.  This is not a glitch.
         Q.   Okay.
         A.   This is -- you need to, you know, do you want to install
         this.  This is normal.  Okay.  I'm going to install it.  Hit
         color.  Okay.  We have a color screen.  And we're going to put
         our default.  Okay.  We use it in C Night.  It's a default
         answer.  CD ROM drive is Z.  Okay.  I don't know if we have a
         pic -- a gif --
                   MR. OSTROWSKI:  We should probably go off the record
         till we get ready.
              (Off the record.)
                   MR. OSTROWSKI:  On the record.  We had a technical
         glitch but you fixed that and you hit enter and it brought up
         the main menu.
                   THE WITNESS:  This is, okay, this is an installation
         that, it wasn't an error.  It was a, yeah, a roundabout, slowed
         us down a little bit, but we're now at the main screen.
         BY MR. OSTROWSKI:
         Q.   Okay.  Could you just in general terms describe the main
         screen?
         A.   Okay.  We've got a list of categories.  We don't have the
         numbers on this one.  A list of categories of types of programs
         that we can select from.  We've got our, the Night Owl CD ROM
         file access to all the program name, version number 1.  At the
         bottom we have a list of some available commands.
         Q.   Okay.  Any copyright notice on the opening screen?
         A.   No.
         Q.   Okay.  Now, is there any sub-category -- well, is there
         any category which sounds like home and personal?
         A.   Home computing.
         Q.   I see personal systems, aps.
         A.   Personal system, aps.  Okay.
         Q.   Why don't we just try that, and I guess what I want to
         know is, how do you bring that category up to look at?
         A.   Okay.  I move the highlight bar over the desired function
         and then I press enter.
         Q.   Is that what you did on --
         A.   No, that's different.  We selected by number on the other
         one.
         Q.   Okay.
         A.   Okay.  And this brings us into a list of file
         descriptions, or file names and file descriptions.
         Q.   Under that category, personal systems, what does apps
         stand for?
         A.   Applications.
         Q.   Okay.  Now, in using the space bar and then enter,
         compared to picking a number, and then I take it we entered, we
         used enter on the previous program.  That was Plaintiff's 7.
         A.   Yes.
         Q.   Is there any particular time -- was there a difference in
         the amount of time it took between the two, to do it one way or
         the other?
         A.   Not noticeable to the user, no.
         Q.   Okay.  Now, I take it we're at a menu of programs that
         have to do with personal systems?
         A.   Yes.
         Q.   And perhaps you could scroll down and find one that we
         wouldn't have a glitch on if we pulled it up and wouldn't be
         very complicated.
         A.   Okay.  4 last 2 zip.
         Q.   Okay.  Well, we could -- would there be no glitches on
         that if we tried to --
         A.   Well, let's try it and find out.
         Q.   We'll do that.  Okay.  Let's work with that.  Now we have
         it on the screen.  I see --
         A.   It's highlighted.  I highlighted that file.
         Q.   Is that, is that pretty much what we did on the last
         program, Plaintiff's 7, we used a highlight bar?
         A.   Yeah.  We went with highlighted.
         Q.   Okay.  And what do we do, do we have to unzip a program?
         A.   Yes.
         Q.   I'm beginning to understand that.
         A.   Yes.
         Q.   How do we -- and that's the first thing.  How do we unzip?
         A.   Okay.  We select this file for action with enter.  Okay.
         It pops us up to --
         Q.   Try to slow down a little bit, at least for me, so I can
         follow.
         A.   I'm sorry.
         Q.   That's okay.
         A.   Okay.  We, let's back it up then.  We're in the category
         listing of files and their descriptions.  We've highlighted a
         specific file and we're specifically, you know, even on the
         title line, if you come down to a, that has a description line
         only, that's not going to do it.  You have to highlight the
         name.  Okay.  So we highlight 4 last 2 dot zip.
         Q.   Can I just ask you, there seems to be a bit more
         description of specific programs?
         A.   Yeah.  There are more description lines.
                   THE COURT:  Under that one title?
                   MR. OSTROWSKI:  Under each title.
                   THE WITNESS:  I would guess under -- I'm sorry.
                   THE COURT:  No.  I was just going to say, it's a five
         line description of what is on that last 2 zip, the line that
         you have highlighted, instead of just for laughs, number 2
         collection of programs, which looked like a computer virus is
         at work designed to elicit laughs and maybe some nervous
         moments (harmless).  That's a whole description of that item,
         isn't it?
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   Now, that description, we had some discussion about this,
         but that's strictly speaking not an executable program, that's
         simply like a word processing file that somebody wrote
         information in, isn't it?
         A.   Okay.  The 4 last 2.zip is --
         Q.   Well --
         A.   Okay.  This is, this is not an executable, that's correct.
         Q.   What we, okay, what we seem to have here is just a longer
         sentence, a very long sentence which describes each item,
         instead of a very short term or --
         A.   Yeah.  More verbose.
         Q.   Okay.  That's not a computer program per se, is it, an
         executable computer program?  It's a --
         A.   Well, this --
         Q.   Would you call that documentation, or is that incorrect?
         A.   Well, this is, well, I guess you call this documentation
         for the, for the user.
         Q.   Now, is this done by the file retrieval system or some
         other program or --
         A.   This specific text is contained in a specific directory in
         a specific file.  The navigation of this file and the
         highlighting is managed by the routine.
         Q.   But this extra information that we see here, generally
         speaking, and generally speaking not in the Plaintiff's 7 sub
         menu, is not done by the file retrieval program?
         A.   That's correct.
         Q.   Okay.  Now, we've gotten to a particular program just for
         laughs, and I think we wanted to unzip that?
         A.   Yes.
         Q.   And how did we go about doing that?
         A.   Okay.  Now, we've got a -- okay, enter, on the bottom
         selects it for action.  We enter.  Okay.  It tells us, you
         know, where we're at.  We don't have anything tagged.  Okay.
         And you see it also changes our command bar on the bottom.  A
         new array of commands now become available to work with this
         specific file.
         Q.   Okay.  And at this point, what differences do we perceive
         as opposed to Plaintiff's 7 at this stage?
         A.   We have more options here.  On the, on Plaintiff's 7,
         there was never any mention of an enter command to fire it up,
         in the command bar here.  We just, we have more options, more
         things we can do.  Our screen looks a little different.
         Q.   I think we -- I'm sorry.  As far as the enter, I think we
         agreed that on DOS that's the execute command?
         A.   Enter is not, okay, enter is not an execute command on
         DOS.  Enter allows, seals off that string.  It says, okay, I'm
         done writing this command.  Now, whatever is written before,
         that's the command you want to execute.
         Q.   Okay.  But when you're looking for an execute, when you're
         looking for a, something on the keyboard to hit, to start the
         program, and you don't, and it's not on the screen, you
         generally hit enter, correct?
         A.   Uh-huh.  You type something and you press --
                   THE COURT:  Uh-huh, you mean yes?
                   THE WITNESS:  Yes.  You type something and then you
         press enter.  I'm sorry, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  Other than the -- okay.  You said, where's the
         enter command, was that on the --
         A.   That's back up here, for back-up, right there.
         Q.   Okay.  Okay.  And then, what are the differences, I think
         you can go to the next screen now.  How do we do that?
         A.   We're going to enter, and this is our file manipulation --
         okay, now we're in file, display file manipulation window.
         Q.   Okay.
         A.   This is the routine that just threw this up here.
         Q.   What can you do at this point that you couldn't do on the
         previous, Plaintiff's 7?
         A.   Okay.  We can copy, we can copy files.  This tag file, or,
         which we don't have now, or highlit files.  We can go right to
         our unzip area without sending anything there first.  I don't
         think we could, I don't think we could shell to DOS on the
         other one.  I'm not sure.  Maybe you could.  No, no.  I think
         you could shell on that one.
         Q.   Okay.  Copy, you can copy.  Could you explain that?
         A.   We can copy files.  When people are looking through this,
         and they find a file that's, after all their examinations, yes,
         this one's valuable, I'd like it, now they want a copy.  That's
         what this is all about.
         Q.   Okay.  You could not copy that way on Plaintiff's 7?
         A.   I don't think so.  I didn't see that.  I don't --
         Q.   I take it there would be some way to do it if you worked
         hard enough with DOS and so on.
         A.   You could drop out, you could drop out to DOS and do it.
         You just, you know --
         Q.   Okay.  This one does it directly and the other one --
         A.   Just a little --
         Q.   -- indirect?
         A.   A little friendlier, yeah.
         Q.   Okay.  Continue on, I guess.  What do we do to unzip at
         this point?
         A.   Okay.  Extract X, becomes X, we don't need a return here.
         Q.   Now, that extract is the same command that appears on
         Plaintiff's 7?
         A.   Yes.
         Q.   Okay.
         A.   Yeah.  It looks the same on the screen.
                   MR. OSTROWSKI:  Your Honor, I had to be -- the
         plaintiff is audibly talking about how to operate the program,
         and I would object to that at this point.  But --
                   THE COURT:  I don't think he's getting on the record.
         I don't know to whom he's talking.
                   MR. OSTROWSKI:  Well, I'm just saying that he, he may
         be assisting the witness, and that's an assistance that I'd
         prefer not.  I know he wasn't, it wasn't intentional.  He was
         talking to his attorney, but I think that's over now.
         BY MR. OSTROWSKI:
         Q.   Okay.  We're trying to unzip.  What is happening?  Do we
         have a problem?
         A.   It looks like we had, it looks like something with
         PK.UNZIP didn't go.  There are no files, okay, no files in the
         unzip directory.
         Q.   Now, what, what does that mean?
         A.   We wanted -- okay, it didn't find what it was looking for.
         Q.   Okay.  And why --
         A.   Let's recap.
                   THE COURT:  Well, I noticed on your program or
         instruction bar at the bottom it had something for unzip, but
         you hit a different one.
                   THE WITNESS:  Okay.  We've got extract, extract the
         zip file.
                   THE COURT:  But over on the right there's a unzip.
                   THE WITNESS:  Go to unzip.  Yeah.  This is where the
         zip files end up.  Go to -- okay, well, we'll go to unzip
         there, and -- yeah, there's no files in there.  Okay.  Let's,
         we're going to enter, select, extract.  We're having problems
         with PK.ZIP.  I'd like to get a look at that line.  I'm going
         to tag one.  Let's do it this way.  Okay.  Now we've tagged a
         file.
                   MR. OSTROWSKI:  Okay.
                   THE COURT:  Tag means you put up that other color
         bar, wider bar.
                   THE WITNESS:  We've marked it for future action.  In
         this case we're going to do our action right away.
         BY MR. OSTROWSKI:
         Q.   Well, hold on.  Let me ask you a question here.  Can you,
         you can tag on Plaintiff's 7, is that correct?
         A.   Yes.
         Q.   You showed us that?
         A.   Yes.
         Q.   Okay.  Go ahead.
         A.   Okay.  Extract, unzip, tag.  Okay.  We want to do --
         doesn't matter, they're both the same one.  Let's say tag, with
         confirms.  Make sure we're safe.  We say yes.  What is the
         deal?
         Q.   Let me just ask --
                   THE COURT:  That was a semi-expletive by the witness.
         BY MR. OSTROWSKI:
         Q.   Well, can you explain what the problem is, just for the
         record, because it's not getting on the record.  You're having
         trouble unzipping?
         A.   Yeah.  This is not finding its -- oh, we didn't install.
         Did I say -- I wonder if I said it right in the installation,
         because we didn't move files onto the -- let me check my
         install.  Okay.  Yeah.  We had a little --
         Q.   Why don't we go off the record, I guess.
              (Discussion off the record.)
                   MR. OSTROWSKI:  Okay.  We're back on the record.  We
         had a technical glitch apparently that had nothing to do with
         the case.
         BY MR. OSTROWSKI:
         Q.   My question is, how do you -- we're at the point where one
         would unzip a file as the next step?
         A.   Yes.
         Q.   And how do you do that at this point?
         A.   Extract, X, just punch X.  Okay.  And it's unzipping.
         Q.   Okay.  And how did you do it on Plaintiff's 7?
         A.   I said X -- did we need a -- I don't -- did we need a
         return on that?  I don't think we needed to do a --
         Q.   Just from your own recollection.  If you can't remember --
         A.   I think I said extract return.
         Q.   Okay.  And was it about the same speed, the function,
         accomplishing that?
         A.   Yes.
         Q.   Okay.  And now, where are we now?  Did it unzip?
         A.   Yes.  We're now viewing a listing of files that were
         contained in 4 last 2.zip.
         Q.   Okay.  So I guess we're in the second level of
         subcategories or something?
         A.   Yes.
         Q.   And this is a bunch of, this is a bunch of individual
         funny programs, I take it?
         A.   Yes.
         Q.   And can you locate one that looks particularly funny?
         A.   Well, I think --
         Q.   How about funny words?
                   THE COURT:  I don't see anything about Judge there.
                   THE WITNESS:  Okay.  Funny DOS.XE.
         BY MR. OSTROWSKI:
         Q.   Okay.  Now, what do we to, we want to run this program
         now, right?
         A.   Yes.
         Q.   How do we run the program?
         A.   Okay.  Our command bar says enter to execute.  Okay.
         Yeah.  It confirms.
         Q.   Did you press the, you hit enter to execute?
         A.   I pressed enter.  I pressed enter.
         Q.   Okay.
         A.   We came back with a small window, execute funny.DOS and --
         Q.   Is that pretty much what you did on Plaintiff's 7?
         A.   It had a yes, no, cancel.  You know, they're pretty
         standard so I just left them off.
         Q.   Not much difference there to the user?
         A.   No.  They're -- no, you're going to assume that they know
         enough to know yes or no, and hit Y or N.
         Q.   Eventually they learn what those minor options are and --
         A.   Oh, yeah.  These are, this is common to all kinds of
         programs.
         Q.   Okay.  And I guess to hit, to execute we just hit enter?
         A.   We answer the question, do you want to execute.  We're
         confirming.  We say Y, for yes.
         Q.   Y, for yes.  And now it's running the program?
         A.   Okay.  And this is our funny.DOS thing.  Let's, okay, it
         wants us for a date.
         Q.   You can just hit enter?
         A.   We'll give it a date and see what it does, 9/9/93.
         Current time, it's 15:43.  Okay.  And we're supposedly -- okay.
         So we, we give it regular DOS commands and --
         Q.   Once we, once you hit, ran the program it seemed like we
         were back at DOS?
         A.   That's what it's supposed to do.
         Q.   But how do we run the program that's in that, how do we
         run this funny music program?
         A.   We're running it right now.
         Q.   Oh.  Copy wrong.  That's funny.  Okay.  I take it there's
         a copy wrong IBM Corp. notice there that seems like part of the
         program is a joke.
         A.   We are now running funny.DOS XE.
         Q.   But let me ask you this, once we get to that current date
         is Tuesday, 1/1, 1980, we're sort of out of the file retrieval
         system.
                   THE COURT:  Actually it was 1/1, 1980.
                   MR. OSTROWSKI:  Well, you know I'm blind, Your Honor,
         from a few feet away.
                   THE WITNESS:  We're sort of out of it.
         BY MR. OSTROWSKI:
         Q.   We're out of it.  You're now running the program that
         somebody else wrote.
         A.   Yes.
         Q.   It has nothing to do with Night Owl --
         A.   Our local area is outside the, the ROM.
         Q.   Okay.  And why is this taking so long to produce  some
         funny music?
         A.   No.  This, this isn't going to produce --
         Q.   Oh.
         A.   This is just going to make it look like you have a screwed
         up copy of DOS, and boy, it sure looks that way.
         Q.   Oh, well, that's it?
         A.   Yes.
         Q.   Okay.  Let's pretend that --
                   MR. KITCHEN:  Hit it a couple more times.
                   THE WITNESS:  Let's see if we get bad command or file
         name.  Yeah.  It's giving us garbage stuff that changes our
         drives.
         BY MR. OSTROWSKI:
         Q.   Oh, I see.  This is just something to amuse computer
         people?
         A.   Yes.
         Q.   Everything goes wrong?
         A.   This will cause them to panic if they don't know.
         Q.   It will probably say, hard drive formatted, destroy all
         your data, and so on?
         A.   Yes.
         Q.   Different --
         A.   Different drive every time.
         Q.   Normally if you hit enter it's the same drive, right?
         A.   Now let's see if we can -- do you want to get out of this?
         I want to see how you get out of this.
         Q.   This is funny.  We may, okay, let's assume we amused
         ourselves and we want to get out of this thing.
         A.   I'm going to try control break.  Okay.  Control break.
         See, now we've got to get out of this shell.  I'm going to go
         to control alt delete.  I'm going to reboot.  I'm going to warm
         boot the system.  I'm going to warm boot the system.
         Q.   I think it's that the program makes it hard to exit as
         part of the joke?
         A.   Yes.
         Q.   Okay.  Let's see if we could figure out how to exit.
         A.   Maybe I can escape.  No, it's not going to help.  I'm
         going to warm boot this thing.  I'm going to restart the
         computer.
         Q.   Can we reset the computer so that we just --
         A.   Control alt delete.
         Q.   -- kill off everything and start over?
         A.   Okay.  Yeah.
         Q.   But, oh, I'm sorry.  Then we don't get the exit screen?
         A.   No.
         Q.   Is there any way to skip ahead to the exit screen real
         fast?
         A.   Sure.
         Q.   It's not even important.  Why don't we go to the next
         disk.
                   THE COURT:  Now, before we leave this, one of these
         screens showed the Night retrieval, Inc. or whatever the name
         is, and then had your address, Mr. Swanson.  What's the import
         of that?
                   THE WITNESS:  My, you mean PCS Center?  I'm sorry.
                   THE COURT:  It had the Night, Night Owl, Inc., and
         then had 1620 Falconer-Stillwater Road, Jamestown.
                   THE WITNESS:  Well, that's, we made the program.
         That tells them, you know, these are the guys that made it,
         this is how you get in contact.
                   THE COURT:  But is Night Owl at that address?
                   THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q.   Would it be possible to bring -- is that the opening
         screen?  Would it be possible to bring that up without too much
         trouble?
         A.   Okay.  You want to see the opening screen again?
         Q.   Where the Night Owl, Inc. notice was?
         A.   Sure.  I think that's a closing -- well, okay.  Let me
         make sure.
         Q.   Do we have that glitch again?
         A.   Yeah.  It wants me to install again.  We'll zip through
         the install here.  Okay.  We're back at the opening screen.
         Q.   Can you get to that screen?
         A.   Okay.  The closing screen, copyright Notice?
         Q.   Whatever had Night Owl and your address.  Oh, I take it,
         this is the closing screen.  Could you --
         A.   This is the closing screen.
         Q.   Could you read that for the record?
                   THE COURT:  Night Owl's Publisher, Inc.,  1611
         Falconer-Stillwater Road, Jamestown, New York 14701, and then
         six digits under it.
                   THE WITNESS:  We also got the copyright '92.
         BY MR. OSTROWSKI:
         Q.   Okay.  Could you take that CD ROM out, and put it back in
         the container, and I'll hand you another one?
         A.   Certainly.
         Q.   Showing you Plaintiff's Exhibit 36, could you identify
         that?
         A.   This is Night Owl's disk, NOPV-9.
         Q.   Okay.  Could you take that out and put that in the hard
         drive, please?  Or is that, it's not a hard drive, it's a CD
         ROM drive?
         A.   It's a ROM drive actually.  Well, I would certainly love
         to.
         Q.   I'm not the only one who can't open these.  Okay.  And
         we're going to execute it by pressing Night?
         A.   Yes.
         Q.   And enter?
         A.   Night, enter.  I hope this doesn't screw up.  Okay.  We
         have an option on this.  This is a little different.  We have
         an option on this one.  We can install it or we can just run it
         right away, you know, do a quick look, or --
         Q.   Okay.  Does this option have anything to do with the file
         retrieval?
         A.   Yes.
         Q.   Or does it have to do with --
         A.   Yeah.  We're in the file retrieval right now.
         Q.   Okay.  We're in the file retrieval, so the first thing we
         see is what?
         A.   Installation choices, types of installation you want to
         do.
         Q.   Okay.  How does this differ from the previous two, which
         showed a menu screen immediately?
         A.   Okay.  The other two, they showed, they wanted you to
         request an -- excuse me.  The other two had you install it, and
         they had one type of installation.  We have, well, really,
         three different variations of installation we can do.
         Q.   And what's the point of these options, as opposed to one?
         A.   A lot, okay, if a developer, a guy, a customer, a dealer
         for these disks, he gets and he looks at a lot of these disks
         in a day.  He doesn't want to spend time going through an
         installation procedure.  Just get me up quick and let me look
         around.  That's what we're doing here with run Night Owl from
         the CD ROM, you know, and this one also, choose a new CD ROM.
         That's, that get you in quick.
         Q.   Oh, I see.  And then the other one, the other one, you had
         to install in on your hard drive?
         A.   Yes.
         Q.   Okay.  So why don't we install it the fastest way we can,
         which is what?
         A.   Okay.  Choose, choose a new CD ROM and run from that
         drive.  And that's Z, okay.  What is your CD ROM, Z?  Don't do
         this.  Okay.  We're going to escape. Oh, it's not letting me
         by.  Okay.  We're not finding some of our compression files
         here.  I'm going to do an installation which apparently now is
         quickest.
         Q.   Well, what -- you had a couple of glitches there?
         A.   Yes.
         Q.   Were those important, or they had to do with the program?
         A.   This had to do with the program.  Okay.  It's not echoing.
         I, we've probably got black on black here so you can't read it.
         Q.   What does that mean though, because, you know what that
         means, but --
         A.   On the display, when you go to type in a character you've
         got a foreground and a background color.  I'm assuming that
         it's receiving the character, but it's a black foreground and
         a black background, not very readable.
         Q.   Okay.  But is this a glitch of the file retrieval program?
         A.   Yes.
         Q.   Okay.  So how do we fix that?
         A.   I'm going to do, I'm going to do an install.  I'm going to
         escape out of this, then loop back for an install.  We'll do
         the full installation.  This is not going to be, this is not
         going to take a long time.  Okay.
         Q.   Well, could you just, as fast as, you can do it fast, I
         know, but could you just describe what you're doing in order to
         solve the problem?
         A.   I have, okay, I regained the installation choices screen.
         I'm selecting full installation.  I -- okay, I'm answering a
         series of questions.  Do you have a color monitor.  Y, yes.
         Location of default Night directory, C/Night.  Okay.  Our ROM
         drive is Z.  Don't do this.  It wants E on a ROM drive.  This
         is going to give us problems.  Yes.  Okay.  We'll try and
         accept this.  I can change this.
         Q.   Okay.
         A.   I can fix this, but I got to get out.
         Q.   Okay.  Just describe, just do whatever you have to do, do
         it as fast as possible, but tell us what you're doing for the
         record.
         A.   Okay.  Okay.  I'm not going to -- I'm completing the
         installation here and then I'm going to loop around.   Okay.
         It's telling us it doesn't find some of the needed unzipping.
         Yeah.  Okay.  We lost PK.UNZIP again.
         Q.   How did we do that?
         A.   I don't know.  We yanked out the one version of PK.UNZIP.
         Unless we changed, if we changed has, or if the PK.UNZIP --
         see, we're not on the CD ROM, and I'm guessing, I would assume
         then that PK.UNZIP is not in the path on the hard drive.  So it
         can't find it because we're not in the right -- doesn't know
         what CD ROM to look at, and it doesn't find it on the hard
         drive.
         Q.   I take it this option to get the program up and running
         faster is taking longer?
         A.   That's correct.
         Q.   Okay.  And now, why don't we go back and try another
         option perhaps, copy it into the hard drive?
         A.   No.
         Q.   Okay.  What do you suggest?
         A.   Okay.  I'm working it here.  It's notifying us of
         decompression software that it does not find, that it would
         like to find.  Okay.  So I'm going to drop back to DOS.  I'm
         going to -- I'm going to get my own editor and I'm going to go
         in and I'm going to modify the configuration file so I can
         stuff the CD ROM drive I want in there.  And --
                   THE COURT:  By doing this are you making any changes
         on the CD ROM?
                   THE WITNESS:  No.  Can't change a ROM.  It's read
         only.
                   THE COURT:  I see.  That has to be cut by a
         publisher.
                   THE WITNESS:  Yes.  I'm changing the configuration
         file.  It was having problems recognizing the ROM in our
         configuration while, I'm going to force it a little harder.
         BY MR. OSTROWSKI:
         Q.   That's a defect in the file retrieval program, correct?
         A.   Yes.
         Q.   Okay.
         A.   Okay.  Let me, let me go off the record, and let me just
         grab a disk here.
              (Discussion off the record.)
                   MR. OSTROWSKI:  Back on the record.  Your Honor, I'd
         like the record to reflect that Mr. Swanson needed about three
         minutes of work to get the glitch which he's testified is part
         of the program corrected, and he also consulted with the
         plaintiff numerous times.
         BY MR. OSTROWSKI:
         Q.   Mr. Swanson, could you just briefly explain how you got it
         back up and running?
                   MR. KITCHEN:  I'll raise the objection to what
         counsel wants on the record.  What was run was a previous CD
         ROM disk which did something to the computer, and then he ran
         this one, and there was a problem.  And I --
                   MR. OSTROWSKI:  Well, that's not what he said.  He
         said --
                   THE COURT:  Can we have expert Swanson testify rather
         than expert Kitchen?
                   MR. KITCHEN:  Well, okay.  Just as long as -- I don't
         mind, I don't mind that, Your Honor.
                   THE WITNESS:  Yeah.  There was a problem in
         recognizing a CD ROM drive.
                   MR. OSTROWSKI:  Sorry.
                   THE WITNESS:  Now it's, okay, you have -- there are
         a couple of possibilities here as to what has caused that.  I
         was assuming, you know, just from -- that it was a problem in
         the program.  Maybe not.  It could -- yeah.  That was the next
         thing I checked.  Were we trying to use a config file from a
         prior version, and that was going to screw us up.  It looks
         like an error in the program, but I checked this stuff, man.
         It's, I just find it hard to believe that -- because it looked
         like an error, looked like an error.
         BY MR. OSTROWSKI:
         Q.   Okay.
         A.   And I'm not going to push, push beyond that.  I'd have to
         check.
         Q.   Okay.  Let me ask you this.  The error came as a result of
         a new feature that was not present on Plaintiff's 7, right at
         the beginning of the program?
         A.   That's, that's what I suspect.
         Q.   Okay.  And that program was designed to allow the initial
         installation to be faster and more convenient for the user?
         A.   Yes.
         Q.   Okay.
         A.   Yes.
         Q.   And that did not, that did not in fact work, at least in
         your case, did it?
         A.   Not this time.
         Q.   And this is in fact a program -- well, I don't think we --
         I think you stated that you were not certain which file
         retrieval system was on the CD ROM or -- to your own knowledge?
         A.   Okay.  PK.UNZIP is on the ROM's.  I think we had problems
         when we went back, when we were trying to recognize the wrong
         CD ROM, there was, it was looking in the wrong places.
         Q.   Okay.
         A.   The files we needed existed but it wasn't looking in the
         right places for them.
         Q.   Well, let me just ask you this.  You are extremely
         familiar with file retrieval programs, including programs quite
         similar to the one that's operating before you, is that
         correct?
                   THE COURT:  Is that a question?
         BY MR. OSTROWSKI:
         Q.   Is that correct?
         A.   Yes.  I'm certainly more, I'm more familiar with this,
         with this brand, with this series, than I am with any other.
         This is the one I know the best.
         Q.   Okay.  Now, we're at the main menu, the opening screen,
         more or less, after that initial CD ROM option screen?
         A.   Yes.
         Q.   For want of a better word.  And how do we, if we're
         interested in, I think we were trying to stick to personal or
         home stuff.
         A.   Okay.  We have the personal applications.
         Q.   Okay.  How did you get down there?
         A.   Okay.  I used arrow keys to move a highlighted bar to a
         menu choice.
         Q.   Okay.
         A.   Okay.  A menu of categories, a menu of, yeah, categories.
         Q.   And on the, Plaintiff's 7, you used a, you hit a number?
         A.   Yes.
         Q.   Then enter?
         A.   Yes.
         Q.   Or something like that.  Enter?
         A.   Yes.
         Q.   Okay.
         A.   Type in your number and enter.
         Q.   Now, what do we do to get the sub menu for personal
         applications up?
         A.   Okay.  We enter, select, so I press enter.
         Q.   Okay.
         A.   My ROM spins.
         Q.   Now, what do we have before us now?
         A.   Okay.  This is a category listing.  This is a listing of
         zipped files and a description of what's in them.
         Q.   Okay.  And I'm now getting used to this.  I take it we
         have to unzip a file to use it?
         A.   Yes.
         Q.   Why don't we scroll down and perhaps you could pick a file
         that wouldn't cause any particular problems unrelated to the
         case?
         A.   Yes.
         Q.   Like Lotus being needed.  Wipe out your credit card debt.
         A.   Okay.  Notice this one jumps, this one jumps file title to
         file title.  That way you can't get caught in between here
         trying to unzip.
         Q.   Okay.  On the --
                   THE COURT:  What would happen if you did get caught
         in between?
                   THE WITNESS:  It would just, it wouldn't do it.  It
         wouldn't, you wouldn't get any action off it.  It would do
         nothing, if you didn't catch the error yourself.
                   THE COURT:  If you were on the fourth line, for
         example, it wouldn't act as if it were on the first line.
                   THE WITNESS:  Right.  It's got to have this name on
         that line.
         BY MR. OSTROWSKI:
         Q.   Okay.  Is that, is that a feature that was not on
         Plaintiff's 7, the first --
         A.   That is correct.  That feature was not on 7.
         Q.   Okay.  But it was also not needed on 7, is that correct?
         A.   Well --
         Q.   Because there was no additional description of the file?
         A.   There were some lines that had additional description, and
         in those cases, yeah, it would have been nice to have it.
         Q.   Okay.  There were relatively few of those, I take it?
         A.   There weren't that many.
         Q.   Okay.  So we've, we're now ready to unzip because we have
         the highlight bar on the line with the number of the program
         that's --
         A.   Yes.
         Q.   -- I think the computer needs to know.  And what do we do
         to unzip?
         A.   Okay.  The command bar, enter to select a file for further
         action.  So we press enter.  Here's our file manipulation
         window, and a new set of commands that now become available.
         Q.   Okay.  What do we have on this screen as far as options
         that are not on Plaintiff's 7?
         A.   Okay.  Now, okay, we've got the copy.  Now, if we were on
         a picture file, we'd also have the option to view the picture
         file.  That doesn't, that doesn't show here because the program
         is smart enough to know this isn't a picture file.
         Q.   I'm sorry.  I'm not, I'm not following you.  Could you
         just explain that a little slower.
         A.   If our original file -- in this case we selected, dead M
         G13.
         Q.   Yeah.  So I can wipe out my credit card debt.
         A.   Yes.  If this had a file extension that is typically used
         with a picture file, then the program would recognize it as
         such and allow us the option to view that picture file.
         Q.   Okay.  And that --
                   THE COURT:  Such as mountain climbing, if there was
         one.
                   THE WITNESS:  Sure.  Yes.
         BY MR. OSTROWSKI:
         Q.   Is that a feature that's on Plaintiff's 36?  We're on 36,
         correct?
         A.   We're on 36.
         Q.   We're running -- okay.  Is that a feature that's on 36
         that is not on 7?
         A.   That's not on 7.
         Q.   You sure?
         A.   Yeah.
         Q.   Okay.
         A.   Okay.  There's all --
         Q.   Are you sure from running it?  Are you sure from just your
         general knowledge of -- well, how do you know it's not?
         A.   We could go back and take, take a look, because, you know,
         we're constantly improving and this is something that I put in.
         Q.   Well --
         A.   That wasn't there prior.  You know, so --
         Q.   -- I didn't know what was coming, so that's why I didn't
         ask you about it.
         A.   Okay.
         Q.   Okay.  So new pictures is, picture view, in my term, is a
         new option.  Anything else that you can do here that you
         couldn't do on Plaintiff's 7?
         A.   Yes.  If -- okay, if this were an executable file.  Again,
         the program is going to be smart enough to know that it's
         executable and it would allow us the option to run that file.
         Q.   Okay.  But how does that differ from what you could do on
         Plaintiff's 7?
         A.   It just, it just assumes that every file you're going to
         get is a zip, and you say you can -- it doesn't have, it
         doesn't have the additional abilities that you may require if
         you are using, if you are on an executable or a picture file.
         Q.   This, this program, in other words, has less options?
         A.   No, this has more.
         Q.   This has more?
         A.   Yes.
         Q.   Okay.  What are the more options, specifically?
         A.   Okay.  We've got ability to view pictures.
         Q.   Well, you've stated that.
         A.   Okay.  I'm -- okay, yeah.  Okay.  View and execute, we
         can, I know we can print a file here.  I don't know if we can
         do one on 7.  We can read a file.  We can format a disk with,
         we have a nice pretty menu on this one I think to format a
         disk.  What else?  Okay.  The go to work area, that's also not
         on 7.  Again, the copy, copy files, you can't do that from here
         on 7.  We have a lot more safeties and user friendliness added
         to the copy command and to the, when you're working with tagged
         files, if you're working with a group of files, we're
         friendlier there.  We --
         Q.   Can you --
         A.   I'll spare you the long explanation of it.
         Q.   Okay.  Were you done?
         A.   Okay.  Covered read, covered print.  We have the same type
         of thing --
         Q.   This is all from this screen?
         A.   No.  This is --
         Q.   I was just asking about this screen.
         A.   Oh, I'm sorry.  Okay.  Yeah.  Looks -- okay.  We've got
         the view.  Let's check help, too, to see if there's anything
         else in there.  Okay.  We can tag all the files.  We can untag
         all the files.  I think -- no, that was in, that was in 7,
         ability to global tag and untag.
         Q.   Yeah.
         A.   Okay.  Search, we had that.  Yeah.
         Q.   Okay.  Okay.  But at this point on the screen, the typical
         user wants to do what, unzip?
         A.   He's probably, most of the time they're going to want to
         unzip.
         Q.   Okay.  And how do you do that?
         A.   Okay.  We have extract, X.  That's X.  Yeah, see it's --
         Q.   You pressed X to unzip, and what did you press on
         Plaintiff's 7.
         A.   Okay.  I pressed X to unzip, but we're seeing the stuff
         that was in there from our last extraction.  Okay.  In
         Plaintiff's 7?
         Q.   On Plaintiff's 7, how did you unzip?
         A.   I think it was X enter.
         Q.   Okay.  And where are we now, are we unzipping, or do we
         get a further choice to --
         A.   Okay.  We had -- it didn't find PK.UNZIP.  Now, this is
         something with the system.  This is not a problem with, with
         the retrieval.  Something about our specific system set-up.
         Q.   Okay.
         A.   Okay.  We can effectively skip over that part because we
         still have the last file, funny.DOS.  See, we still -- we won't
         use that again, but --
         Q.   Are you saying that this is from another program?
         A.   This, okay, these are the files that we extracted with the
         last disk we've used.
         Q.   Plaintiff's 26?
         A.   Yes.
         Q.   Well, that seems to be a big glitch, and that's not
         related to the file retrieval system?
         A.   That's correct.  We couldn't find PK.UNZIP and it's, you
         know, with system set up --
                   MR. KITCHEN:  I'll object to counsel's
         characterization of, that must be a big glitch.
                   THE COURT:  It may stand.
                   MR. OSTROWSKI:  Okay.
         BY MR. OSTROWSKI:
         Q.   Should we go off the record, or can you fix it real fast?
         A.   There's nothing, there's nothing to fix.  We're --
         Q.   This -- I'm sorry.  Go ahead.
         A.   Okay.  It didn't find PK.UNZIP, so although we're not
         looking at the file we requested, we have a file, an unzip
         contents file up here, and we can view all the features and see
         all the stuff we wanted, just as if it had been the file we're
         looking --
         Q.   Is this, are these programs on -- I'm confused.  Are these
         programs on Plaintiff's 36?
         A.   No.
         Q.   Or are they on from --
         A.   These are from the last ones that were still in the
         directory.
         Q.   Okay.  Well --
         A.   We're just having a problem because the --
         Q.   -- how do we --
         A.   -- I'm assuming that the configuration file on this
         specific machine, configuration is different, and --
         Q.   Okay.  I think I follow you.
                   THE COURT:  What do you mean by, still in the
         directory?  Does that mean in the machine's memory?  In the
         computer, rather than on the disk?
                   THE WITNESS:  That is, these files are on the hard
         disk.  We deposited them there when we viewed the last disk and
         they're still here for us.
                   THE COURT:  But they're still there from the former
         disk.
                   THE WITNESS:  Right.  We didn't erase them.
         BY MR. OSTROWSKI:
         Q.   Is what you're saying that --
                   THE COURT:  Well, the erasure would occur in the
         modem of the machine, right, the computer?
                   THE WITNESS:  You have an -- when we execute this
         program we have an option, do you want to erase these files,
         and I just said no.  So that's, that's why they're still there.
         BY MR. OSTROWSKI:
         Q.   Oh, okay.  Is what you're saying that we're, we are
         operating the file retrieval system of Plaintiff's 36 on data
         from Plaintiff's 26?
         A.   That's correct.
         Q.   Okay.  And we're only --
         A.   It will be fine.
         Q.   We can fully demonstrate the features of Plaintiff's 36
         without any taint from the former data?
         A.   That's correct.
         Q.   Okay.  So --
                   THE COURT:  That's correct, even though you do have
         that cominglement.
                   THE WITNESS:  That's correct.
         BY MR. OSTROWSKI:
         Q.   Because once we get into that data, we're not in the file
         retrieval system anymore?
         A.   Right.  Our local area has been these files, yes.
         Q.   Okay.  So remind me where we were again.  Are we ready to
         execute programs?
         A.   Okay.  We've extracted a file.  We're viewing the list of
         files that were extracted and we're ready to execute some of
         these files.
         Q.   Okay.  And --
         A.   Or do whatever.
         Q.   -- how do we, is there an interesting file there?  Are we
         back to the funny -- why don't we pick --
         A.   Let's not do funny.DOS.
         Q.   No.
         A.   Okay.   We had --
         Q.   Why don't you pick one?
         A.   Okay.  I can do just -- we have --
         Q.   How about funny.DOS.  No.  I think I picked that.  I'm
         sorry.
         A.   How about boo?
         Q.   Okay.  We want execute boo program?
         A.   No.  Let's do chomp.
         Q.   Okay.
         A.   Chomp looks fun.
         Q.   Okay.
         A.   Okay.  So we're going to move it down to chomp.  We have
         an X -- now, let me check something here.  Okay.
         Q.   Okay.  How do you execute there?
         A.   Okay.  E, execute.  It's in highlighted, you know, small
         point, you know, we're using highlighted things versus bracket.
         It takes up less, less screen space.
         Q.   Okay.  How do you, how did you execute a program on
         Plaintiff's 7?
         A.   You would -- okay.  You'd get over that, you'd highlight
         that one, you'd press enter, and then it would come back and
         ask you to confirm your choice.  Execute, yes, no, cancel.  And
         then you'd give it a Y, N or C, and enter.
         Q.   Okay.  It's, so it's pretty much the same here.  You've
         highlighted  the program --
         A.   There's similarities, you know.
         Q.   -- and you're going to press E?
         A.   Okay.  We're going to press E to execute, and it asks us
         to confirm that we want to execute it.  Execute chomp com,
         question mark.
         Q.   But on Plaintiff's 7 you highlighted it, and what did you
         do to execute?  It gave you a question?
                   THE COURT:  But you haven't executed yet because you
         had to confirm, is that correct?
                   THE WITNESS:  That's correct.  It wants -- you know,
         did you slip up and press the wrong key, is what it's checking.
         BY MR. OSTROWSKI:
         Q.   Now, that's been true, this confirm has been true of all
         three versions?
         A.   Yes, with minor variations.
         Q.   7, 26 and 36?
         A.   Sure.
         Q.   Plaintiff's Exhibits?
         A.   Yeah.  This is, this is standard.  This is like, this is
         something you really should do all over.
         Q.   Okay.  And how do you --
                   THE COURT:  So would you confirm by hitting, for
         example, Y?
                   THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q.   Okay.  So why don't you do that and --
         A.   Y.  Okay.  We don't have to do a return here.  Okay.  This
         program also allows us to enter, to further customize our call
         to this executable.
         Q.   Okay.  I'm not following that.
         A.   Okay.  Well, some executables you can include what are
         called command line arguments.  For instance, okay, in the, one
         of the old versions of Night, you could give it like a test,
         and you could give it a, you know, some switches.  That's what
         we're allowing here.  The prior versions, they just said, you
         give it the name, and you're not allowed to get any switches in
         there.
         Q.   Okay.  What, give me an example of a switch, and why it
         would be useful?
         A.   Okay.  There's a program called dazzle.XE, and what it
         does is it draws real pretty changing designs on your screen.
         And you can say, okay, if I just say dazzle, it comes up, it
         shows you a screen, it plays you a little song, it says, these
         are our authors, this is what I'm doing, and then it goes into
         the screen drawing part.
         Q.   And you're saying you couldn't do this on Plaintiff's 7?
         A.   That's correct.
         Q.   Okay.
         A.   Now, if I wanted to -- I'm sorry.
         Q.   You mean there would be some way to do it, but it would
         take a long time, or, you know, more key strokes, and so on?
         A.   You -- no.
         Q.   No way to do it?
         A.   You can't do it.
         Q.   Okay.
         A.   Okay.  Now, okay, now, that's how you call dazzle, when
         you call it without command line arguments.  Now, suppose, you
         know, I just want to run dazzle.  I don't want to see this
         opening screen and I want to make sure that it's bios
         compatible, like say --
         Q.   Wait a second.  What does that mean?
         A.   Let's choose something else.  Let's say I want -- okay, I
         want -- I don't want to see the opening screen and hear all
         this opening music.  Just show me the designs and when I'm done
         I'll press a keystroke and it goes away like that.
         Q.   Okay.
         A.   We want to do it quick.  Then I would say, dazzle, space,
         minus B.
         Q.   So are you saying that some users wouldn't use this screen
         at all, they'd just cancel it out?
         A.   This is not always required.  This is just a benny.
         Q.   Okay.  And what, and say we want to cancel this out and
         just run the program?
         A.   Okay.  Enter.
         Q.   Enter.  Okay.  Now we're in the program?
         A.   Oh, that was it.
         Q.   Oh.
         A.   We saw it and we're already done.  We're back.
         Q.   Okay.
         A.   Let's choose, want to choose another one.
         Q.   Were we actually out of the file retrieval?
         A.   Yes.  We were, we went out and -- it was quick.  You want
         to see it again?
                   THE COURT:  Well, what does that mean, quote, any key
         continues, unquote?
                   THE WITNESS:  I can press any key here, and it will
         go back to the file retrieval.
         BY MR. OSTROWSKI:
         Q.   Is that the file -- are we in the file retrieval system
         right now?
         A.   Yes, we are.
         Q.   Okay.  And how does that option differ from Plaintiff's 7,
         when you're out of a program?
         A.   Okay.  The reason, okay, what this screen affords you is
         an opportunity to see if there was an error in the program that
         you ran.  With Plaintiff's 7, when you come out of that XE, you
         jump right back and you redraw your whole screen.  If there
         were any errors in that program you ran, and they picked up an
         error message, it's too late for you to read them.  It's gone.
         You're back to the other screen.  This pauses, and shows you
         most of the screen.  You can, oh, look, I had an error message
         here.  You know.  Want me to run --
         Q.   Okay.  On Plaintiff's 7 when you're done with a program,
         what happens?
         A.   It immediately returns to the, the work area screen, and
         overwrites any error messages that may have occurred.
         Q.   And this one --
         A.   This pauses.
         Q.   -- if there was an error message you'd see it, and you --
         A.   Yeah.  Unless it was under this little window.
         Q.   And what could you do if you saw one?
         A.   It gives you knowledge.  You know, it lets you
         troubleshoot an error.
         Q.   Can you go back to the program though, once you're done?
         A.   Sure.  Any key will get us back.  That's -- now we're
         where we would have been immediately on Plaintiff's 7.
         Q.   Okay.  Let's say there were no errors and we wanted to
         finish the program.  What would we do again?
         A.   Okay.  You want to back all the way out of this?
         Q.   Yes.
         A.   Okay.  Escape.  Again it gives us, do we want to delete
         these files.  Let's say no and keep them there.
         Q.   Okay.  Now we're back to the --
         A.   We're back to the file manipulation window, which is a
         subset of the category listing screen.
         Q.   Okay.  And if we want to just back out of the whole
         program --
         A.   Escape.
         Q.   -- and get back to --
         A.   Okay.  We're backing out, just to our category listing.
         Q.   Okay.
         A.   Escape again takes us to main menu.  Another escape is
         going to drop us to DOS.
         Q.   Okay.  Now, how did the -- using escape a lot, that, it's
         pretty much the standard in the industry that when you --
         escape cancels something and you back out?
         A.   Yes.
         Q.   To where you were before.  And how does the Plaintiff's 7
         CD ROM operate in that regard?
         A.   He wanted a Q for quit, a Q and return.  I don't know if,
         sometimes you -- okay, we didn't try it.  Sometimes for
         convenience sake he'll also include an escape so, you know,
         because it's standard, and you know, so you could quit with
         either an escape.  I don't know if that was done.
         Q.   Okay.  So escape is one key stroke and Q is two?
         A.   Q return, yeah, is the quit that was the more common on
         the 7.
         Q.   And how do we get back out to the main menu?
         A.   We're at the main menu.
         Q.   Oh, I'm sorry.  And how do we exit the program?
         A.   Escape.
         Q.   Okay.  And what do you see on the screen there?
         A.   Okay.  We got at the top blue bar, thank you for using
         Night, and then we'd go to our, our DOS prompt.
         Q.   Did you see any copyright notice in the exit screen?
         A.   No.
         Q.   How about in the opening screen?
         A.   No.
                   MR. OSTROWSKI:  I have no further questions of the
         witness.  Thank you.
              (Witness excused.)
                   THE COURT:  Have you questions, Mr. Kitchen, while
         the witness is here at the machine?
                   REDIRECT EXAMINATION
         BY MR. KITCHEN:
         Q.   Yeah.  Do you know where on this particular disk there is
         a copyright notice?
         A.   No, I don't.  Okay.  In the code?
         Q.   Well, I --
         A.   No.  There's no copyright notice displayed with this
         program when you run it.
         Q.   At all?
         A.   Not in the XE, no.
         Q.   Okay.  It's not in the help file either?
         A.   No.
         Q.   Okay.  Was that by choice?
         A.   I don't ever recall anyone, you know, making a deliberate
         choice.  Somewhere, some time it was taken out.  It must have
         been by, you know, there must have been a choice to do it
         somewhere, yes.
         Q.   Okay.  Now, when these, when you start these CD ROM's,
         does it, does it read or write to any other part of the
         computer?
         A.   Yes.
         Q.   Where?
         A.   It's going to read -- okay.  When you open up a program,
         you're going to go into the directory that you defined and
         installation.  This is where all my program code and things
         are.  When you're going out to retrieval a specific file, it
         looks in a specific -- okay.  We've got a specific set-up we
         use, okay, for directories.  It's going to go to a specific
         directory by a naming scheme we've established, and read those
         files that are in there.  When you extract a file, it's also
         writing to the disk, you know, that it's exploding and making
         a fresh version.
         Q.   Writing to what disk?
         A.   Writing to the hard disk.
         Q.   Okay.  So, this is designed to be used on a system then
         that has a hard disk?
         A.   You can use it on a floppy but it's not best.  It's, you
         know, there's not a lot of space on a floppy.
         Q.   Okay.  Nothing gets written to the CD ROM itself though,
         right?
         A.   That's correct.  You can't write to a ROM.
         Q.   Okay.  Now, in this particular computer, whose computer is
         this, is this yours?
         A.   This is Larry's.
         Q.   Okay.
         A.   I assume this is Larry's.  I don't know.
         Q.   All right.  Well, it's not your, it's not your computer?
         A.   It's not mine.
         Q.   Okay.  So you didn't set it up or anything?
         A.   No.
         Q.   All right.  Now, when you start up any one of these CD
         ROM's, what is the key word you use to start it up?
         A.   Night is, calls the XE.
         Q.   Okay.  And have you done this on more than one version of
         this, of the CD ROM today?
         A.   Yes.
         Q.   Okay.  And when that, when you type Night, that has some
         affect on what's on the hard disk?
         A.   You're not reading, when you just type Night, you're not
         reading or writing to hard disk at that point.  You're -- no,
         you are reading from the hard disk.  Yeah, so it does, it
         affects.
         Q.   What was on -- now, we're out of it, we're down to the DOS
         level now, right?
         A.   Yes.
         Q.   What's on the hard disk now that has to do with Night?
         A.   We're got a -- okay.  Let's do a directory here.  We've
         got a configuration file.
         Q.   You're typing D-I-R?
         A.   Yes.
         Q.   And what directory were you in at the time you typed D-I-
         R?
         A.   I'm doing a directory of C:\Night, which is the directory
         that contains the, some of the pertinent files.  Not the data
         files, but the working files, if you will.
         Q.   And the C: part of that designation meant what?
         A.   The C drive.  This is the drive letter of -- this is the
         hard drive.
         Q.   Oh.  This is not the CD ROM, this is the hard disk that's
         on the computer?
         A.   That's correct.
                   THE COURT:  I see six first dates up there.  Seven of
         the dates are today's date.
                   THE WITNESS:  Yeah.  Yeah.  Okay.  Because I went in,
         okay, this Night back, comes from this config.  I edited this,
         okay, and my editor also made a back-up.  So that's that.
         Install bat.  We created that today in a prior version.  I
         think that was, that's off 7.  Yeah, see, we had an earlier
         time there.  Yeah.  And that covers them.  And we just made
         these directories today so they're today.
         BY MR. KITCHEN:
         Q.   Well, if a user bought this disk, he wouldn't have a, a
         directory Night in his, in his hard disk, would he?
         A.   Not very likely, that's correct.
         Q.   Okay.  Well, then, wouldn't it be a little more even
         playing field if there wasn't a sub-directory or a directory on
         the C drive that said Night?  Wouldn't that be a more usual way
         of starting this thing out, if you bought the Night Owl disk
         and put it in?
         A.   I'm sorry.  Excuse me.  I'm --
         Q.   Well, in other words, if you were a user who just bought
         the Night Owl disk, would you have C:/Night on your C
         directory?
         A.   No.
         Q.   What would you have on there, anything with Night on it?
         A.   No, you wouldn't have anything.
         Q.   That isn't the way we started this one though, is it?
         A.   That's correct.  We already had, we had stuff in there.
         Q.   You think it would make a difference here, if we deleted
         all this stuff, C:\Night, and started up like we had just --
         A.   We could do that.
         Q.   -- purchased the disk?
         A.   We could do that.
         Q.   All right.  Would you do that?
         A.   Certainly.  Okay.  D-E-L.  We're going to delete the
         directories.  Am I sure.  Yes, I am.   Okay.   I'm going to
         back out of this directory and delete the Night directory.
         Okay.  Now I'm just, it's like it's never been done.  Did you
         want to --
         Q.   Yeah.  Then --
         A.   Okay.  I'm going to go to the ROM drive, to Z.  And I'm
         going to call the program Night.  Okay.  That throws up our
         installation choices screen.
         Q.   This is what a user would see the first time he put the
         thing in?
         A.   Yes, it is.
         Q.   And how would he go about installing it?
         A.   Okay.  To install, we say I, it asks me a series of
         questions.  Do you have a color monitor?  Y, yes.  Location of
         the Night directory.  C, C Night.
         Q.   Well, let me, let me stop you for a minute there.  Is that
         asking for the location of where you want the Night directory
         to be?
         A.   Yes, it is.
         Q.   This isn't asking for the location of where it actually is
         because it isn't there yet, right?
         A.   That's correct.
         Q.   Okay.
         A.   Okay.  So we've, okay, we'll take the default answer.
         We'll say, yeah, sure, put it in C Night.  ROM drive Z.  We're
         going to do this same thing again.  There we go.
         Q.   And let me stop you for just a second.
         A.   I'm sorry.  I'm bringing it on that one.
         Q.   In the second line, we had the words appear, what --
         A.   I know why we had --
                   THE COURT:  Wait a minute.
         BY MR. KITCHEN:
         Q.   What drive contains the Night Owl CD ROM, question mark,
         bracket, small e, close bracket, and then a green space that
         had an e in it, right?
         A.   Yes.
                   MR. OSTROWSKI:  Objection.  Leading.
                   THE COURT:  He's just reciting what was there before
         it changed to its present picture of having a Z in it.
                   MR. OSTROWSKI:  All right.
                   MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q.   Well, now, and then you did something on that line, and
         pressed some keys and got a beep instead of what you wanted.
         What, what happened?
         A.   Okay.  This is -- remember earlier we had problems when I
         thought it wasn't recognizing the C drive, and I thought, oh,
         this is a glitch in the program.  No.  This was Phil's fault.
         I was -- what it does is it puts you -- okay, see here.  It's
         putting us at the end of the default line.  In the case of the
         CD ROM there's only one character there, so it's putting us at
         the whole end of the field, and I was trying to type in another
         answer when I was already outside the field.  It said, I'm out
         of room, you can't type in anymore.  That's why it was beeping
         at me before.  That's why it beeped at me this time.  This time
         I was smart enough to recognize that I had to play backspace.
                   THE COURT:  Well, I noticed before when you were
         saying Z, there was a small letter e in the green field.
                   THE WITNESS:  Yeah.  That was the default answer.
         It's going to give you that, so if you want to just, if you
         want to, just want go like this and --
                   THE COURT:  Okay.  Okay.  But the e was in the green
         field to which my finger is pointing in the second line at the
         same time your lips were saying Z.
                   THE WITNESS:  Yes, Your Honor.
         BY MR. KITCHEN:
         Q.   Well, now, let me ask you something else, Phil, and that
         would be, why is there e already in there?
         A.   An e is a common drive for the source code.   We just make
         a convenience.
         Q.   Okay.  So we're on track?
         A.   Yes.
         Q.   All right.  Proceed with your installation.
         A.   Okay.  We're going to -- yes, I'll proceed.  I want to
         justify my stupidity earlier, but okay, we're going to choose,
         okay, what is the name of your picture viewer file.  We've got
         see show on this machine apparently, so I give it that.  Is
         this information correct?  Yes, we're correct.  Y.  Okay.  It's
         copying pertinent files.  Again, do you want to copy in the dir
         text files.  No.
         Q.   Well, now, did you have that option of whether you wanted
         to copy those text files onto the hard drive in the earlier
         versions?
         A.   I don't know if it was in 7.  It was in the disk we looked
         at before this.
         Q.   All right.  We've looked at a total of how many disks?
                   THE COURT:  Now, the one you looked at before was
         what, Plaintiff's 26?
                   MR. KITCHEN:  Well, if -- I don't want to interrupt
         you, Judge.
                   THE COURT:  Well --
                   MR. KITCHEN:  I was going to --
                   THE COURT:  -- we got 36 in there now.
                   MR. KITCHEN:  Yes, Your Honor.  I was going to
         attempt to clarify.
                   THE COURT:  And he had talked earlier, 26.  I hadn't
         myself observed the number.
         BY MR. KITCHEN:
         Q.   Do you know how many disks we've looked at?
         A.   I think we looked at three.
         Q.   All right.  And do you remember the Plaintiff's Exhibit
         number on the first one?
         A.   First one was Plaintiff 7.
         Q.   Okay.  Do you know what version that was, by the way?
         A.   No.
         Q.   Okay.  And do you know what the second one we looked at
         was?
         A.   No.
         Q.   Okay.  All right.
                   MR. KITCHEN:  Well, I'll ask counsel, can we
         stipulate that the first one that was put in was Plaintiff's
         Exhibit 7, which was PDSI-004-1?
                   MR. OSTROWSKI:  Yes.
                   MR. KITCHEN:  And the second one we looked at was
         Plaintiff's 26, which was NOPV-007?
                   MR. OSTROWSKI:  I'll stipulate that the second one
         looked at was Plaintiff's 26, NOPV-7.
                   MR. KITCHEN:  Okay.  And now we're looking at NOPV-
         009, correct?
                   MR. OSTROWSKI:  Yes.  That's, I'll stipulate to that.
                   MR. KITCHEN:  Okay.  Which is Plaintiff's 36.  Okay.
         And I bring it up, I think it's worthy of bringing up because
         we keep talking about 7, and obviously the second one that we
         did, which was Plaintiff's Exhibit 26, is NOPV-7 and
         Plaintiff's 7, Exhibit 7, was the first one, which was PDSI-
         004-1, as if all of this wasn't confusing enough.  All right.
         BY MR. KITCHEN:
         Q.   In any event, what would be the benefit of answering yes
         in that previous question and having the directory file end up
         on the hard disk?
         A.   Increase in speed in the program, in certain areas of the
         program.
         Q.   Okay.  How would that, how would that affect the user, or
         how would that help the user?
         A.   When he goes onto the main menu and he says, okay, I want
         to view personal applications, when he presses enter, the time
         from -- we have -- I'm sorry.  When the user presses enter in
         selecting a category off the main menu, the next screen, that
         is the category listing screen, is going to come up quicker,
         and we select this.
         Q.   Do hard disks access files more quickly than --
         A.   Yes, they do.
         Q.   -- CD ROM's?
         A.   Yes, sir.
         Q.   Okay.  All right.  Why don't you continue with the process
         here.
         A.   Okay.  I got installation --
                   THE COURT:  I'm expecting a telephone call with an
         argument so we're going to have to interrupt for whatever time
         that takes.
                   MR. OSTROWSKI:  Okay.
                   MR. KITCHEN:  Okay.
                   THE WITNESS:  Okay.  I got installation config --
                   MR. KITCHEN:  We're interrupting right now, Judge?
                   THE COURT:  Right now.
                   MR. KITCHEN:  Okay.

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         Witness                         Dir  Cross  Redir  Recr




         Philip C. Swanson                     504    671