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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, October 21, 1993 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 (GREGORY J. ARMENIA, Defendant's Witness, Previously Sworn) CONTINUED CROSS EXAMINATION BY MR. KITCHEN: Q. Mr. Armenia, last time we were here was the day before yesterday and I know there were questions about dates and you had some inability to recall certain dates and that sort of thing. I'm wondering if you have had a chance to refresh your recollection any more and if there's any testimony about dates or other things that would be changed, having had a little more time to think about them? A. I made no effort to go look up any dates that you wanted or anything like that, no. Q. During the months or during the time that you were regularly acquainted with Richard Graham and went over to his house and saw him from time to time and were running this particular BBS under the Night Owl name, did you have an occasion to note whether or not Mr. Graham had any physical problems, medical problems? THE COURT: Any what? BY MR. KITCHEN: Q. Physical or medical problems. A. Well, he claimed to have a heart problem. Q. Okay. Was that a particular event that occurred while you were acquainted with him? A. No. It was, he always complained about a heart problem he had for I guess quite a bit of time before I even met him. Q. I see. So, but during the time that you met him then, you don't remember any actual occurrence of a heart problem, other than the fact that he had an ongoing -- A. Right. Q. -- problem? A. No. Just had an ongoing problem that my wife recommended he go to a specialist. We set it up that he see a specialist and he did a thorough examination and -- MR. OSTROWSKI: Objection. BY MR. KITCHEN: Q. Your wife -- pardon me? MR. OSTROWSKI: I'm objecting on the grounds of hearsay. BY MR. KITCHEN: Q. Did you say your wife set up an appointment with the specialist? A. Yes. Q. Do you know the name of the specialist? A. Oh, I don't know. MR. OSTROWSKI: Objection. Hearsay. THE COURT: Does he know the name of the specialist? BY MR. KITCHEN: Q. Do you know the name of the specialist? A. No, I don't. THE COURT: Well, what's the basis, what would be the basis of his knowledge? I think that's what Mr. Ostrowski's worried about. MR. KITCHEN: Well, since he doesn't have any knowledge at the present time, then -- THE COURT: Well, maybe Mr. Graham told him. That would be a different ball game. MR. KITCHEN: Right. BY MR. KITCHEN: Q. In any event, you're under the impression this was a previous condition that he had, even before he knew you? A. Yes. Q. Okay. And how about, how about Mrs. Graham, did she have any medical problems of which -- MR. OSTROWSKI: Objection to relevance. BY MR. KITCHEN: Q. -- you were aware? THE COURT: If you know. BY MR. KITCHEN: Q. Did she have any medical problems of which you were aware? A. No, not that I know of at all. Q. All right. MR. KITCHEN: Your Honor, can I -- could the Court let me know what the last number we've used for Plaintiff's Exhibits? THE COURT: Yeah. We're into -- MR. KITCHEN: I think it's 64, Your Honor. THE COURT: 65 would be the next one. MR. KITCHEN: Okay. 65. (Document marked Plaintiff's Exhibit 65 for identification.) MR. KITCHEN: 65 is a two page letter with a date on it, 6/23/93, and I'll show that to the witness. THE COURT: From whom to whom? MR. KITCHEN: It has no addressee, Your Honor. It is signed, The Market Place, as the witness will see. BY MR. KITCHEN: Q. Take a look at that and read that through, if you will, please. A. Did you want to know about this? Q. Okay. You've had a chance -- THE COURT: Why don't you read it to yourself. Then he'll ask you a question, I guess. MR. KITCHEN: Right. BY MR. KITCHEN: Q. You've read that then, right? A. Yes. Q. Okay. Who did you deal with at The Market Place? MR. OSTROWSKI: Objection. Relevance. THE COURT: Whom did Mr. Armenia deal with at The Market Place? MR. KITCHEN: Yes, sir. THE COURT: First of all, what was The Market Place? MR. KITCHEN: Well, The Market Place, as the Court may or may not recall, is -- THE COURT: Evidently the Court doesn't. MR. KITCHEN: No. -- was identified as the business name for a Mark Abacci or Abaci, who was the first person named as the basis for the reputation evidence that was put in. THE COURT: All right. Do you agree with that, Mr. Armenia? THE WITNESS: If I, if I stated Mark Abacci -- THE COURT: Do you remember whether or not Mr. Abacci ran something called The Market Place? THE WITNESS: Oh, yes, he did. THE COURT: Very good. That's all I wanted to find out. BY MR. KITCHEN: Q. Is he the person you dealt with at The Market Place? A. Yes. Q. And you've read the things related in Exhibit, Plaintiff's Exhibit 65, right? A. Yes. Q. Okay. And does that describe essentially communication with you regarding your business dealings with The Market Place? A. In this paper it does. Q. Yes. A. But that was never conversations that I had with Mark, no. THE COURT: Does it deal with that subject matter? THE WITNESS: It deals with that subject matter, yes. BY MR. KITCHEN: Q. Okay. And in fact, Mark Abacci was the one -- and by the way, do we know how we spell Mr. -- his name, this person, Mark. What is his last name? Do you have -- it's not in there, by the way. A. I couldn't spell his name for you, no. Q. Okay. Is it Abacci or Abaci? A. You know what. I don't even recall ever hearing it pronounced properly, so I couldn't even tell you. Q. Okay. But it's something like that? A. Right. Q. All right. In any event, he's the one you did the dealing with? A. Yes. Q. And he's the one that you had conversations with about selling disks to The Market Place? A. Yes. He was at one time my sole distributorship that distributed alongside me, yes. Q. So in other words, the things that are related in this letter are conversations between you and this person, Mark Abacci or Abaci? A. No. These are Mark's words, not mine. Q. I see. And so, are you saying that Mark's statements about what happened between you and him in the business dealings described in Plaintiff's Exhibit 65 are not truthful? A. Yes. Very much so. Q. So -- THE COURT: Excuse me. What? THE WITNESS: Yes. Very much so. BY MR. KITCHEN: Q. So Mr. Abacci is either mistaken or lying, correct? A. He is lying. According to me, he is lying. Q. He is -- okay. A. He is lying. Q. All right. So as far as you're concerned, Mark Abacci is a liar? A. Yes, he is. Very much so. Q. All right. Did you have conversations with Mike Shannon about Richard Graham? A. Yes. Q. And this Mike Shannon, he's the one who's involved with an outfit called Star Vector? A. Yes. THE COURT: Called what? MR. KITCHEN: Star Vector. BY MR. KITCHEN: Q. And is that your sole distributor right now? A. I, I would say in the realm of distributorship, yes. Q. Okay. And so he's the only one handling your product -- A. No. Q. -- at the present time? A. No. There are many dealers that carry our product. Q. Okay. Is he the only wholesale distributor handling your product? A. No. I -- me and -- me and Star Vector are, yes. Q. I see. So he's the only wholesale distributor, other than yourself, who is handling your product? A. At this time, yes. Q. All right. And where is, where is Mr. Shannon located? A. Washington. Q. State or D.C.? A. State. Q. State. Does he come to Buffalo at all? A. No. Q. Did you give him information about the lawsuit that was pending, this lawsuit involving Richard Graham and Larry James? A. Nothing that I wouldn't have given anyone else. THE COURT: Did you give anything to him? THE WITNESS: Pardon me? THE COURT: Did you give him any information about the lawsuit? THE WITNESS: I don't know what you mean by -- THE COURT: Regardless of whether you gave the same or more to anyone else. THE WITNESS: I don't know what you exactly mean by information. Can you be more -- BY MR. KITCHEN: Q. Well, did you tell him there was a lawsuit pending -- A. Sure. Q. -- between Richard Graham and -- A. Yes. Q. -- Larry James? A. Yes. Q. Did you tell him what it was about? A. He knew what it was about. THE COURT: How did you know that he knew what it was about? THE WITNESS: Well, the way he talked about it, he knew that it was, what it was about. BY MR. KITCHEN: Q. Well, did you also tell him -- well, did you also tell him what it was about? A. I didn't, I didn't give him first knowledge of it, no. Q. Well, did you, did you fill in any details for him? A. No. Q. Well, you were much closer to this lawsuit, weren't you, than he was? A. Pardon me? Q. You were much closer to this lawsuit than he was, weren't you? A. Well, now I am, yes. THE COURT: When did you talk -- BY MR. KITCHEN: Q. When did you talk to him? THE COURT: When did you talk with Shannon? THE WITNESS: Some time ago. THE COURT: How -- what time ago? THE WITNESS: Oh, I would say -- I would say somewhere in September. THE COURT: Of what? THE WITNESS: '93. BY MR. KITCHEN: Q. That would be last month? A. Yes. Q. All right. And what did you tell him? A. That this lawsuit was ongoing and hadn't been settled yet. Q. And did you tell him what the lawsuit involved, in terms of how much it was being sued for, and that sort of thing? A. I don't know if I told him how much the lawsuit was for. Q. Do you remember mentioning to him that, something about a six figure settlement? A. No. Q. No. You never mentioned six figures? A. No, not that I know of. Q. You never told him that the case in fact involved in the hundreds of thousands of dollars? A. No, not -- I can't recall telling him that. Q. What did Mr. Shannon tell you about the lawsuit? MR. OSTROWSKI: Objection. Hearsay. THE COURT: Sustained. Don't answer it. MR. KITCHEN: Your Honor, I would ask the Court to reconsider, in light of the fact that he has utilized Mr. Shannon as one of the sources of the reputation evidence. THE COURT: Well, ask him what he said about Mr. Graham's reputation then, or how it relates. Just about the lawsuit itself is too broad and not relevant. BY MR. KITCHEN: Q. Well, did he indicate -- did Mr. Shannon indicate where he had gotten information about the lawsuit? MR. OSTROWSKI: Objection to relevance. THE COURT: Yes or no. He may answer it. THE WITNESS: Did he indicate where he got it from? No. BY MR. KITCHEN: Q. Okay. Did he indicate who he had talked to? A. No. MR. OSTROWSKI: Objection to relevance, and hearsay. THE COURT: It's been answered. BY MR. KITCHEN: Q. Are you acquainted with a Peter Armenia? A. Yes. THE COURT: Peter? THE WITNESS: He's my brother. MR. KITCHEN: Peter Armenia. Peter. THE COURT: Same last name as yours? THE WITNESS: Yes. BY MR. KITCHEN: Q. And who is he? A. He's my brother. Q. And what does he do for a living? A. He's a computer programmer for Kodak. Q. And did you introduce him to Richard Graham? A. Yes, I did. Q. When did you do that? A. I couldn't give you a date. THE COURT: About when? THE WITNESS: In 1991, somewhere around, I'd say November, somewhere around there. BY MR. KITCHEN: Q. Okay. Why did you do that? A. Richard was looking for someone who could take out a copyright out of Larry's codes. THE COURT: What do you mean, delete it? THE WITNESS: Well, they couldn't just be -- THE COURT: Remove it? THE WITNESS: Yeah. To remove them. They couldn't just be simply removed. It would take a very, someone very technical, who understood the codes, to remove them. BY MR. KITCHEN: Q. Well, why did it require somebody so technical just to change the text? A. It's not a changing of the text. It's, it's the writing of the text and the text, the way Larry wrote the text it couldn't just simply be, it's not just text. Q. What do you mean, the way he wrote the text? A. Well, he's a writer. He knows what he's writing, so -- Q. Well, I know, but -- A. I don't know. You're better off asking him that than me. But all's I know is it's not a simple feat. It's not just like going into a text editor and removing a sentence out of a paragraph. It just doesn't work that way. Q. All that he wanted to change was just the language, right? A. Regardless. When you take -- if something is coded into the codes, you cannot, from what my understanding is, I'm not an expert -- THE COURT: Do you have any understanding? THE WITNESS: Pardon me? THE COURT: Do you have any understanding, other than what people have told you? THE WITNESS: No. Outside -- THE COURT: All right. Don't answer the question. THE WITNESS: Okay. BY MR. KITCHEN: Q. Well, are you aware of whether or not there was a particular problem with this particular program in the way that it was written that would somehow make it more difficult to change the copyright notice? MR. OSTROWSKI: Objection. It's not within his competence. MR. KITCHEN: No. I'm -- THE COURT: He may answer yes or no. Do you have the question in mind? THE WITNESS: Yes. Yes. BY MR. KITCHEN: Q. Okay. And what was that problem? A. That you can't tamper with the codes, that they wouldn't function properly if you tampered with them. Q. All right. Now, did you understand that this was a problem specific to this particular program versus programs in general? MR. OSTROWSKI: Objection. Relevance. THE COURT: Well, it's relevant. I'm worried about how he knows and whether we're dealing with hearsay. THE WITNESS: Yes. The -- THE COURT: Wait a minute. Don't answer. THE WITNESS: Oh, I'm sorry. MR. KITCHEN: Well, Your Honor, this witness has been asked on direct a variety of questions relating to what went on over at, at the Grahams' and who said what to whom. THE COURT: All right. Now is this something happening at the Grahams', is that what your question is limited to? MR. KITCHEN: Yes. THE COURT: Well, put that in your question. MR. KITCHEN: All right. BY MR. KITCHEN: Q. Based on your, your contact with Richard Graham and this program and what was going on at the time, what was the -- well, was the problem of not being able to change the copyright notice without destroying or disabling the function of the program, was that something that was specific to that program, as opposed to programs in general? A. No. Any program that was actually, probably that I know of, that is worth money, if you tamper with the codes, the author would always put in codes to protect any tampering whatsoever. Q. Okay. That's actually what I'm looking for. To your knowledge then, there were some sort of locks or devices specifically put into this program to discourage or prevent any tampering with the program? A. Exactly. Q. All right. And you contacted your brother? A. Yes. Q. And what did you tell your brother? A. I told him that Larry -- that Richard said that this program is his, and that a man named Larry James was trying to steal it. Based on what Rich told me, was trying to steal it from him. He came over to Rich's house. Rich explained, explained -- told him the same thing he told me, showed him original -- he showed him original, supposedly the original codes that Rich told me and my brother that he wrote in basic, and told us that he wrote that in basic, and that it was his original codes, and that he hired Larry to rewrite the codes and see and, and now, and he put it in his copyright, and he's trying to steal his codes from him. And that's what he told us. And my brother believed him. Q. And this is how you related this to your brother? A. That's how Richard related it to my brother. Q. Well, I didn't ask you what Richard told your brother. I asked you what you told your brother, and you went into this long answer? A. I just, I just told him, I reiterated what Rich told me, and then Rich told him the same thing in the house. Q. Okay. And did you use pretty much the words you've just used in describing this, this conversation? A. Yes. Pretty much. Q. Okay. So you told Peter that it was Richard who claimed that Larry stole his program? A. Yes. Q. But did you also tell Peter then that you didn't believe that? A. I believed Richard at the time, yes. Q. You did? A. Yes. I wouldn't have told my brother, it's something I didn't believe in at the time myself. Q. Well, did you, did you hedge in your conversation? In other words, did you, did you relate this to Peter in such a way as to say, well, look, I don't know one way or the other, but this guy Graham claims that, that this guy James stole his program. Now, maybe Graham's telling the truth, maybe Graham's a liar, but Graham wants you to hire to change this program. Is that how you put it? A. No. I absolutely believed Richard. Q. You did? A. Yes. Q. Why did you believe Richard? A. I had no reason to doubt Richard at the time. Q. And, well, you had met Larry James? A. I met Larry James, yes. Q. You -- A. Once, or twice. Q. You had talked to him, right? A. For, very briefly. Q. Did you have any reason to doubt Larry James? A. I didn't know Larry James. Q. Okay. Did there come a time -- A. I never heard Larry James' story either. Q. Pardon me? A. I never heard Larry James' side of the story until after I left employment with Richard Graham. Q. Okay. A. Broke all association with Richard at the time. Q. All right. When did you have reason to doubt Richard Graham? A. Just prior to the pretrials of this, of these, of this Court proceedings, when untold to me up until that time that Larry was to bring in a witness by the name of Jeff Anderson, which at that time I said, Rich, you know, Rich was all nervous about Jeff Anderson being a witness. I said, Rich, what do you care if Larry brings Jeff Anderson in as a witness. Q. Now, the question was when? A. Right. Q. So I want to -- A. When? Q. Yeah. When did this, when did this occur? A. Right at the beginning of the pretrial, right before we came in here, into the trials or any pretrials. I don't know what the date is, but it was just, just prior to coming in here, Rich broke this news to me. Q. So it was the day of the hearing? A. Not the day of the hearing. It was just prior, before. It could have been a day before. Could have been two days before. It was just before we came in, into the hearing. Q. And where did this conversation take place? A. In Rich's home. Q. And who was present? A. I believe his wife was present. His wife was there pretty much all day long. Q. You -- excuse me, you, Richard and Richard's wife? A. Yes. Q. What's her name, by the way? A. Ann. Q. And this was within a day or so before coming to Court in December of 1991? A. Yes. Q. And what did Richard tell you he was going to do then? A. He told me that he was -- he told me that Jeff Anderson was coming as Larry's witness, and he was extremely up tight about it, and I said, well, you know, what are you getting all worried about it for because, I said, what is Jeff -- I knew Jeff Anderson by name. I said, what does -- he was a sysop in the Buffalo area and that's all I knew of Jeff Anderson. And I asked Rich, what does Jeff Anderson have anything to do with this case. That's what Rich said, well, Jeff was the one who wrote the original, the one in basic, and at that point I was, I was in shock, that -- Q. Why were you in shock? A. Because Richard had all, from all this time, had told me up until right, right prior to that time, to that conversation, Rich had always told me that he wrote the original codes in basic, and to find out that he, he changed his story. Now a person who I never heard of, or was never mentioned before at any time in our relationship is now the author of the original basic. I was very shocked to hear this evidence. Q. Did you tell Richard you were shocked? A. Yes. I could not believe it. I couldn't believe why he wouldn't tell me that or why it was never mentioned, and why he would tell me he was the, the author of the codes. Q. And what did Richard say to that? A. He said, well, Jeff wrote the codes and I, I wrote part of the codes, after he was done writing the codes. So we were both authors of the codes. Q. Was that a satisfactory explanation to you? A. No. Q. Why not? A. It didn't -- at that point all that I could say that, what I did from that point on was just sit back and evaluate everything from unbiased eyes which I observed from that moment on. Now I, now I had a reason to doubt what Richard tells me and I would always, from that moment on, question anything he told me, from that moment on, and would look a lot deeper than obviously I had been looking. Q. Did you know that at the hearing, that Jeff Anderson in fact did testify, correct? A. I don't know when Jeff Anderson testified, no. Q. Did you know -- A. Because no one ever talked to me, ever since Rich revealed that to me -- Q. Did you know -- A. -- he didn't discuss the case with me any further. Q. Did you know that Jeff Anderson testified at the hearing in December 1991? A. I, I don't know that, don't have knowledge if he did or didn't. Q. So you have never heard until my question at this very moment in time that Jeff Anderson testified in December of 1991? A. I can't recall any, any conversations or any knowledge where I would have obtained that Jeff Anderson -- Q. Are you surprised to hear that Jeff Anderson testified in December 1991? A. No, because Rich told me that Larry was bringing him in as a witness, so I knew he was going to testify and Rich had prepared me or -- Q. Do you have -- A. -- had broke the news to me that he was going to. Q. Do you have any -- A. And what it was going to be about. Q. Do you have any knowledge about the testimony of Jeff Anderson? A. No, I don't. Q. You never talked with Larry James about the testimony of Jeff Anderson? A. Not that I can recall, no. Q. You never talked to Larry James about the fact that Jeff Anderson was involved in writing the original quick basic program? A. No. Basically what I talked to Larry about is business, and our business, and I really don't talk to Larry about the case. Q. Okay. A. Up until when I'm in the Court here or something. Q. All right. A. Or when he asks me a question, if I know something or something. Q. Now, then I take it you were not present at the date of the hearing at which Jeff Anderson actually testified? A. I was at the hearings, but I don't know what was going on in here, so I don't know who testified or who said what. I don't know what went on in here. I do not know. Q. And after the hearing, didn't you go over to Richard Graham's house? A. Yes. Q. And wasn't there some discussion about what went on at the hearing? A. Like I said, after being notified of Jeff Anderson and probably most likely -- Q. Well, just yes or no. Was there some dis -- A. -- most likely my reaction, I have not, Richard did not -- Q. No. I didn't ask for your reaction. I asked for -- A. I'm going to answer the question. THE COURT: Wait a minute. One at a time, please. BY MR. KITCHEN: Q. The question was a yes or no question. After leaving here you went over to Richard Graham's house. Was there discussion about the hearing? A. Yes, there was. Q. And didn't Richard Graham tell you what Jeff Anderson had testified to? A. No, he didn't. He told me that Larry -- Q. Well, you've answered the question. It was a yes or no question. Now, at some time subsequent to that, did you learn that there was an injunction in place prohibiting Larry James from utilizing the program that was at issue in this lawsuit? A. Yes. Q. How did you find that out? A. You told me. Q. And when did I tell you that? A. When we, when me and Richard were walking out of here, that it wasn't actually, I think it was you and Richard told me together. That's where I first heard it. Q. And that was the day of the hearing? A. Whether it was you or Richard that I heard it from, it was in our presence that I heard it. Q. And that was the date of the hearing? A. No. That was whenever, I can't remember exactly where it was, but it was from you and Richard that I heard it from. Q. And did that indicate to you that Richard had been telling the truth about the ownership of the program? A. No, not at all. Q. Okay. A. I thought the Courts were just protecting -- Q. Did that indicate to you that, that Larry James' version was more truthful? A. No. MR. OSTROWSKI: Objection. Relevance. THE COURT: It's been answered. BY MR. KITCHEN: Q. Did you give Richard any advice about the legality of this lawsuit? A. Not about the lawsuit, no. Q. What about? Did you give him some advice about legality of other things? A. Actually, we only tried to find out what type of laws, if stating what Rich's testimony was, what he could be charged with or whatever. The same thing I told you when we came into the office, made you aware of the computer laws. Q. What did you tell me when you came to my office? A. There, I just pointed out computer laws that you seemed to be not aware of at the time. Q. What computer laws did you point out? A. New York State Penal Law book. I couldn't give you the exact articles. THE COURT: Penal, did you say Penal Law? THE WITNESS: Yes. BY MR. KITCHEN: Q. Right. And what about those laws, what did you tell me about those laws? A. We were trying to determine what Rich was worried about, that this program was going to be sold, and we were trying to find out ways to -- Q. So what did you tell me? A. I told you, I pointed out laws to you. Q. And what did you say about them? A. I didn't say anything about them. I just pointed them out to you and you looked them up. Q. You -- A. Or you tried looking them up, and then eventually you found them. Q. Okay. Did you, did you give me some indication at that time about your opinion as to who owned the program? A. Only told you and reiterated, anything I told you I reiterated what Rich told me. And -- Q. Well, what -- A. -- nothing of my own was, of my own -- Q. What did you tell me? A. If I told you anything, that's what I told you. I don't know -- THE COURT: Did you tell him anything? THE WITNESS: No, because Rich was basically doing all the -- MR. KITCHEN: You didn't tell me anything? THE COURT: Did you tell him anything? THE WITNESS: I need a -- BY MR. KITCHEN: Q. Is that your answer, that you didn't tell me anything? A. No. That's not my answer. Q. All right. A. I did talk to you. Q. What -- A. I did not -- Q. What did you tell me? A. I talked to you and told you that, what my association was with Richard. Q. Yes. A. That Richard had told me that, that Larry was stealing his program from him. Everything that I've told you, I mentioned already previous to, to me talking now, is what I told you. About what I told my brother Peter, that's what I told you. Same thing that I told my brother I told you. Q. Did your brother know Jeff Anderson? A. No. Q. Is your brother still a programmer in Rochester? A. Yes. I didn't say he lived in Rochester though. Q. Didn't you tell me in my office that you thought that Richard should start a lawsuit against Larry James? A. No. Richard started his own lawsuit, and he told me he got a lawyer. Q. So the answer to the question is no, you didn't tell me that you thought Richard should start a lawsuit? A. No. Q. Okay. Did you tell me that you thought Richard should prosecute Larry James criminally if that were possible? A. No. I told Richard -- Q. No. I just asked, yes or no, whether you did tell me that? A. Tell you that? Q. That's right. In my office? A. No. No, I did not tell you that. THE COURT: Why then were you talking with Mr. Kitchen about the New York Penal Law? THE WITNESS: He, he -- I mentioned some laws to him that -- THE COURT: Why did you mention the law to him? THE WITNESS: Because that's what they were trying to find out, what they could charge, charge Larry with. THE COURT: Charge Larry with something criminal. THE WITNESS: Right. THE COURT: All right. THE WITNESS: That's what they initially were trying to charge him with. BY MR. KITCHEN: Q. So were you just there like as a disinterested observer? A. No. I was very interested. Q. And what was your -- A. I was looking out for Rich's best interest. Q. And what was Rich's best interest at the time, as you saw it? A. That he protect his, if this was his property, that he would, that it would be protected. Q. And at the time, you thought it was Richard's property? A. At the time, according to Richard's -- Q. Why did you think it was Richard's property? A. Because Richard had convinced me that it was his. Q. And what, what made you think that it was his property? A. Just slowly his testimony and his words to me. Q. And, but what I'm saying is that you wouldn't have necessarily accepted his word, just if he said, it's my property, and didn't offer any explanation, would you? A. Well, he did, like I said. He showed me the codes, older codes and original basic. Q. Yes. A. And he claimed it was his, it had his copyright in it. And he claimed it was his. Q. It did have, it did have his copyright notice in it, didn't it? A. Yes, it did. Q. Okay. A. He pulled it off one of his old Roms. Q. All right. Did you have any understanding between authorship and -- or, of the distinction between authorship and ownership of a copyright? MR. OSTROWSKI: Objection. It's beyond his competence. MR. KITCHEN: Well, I'm asking him if he had any knowledge. MR. OSTROWSKI: It's a legal question. THE COURT: He may answer yes or no. THE WITNESS: At that time, no. THE COURT: Just yes or no. THE WITNESS: No. BY MR. KITCHEN: Q. And, but you were a criminal justice student, right? A. Yes. Q. And you had looked into some of this sort of thing, right? A. Nothing to do with copyrights. It has nothing to do with being a criminal justice -- no, nothing at all. I didn't even know where to look. Q. Okay. But you had looked into things to do with computer law, right? A. As far as what books I had available to me from the courses I have taken which was New York State Penal Law was one of them. Q. Okay. And when this issue came up with Richard and Larry, you, you looked up some of that stuff, right? A. Sure. Q. Okay. And then you told that to Richard, didn't you? A. Yes. Q. What did you tell Richard? A. I said that, based on what Richard was telling me, he could be charged with, with some of these New York State Penal Laws. Q. Okay. And do you remember what the laws were? A. No. They were just computer laws. I couldn't tell you exactly what they are without looking them up again. Q. Okay. Now, at the time you feel that, that -- you felt that Larry James had in fact stolen the program from Richard? A. Yes. Based on Richard's testimony. Q. But when you found out that Jeff Anderson had been involved in writing the initial program, then you changed your mind and believed that Larry James had not stolen anything from Richard Graham, is that true? A. No. Q. Okay. So when did you change your mind and begin to believe that Larry had not stolen anything from Richard Graham? A. Well, I haven't come to a complete conclusion until after I was unassociated with Richard all together, and that was about a month to a month and a half after, after that. Q. So we're talking about some time in January of 1992? A. January, February. Q. All right. And had you by that time then already talked to Larry James? A. No. No, I didn't. Q. Okay. So you reached the conclusion after terminating your relationship with Richard Graham, but before initiating any relationship whatsoever with Larry James? A. Yes. Q. Okay. Now, what -- did you get any input or communication with anyone else during that period of time that led to your change of mind that occurred in January 1992? A. Can you ask that question one more time? Q. Did you have any communication with anybody else or any input from any other source that, that helped you to change your mind about whether or not Larry James had stolen anything from Richard Graham? A. No. There was no input from anybody. Q. Okay. So this was just done by thinking it over? A. By sitting back and taking an objective look of everything and all, my relationship with Richard and everything that went on. Q. Well, when you say an objective look though, we're not talking about you actually looking at anything, we're talking about you just kind of reflecting? A. Reflecting, yes. Reflecting. Q. All right. Now, were you aware that when Larry James had -- well, strike that. When Richard told you about what had happened, did he also tell you about what happened to his hard drive? A. What happened to his hardware? Q. His hard drive? A. Hard drive. Q. Hard drive? A. Yes. Well, what about it. Q. Are you acquainted with hard drives? A. Yes. But what, what are you asking? Q. Well, did, did Richard indicate to you that Larry had done anything to his hard drive? A. Yeah. Richard claimed that there was damage, not necessarily to the hard drive, but to files contained on the hard drive -- Q. Okay. A. -- were tampered with, or something in that effect. Q. And now, he claimed that, you say? A. Yes. Q. Okay. But you had no means of verifying that? A. Well, it was pretty much -- Q. Did you or didn't you have -- A. Yes, we did. We verified that there -- Q. Well, did you make any observation yourself about what had been done to the hard drive? A. I couldn't physically tell you if something was done to the -- there was -- when you say hard drive, there was nothing wrong with the hard drive. We were talking about files -- Q. The contents -- A. -- contains the contents of the -- Q. The contents of the hard drive. A. Right. Q. Did you make any observations yourself as to the contents of that hard drive? A. I looked at the hard drive. I looked at the contents of the hard drive. I could not physically see anything wrong with anything in there. Then again, it's not my hard drive. I'm not familiar with it. I don't know what belongs there, what doesn't belong there. Actually I've only -- I've never actually seen that, what was on those hard drives, so I couldn't -- Q. All right. So -- A. I do remember distinctly what the problem was and what Richard was complaining about. Q. What was the problem and what was -- A. The problem was that Richard could not compile the codes, and it's I believe on that tape, on the first tape, that we even covered that. It's on one of the tapes as evidence. So -- Q. Well, I'm asking about what you observed, not what was on the tapes. A. Right. Okay. But this -- what I'm going to tell you I observed is on the tapes, and Rich did talk about it on the tapes. Q. Well, that's fine, but I'm asking you now what your observation was as to whether that, that could be compiled. Did you observe Mr. Graham trying to compile that program? A. Yes, I did. Q. Do you know what compiling -- A. And they would not compile. Q. Okay. A. Until they did -- they would not compile after several, several attempts, and while on the phone with Larry, they did compile right before our eyes, and they did execute and run fine. Q. Did, did you, did you bring your brother Peter over to meet Richard? A. Yes. Q. And did you observe Peter working on the programs? A. Yes. He went into the code. He was editing the codes. Q. Would, would that code compile then? A. Yes. Q. Before he worked on it? A. Before he worked on it? Q. Before he worked on it? A. Yes. Q. Okay. And, but he made changes to the copyright notice? A. Yes. Q. What other changes did he make? A. That's all I know. That's all he made in my presence. Q. Okay. A. That's all I know. Q. Now, at the time you observed this problem on the hard drive, did you believe that Larry had done something to mess up the program? MR. OSTROWSKI: Objection. No personal knowledge. MR. KITCHEN: Well, he was right there and observed it. MR. OSTROWSKI: He said it's not his competence, he didn't know what was on the hard drive. THE COURT: I just wonder what relevance it is what Mr. Armenia's belief was. MR. KITCHEN: Well, because this is a man whose belief changed over a period of time, Your Honor, and his testimony is, is that these changes in belief were based upon his objective observations, and I want to establish what the observations were and relate it to his belief. THE COURT: Well, the problem I have with that is that he's talking about an end result here which I'm going to have to determine, and I don't think that Mr. Armenia is the one to make that decision. He can give me the input and evidence upon which I can base my decision, but his end opinion is no part of that evidence. MR. KITCHEN: Well, I understand that, Your Honor, but this is I think an important witness and his credibility is very much in issue and -- THE COURT: All right. If you want to bring it out to, so I can evaluate his credibility, then it's relevant, for that purpose only. BY MR. KITCHEN: Q. Well, at the time that you made the observations of what had been done to the file and the difficulties with it, did you, did you believe at the time that, that Larry had messed up the program? A. At the time, yes, I believed -- Q. Okay. A. -- only because -- actually, it was two-fold. I wasn't sure, because I know to when you compile something, I wasn't sure, for one thing, I knew Richard -- Q. Well, that was a yes or no question, pretty much. A. Well, I don't know how -- THE COURT: Well, you didn't say it was. THE WITNESS: -- I can't -- MR. KITCHEN: Well, I -- THE WITNESS: I couldn't -- THE COURT: If you want a yes or no answer, put that instruction in your question. MR. KITCHEN: Well, very well, Your Honor. BY MR. KITCHEN: Q. I, you know -- did you or did you not, yes or no, did you or did you not at the time believe that Larry had messed up the program? A. I was unsure at the time. Q. All right. A. And I was trying to determine that. Q. And did you later come to believe that Larry had messed up the program? A. No. I was later to believe that Larry did not. Q. And when -- A. And thought it was a dead issue at the time. Q. When? A. When it finally compiled, and Larry got him to compile it, and it's on that tape, when he compiled it and it actually ran right before us. It's on one of the tapes there. Richard said, never mind, it's running, and that's when the compiler executed the EXE and it worked. Q. All right. A. So then at that time I thought there was nothing wrong. Q. So once you heard the conversation between Richard Graham and Larry James, which conversation you taped and is located on Plaintiff's Exhibit 16 for that matter in the tape, after you heard that conversation, you -- A. I didn't hear it. I was watching -- Q. Please. Let me finish the question. THE COURT: Wait a minute. Wait for the question, please. BY MR. KITCHEN: Q. After you heard that conversation, you came to the conclusion that Larry James had not done anything to damage the program, is that true, yes or no? A. I didn't, I didn't hear any conversation. Q. Yes or no? A. I can't answer yes or no. Q. You heard that taped conversation right after the conversation was, was done, right? A. No. I watched it compile on the screen. I watched -- Q. Wait a minute. THE COURT: You did not listen to it with Mr. Graham immediately -- THE WITNESS: I was listening -- THE COURT: -- after it had been rewound after the conversation? THE WITNESS: Yeah. But we're, he's not talking about that. He's talking about -- THE COURT: That's what I thought he was talking about. BY MR. KITCHEN: Q. No, no, no. I'm talking about the telephone conversation. A. Okay. Now you're talking, just -- okay. What do you exactly want to know about the conversation on the telephone because that's what I can follow what you're saying. Q. The telephone -- A. Go ahead. Q. You said that you changed your mind after you heard the telephone conversation, correct? A. No. Q. All right. Not correct. A. After I seen with my own eyes -- Q. When -- A. -- the compiling of the EXE file on the screen, on the same computer that Rich claimed was something wrong with it, it wasn't compiling. Q. When did that take place? A. Right while we were taping Larry, we were compiling at the same time. Q. All right. So while the telephone conversation was going on and the, the compiling process was going on, you then observed that it was possible to compile the program, right? A. Richard did successfully compile the program. Q. Is that a yes -- yes or no, please? A. Yes. Richard did successfully -- Q. Yes. And so at that point is when you became firm in your mind that in fact Larry had done nothing to mess up the program, is that true, yes or no? A. Yes. Q. Okay. So at the time that you and Richard came to my office and presented me with the tapes, and you pointed out to me various sections of the Penal Law that might computer tampering or the like, in fact, at the time you believed that Larry James had not done anything to mess up that program, yes or no? A. I did not believe Larry did anything to mess up that program at that time at all. Q. Okay. A. Rich was claiming some other damage. Q. But you didn't -- A. I don't know what that was. Q. Next question. The next question. A. Oh, okay. Q. You didn't, you didn't tell me of your belief at that time, did you? A. Yes, I did. Q. You told me at that time that you believed Larry James had done nothing to mess up the program? A. Yes, I did. Q. Okay. And you told Richard that as well? A. I told both of you that, and I said that it's not an issue, the program compiled, and that it wasn't an issue, but Richard was claiming that other stuff was missing. I'd take it off his drive. Or some other damage was done to his drive that I could not observe myself and that is what I told you, that when -- Rich wasn't just emphasizing the EXE wouldn't compile. Q. What else -- A. But once that was brought up, I said -- Q. What was missing? A. -- well, it did compile, Rich, and -- Q. What was missing? A. And he -- Q. What was missing? A. I don't know. That, I could not, never tell you that, and only Rich could tell you that, if something really was missing. I could not tell you that. Q. Didn't Richard tell you what was missing? A. If he told me what was missing, at the time I really wasn't paying attention to him. Q. Okay. So you don't recall -- A. Because I don't know what was on his drive to begin with. Q. Because you -- it's a simple question. Did you -- you don't recall what he told you was missing? A. I don't recall. He did say there was stuff missing, but I don't recall what the stuff was. Q. Do you recall whether -- A. He rattled on quite a few things. Q. Do you recall whether Richard had a back-up? A. Yes. Q. He did? A. Richard had a back-up, yes. Q. Okay. A. He did do a restore. Q. And when did he do the restore? A. It was the same day we made that taping, I believe. Q. Okay. Did he do it before or after or during the taping? A. Before the taping. Q. Okay. What was the condition of the drive before the restoration? A. Just what Richard told me it was. I mean, I only know what Richard told me at the time. Q. Well, what did he tell you that was the condition before the restoration? A. That it wouldn't compile, the program wouldn't compile. It's missing, either libraries or something, that the program uses or looks for, and he was trying to piece together -- my basic thing was, at first Rich thought there was something wrong -- Q. Well, let me, let me ask you a more pointed question. He restored the older -- well, do you know when he made the back- up? A. No, I don't. Q. Okay. So you don't know how old that back-up was? A. No, I don't. Q. Could have been a week, could have been a month, could have been whomever, right? A. I have no idea. Q. Okay. And do you know whether after the restoration was made that he was using some of the material from the back-up to do the compilation or compile the program during the conversation? Do you know that? A. I really don't know. I really don't know. Q. Okay. Did Richard tell you that the compiling which did occur during the taping of the telephone conversation had to use information that came from the back-up? Is that what he told you? A. I don't recall that, no. Q. Okay. So you don't know whether or not the back-up had anything whatsoever to do with the ability to compile or not compile the program? A. I don't believe it had anything to do with it. Q. And that belief is based on what? A. Belief is based on the fact that Rich didn't really know how to run the compiler at all, and he was basically trying, learning how to run something he was never familiar with. Q. Did you see anything whatsoever that needed to be restored prior to them restoring from the back-up? A. No. But Rich was always trying to do something, and he was just fiddling with everything, so -- Q. He was fiddling at the time? A. Yes. Q. Okay. When did you bring your brother to Richard? A. I don't know the exact date. THE COURT: Approximately? THE WITNESS: Approximately November. BY MR. KITCHEN: Q. Well, can you -- THE COURT: '91? THE WITNESS: '91, yes. BY MR. KITCHEN: Q. Well, can you relate it at all to when these telephone conversations occurred with Larry James, that you taped? A. The telephone conversations. Q. You recall the telephone conversations? A. Oh, yes. But I'm trying to place them where my brother was, prior or where exactly everything happened here. I believe my brother -- well, I don't remember telling my brother we taped Larry, and we had played any tape back for him or anything, so I can only assume that it was before the actual taping. Q. So -- A. It was so close. These things happened so close that, I mean, within a day or two. Q. So your brother Peter, the best of your recollection is that your brother Peter was over at Richard's house working on this situation before you even had the telephone conversation with, with Larry James, that you taped? A. Yes. Q. All right. A. I would assume that's when it was, before that. Q. And how many times did Peter come over to work on this situation? A. Once. Q. Just once? A. Just once. Q. How long was he there? A. He was there for about an hour. Q. And you were there also, correct? A. Yes. Q. And during that time, is that when the back-up was restored to the hard disk? A. No. No. I don't know when Rich backed up. Rich was always backing up and restoring. Q. No, no, no, no. That isn't what I asked. A. What are you asking? Q. I asked, is that when the back-up was restored to the hard disk, when the material from the back-up -- well, let me, let me stop just a second and ask you. How are things backed up on that computer? A. Onto a tape drive. Q. Okay. And it's a tape like a large cassette or cartridge? A. Yes. Q. And restoring would take it off the tape and put it back onto the hard disk? A. Correct. Q. Okay. And you know what those things look like, right? A. Yes. Q. Okay. Was the tape used to restore the hard disk at the time Peter was there? A. The tape was always in the machine and always on the machine, so it was always there. Q. Well, but you -- THE COURT: What tape are you talking about? THE WITNESS: Any tape. THE COURT: A back-up? THE WITNESS: A back-up tape was always in the drive and always -- BY MR. KITCHEN: Q. But you previously testified that you recall Richard going ahead and restoring portions from the back-up back onto the hard drive, didn't you? A. Yes, he did. Q. Okay. And I'm asking when he did that. Did he do that during the taped conversation? Did he do it during, when Peter was there? Did he do it in between Peter and the taped conversation? When did he do that? A. Well, I don't really know when he did it. That's something that was pretty lengthy though. So it just ran and went and when it was done it was done. It could have been through all of those things. I don't know. I don't know -- Q. So you don't know whether he restored it once or 10 times? A. Well, I know he restored it more than once. Q. He restored it more than once? A. Yes. Q. Okay. And, but you weren't there for any of these restorations, or you don't -- A. Some I was, some I wasn't. We talked on the phone, he was doing something. Q. But there were a whole bunch of them? A. Well, he was doing something. I don't know what he was doing. Q. So you don't know whether he was restoring anything to that hard drive or not, restoring anything? A. I don't know if he was restoring, deleting, doing whatever he wanted to do. I have no idea what he was doing. Q. Okay. Not the least idea of what was actually happening with that disk drive? A. Only what I seen go on on the screen itself in my own eyes, I knew what was going on. Q. Well, now, when we restore something from a back-up tape, it says you're doing that, doesn't it? A. But that's what I'm saying. Q. In fact, it's on the -- A. If I, if I see the screen saying restoring, then I know restoring is going on. Q. And sometimes restoring takes a long time, doesn't it? A. Yes. Q. It can take, it can take an hour sometimes on a large hard drive, right? A. Yes. Q. Okay. And during that time there's a message on the screen, isn't there? A. Yes. Q. And it says that it's restoring? A. Yes. Q. And when you're backing up, that can also take some time also, correct? A. Yes. Q. And how big a hard drive are we talking about on this machine? A. I'm not sure what was actually in there. Q. Okay. Don't have any idea? A. No idea. Q. Okay. Could have been something small, like a little 10 or 20 meg hard drive? A. I have no idea. Like I said, I never seen the drive and the actual files on the drive until Rich was pointing stuff out to me, and I still didn't know how big the drive was. I didn't look. I don't know. Q. Just no idea? A. No idea. Q. All right. Okay. No idea how many files would be on that drive either? A. No. No idea. Q. And so you have no idea then how long it would take to back up that hard drive? A. No. Q. Okay. Then, so you never saw it actually back up? A. I never saw Rich actually back up the hard drive. Q. Okay. And you never saw him actually -- THE COURT: Wait a minute. Were you repeating his question? THE WITNESS: Yes. I was repeating his question. THE COURT: That's what I thought. MR. KITCHEN: Oh. Oh, I'm sorry. I thought he was essentially saying yes by restating my question in the affirmative. Okay. THE COURT: You're alive, Mr. Ostrowski? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Recess? MR. OSTROWSKI: I need somewhat more stimulation than I'm receiving at the moment. THE COURT: We'll take a 10 minute recess. Resuscitate Mr. Ostrowski. (Recess taken.) BY MR. KITCHEN: Q. Mr. Armenia, I think just before the break we were asking about -- we may have to stop for the sirens again. THE COURT: It's my tool for silencing the attorneys, so you turn on the sirens outside. BY MR. KITCHEN: Q. You had indicated that you had not, you had never actually observed the, the -- this particular hard disk being restored from the back-up, is that correct? A. No. I said I seen it being restored. Q. You saw it be restored? A. Yes. Q. And you said that you saw it be restored on a number of occasions? A. Yes. Q. Okay. And that was all in or about this particular time? A. Yes. Q. All right. And you're not sure what was being restored? A. No. Not at all. Q. And did you observe it being restored when your brother Peter was over? A. Not that I recall, no. THE COURT: Excuse me? THE WITNESS: Not that I recall, no. BY MR. KITCHEN: Q. Okay. Do you recall it being restored before Peter came over? A. Like I said, I can't tell you exactly when and where it occurred when we were restoring the tape. Q. Okay. A. I can't tell you exactly when this, when something was restored. Q. But regardless of whether it was restored or when it was restored or what was restored, at some point the program compiled? A. Yes. Q. And that was during the conversation with Larry James that was being taped? A. Yes. Q. And approximately when was this time-wise again? I think you said November, but are you sure it was about then? A. It was somewhere around there, November. Q. Some time around November? A. Yes. Q. All right. And how long after Larry James had left Richard Graham did this occur? A. Did what occur? THE COURT: Excuse me? THE WITNESS: I don't know what he's asking. BY MR. KITCHEN: Q. Did the taped conversation occur? A. When did the taped conversation occur? Q. In relation to when Larry had left? THE COURT: When did it occur, period. I don't have any dates on that. Do we know when it occurred? MR. KITCHEN: Well, he indicated just earlier that it was some time in November. So -- THE WITNESS: Well, I don't have -- THE COURT: Oh, no. I'm just wondering. THE WITNESS: I don't have specific dates. THE COURT: It seems to me he said after, after he made some marking on the cassette itself, and I assume that marking would have included a date. THE WITNESS: No. I didn't, I didn't put a date on there. THE COURT: Okay. All right. Some time there were two telephone calls. THE WITNESS: Yes. BY MR. KITCHEN: Q. Well, the, the first telephone conversation, the one between Richard Graham and Larry James, that you taped, how long after Larry had left Richard Graham did that, did that occur, do you recall? A. Not long. Not long. A week. Q. A week? A. Something like that. Q. Okay. Could it have been a couple of days? A. It could have been, yes. Q. Okay. But not generally a longer time? A. Right. Q. Like several weeks or something? A. It didn't seem like a long time at all, no. Q. All right. And your recollection of all this was some time in November? A. Yes. Q. All right. Now, it was during this taped conversation that the program actually compiled, and that's when you changed your mind and believed that Larry had in fact done nothing wrong? A. No. Why don't you just ask me that question so I can answer it. Q. Well, is it during that time, if it was not during that time, when did you believe that Larry in fact had done nothing wrong, stolen nothing? MR. OSTROWSKI: Asked and answered. THE COURT: He may answer it again. THE WITNESS: That came after I left Richard's employment. And it was after, I'd say a month, month and a half, when I came to the -- I remembered this conversation me and Rich had vividly on the phone about giving Larry a dollar a disk, plus all the other chain of events, such as all of them had to do with the conclusion of this, that someone doesn't give someone a dollar a disk or make a contract, a verbal contract with somebody to give him a dollar a disk, if he owns rights to the copyright. It made no sense whatsoever. BY MR. KITCHEN: Q. This was a realization that you put everything together -- A. Right. Q. -- some time in January -- A. Yes. Q. -- or beginning of February? A. January or February. Yes. Q. And then you decided you were going to go over to Larry's and talk to him, right? A. No. I decided that I did want to make apologies to Larry, yes, but not to talk to him or really hear what he had to say. It was my own conclusion. Q. Didn't you testify earlier though that you came to a realization that in fact Larry James had not screwed up the disk when the program was successfully compiled, and that that occurred during the taped conversation with Larry James? A. No, no. Q. That wasn't your earlier testimony? A. No. Q. Okay. THE COURT: That's what I heard, but go ahead. What's the truth? THE WITNESS: It wasn't, because Rich was claiming there was other things done, so as far as the compiling of the program, yes. BY MR. KITCHEN: Q. So, okay. A. You said disk, and you put compiling together, they were two separate issues. Q. All right. So even though that did occur during the taped conversation, you nevertheless still thought that Larry had done some sort of criminal act? A. Only based on Rich's testimony that other things were missing, but as far as the compiling of the -- Q. Well, but whether it was based on -- A. -- EXE -- Q. -- what Richard said or not, the point is that at that point in time, you still believed that Richard had committed some sort of criminal act? A. Richard? Q. Excuse me. That Larry James had committed some sort of criminal act in relation to the computer? A. Based on Richard's testimony, yes. Q. Okay. And based on that then, you gave Richard advice as to what you thought he should do, correct? A. If that was what he believed, yes. I always told Richard, if this is what really happened and this is what you believe, then -- Q. Did you tell him that you didn't really believe it yourself? A. I told him -- well -- Q. Yes or no? A. What was the question exactly? Q. Did you tell him that you really didn't believe it? A. No. It wasn't a question that he asked me or anything. Q. I see. A. But it depends on what you were talking about. Q. So did you -- well, did you at the time actually believe that Larry James was guilty of some criminal act with relation to the computer? THE COURT: And at what time is this? MR. KITCHEN: This was -- THE COURT: In your office? MR. KITCHEN: -- at or about the time of the telephone -- THE COURT: In your office, or what? MR. KITCHEN: No. This was at or about the time of the telephone conversations with Larry James that were taped. THE WITNESS: Based on Richard's -- BY MR. KITCHEN: Q. No. Not based on. A. Well, that's the only reason I can say it. Based on. Q. I didn't ask you for a reason. A. Okay. Q. I did not ask you for a reason. A. Yes. Yes. Q. All right. Okay. So you in fact did believe that he was guilty? A. Yes. Q. All right. And based on that, did you make any contact with the police, yes or no? MR. OSTROWSKI: Objection. Relevance. THE COURT: I don't know the relevance. MR. KITCHEN: Well. Did -- THE COURT: In the back of my mind, I'm just wondering why a third party would make some complaint to the police about something being stole from another person. But go ahead. BY MR. KITCHEN: Q. Well, that's -- in fact, did you make some contact with the police, yes or no? A. I made contact with the police, yes. Q. Yes. Okay. And who did you contact at the Police Department? A. Captain Larry Bayrl at the time. THE COURT: Who? THE WITNESS: Captain Larry Bayrl. THE COURT: Barrow? THE WITNESS: Yes. THE COURT: B-A-R-R-O-W? THE WITNESS: No. B-A-Y -- gee, I'm not even sure how he spells his last name. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. And what did you say to Captain Baryl? A. I didn't ask -- Q. Let me stop and ask -- A. I didn't make a complaint. Q. Wait. A. I was asking about procedures. Q. Please. THE COURT: Wait a minute. Wait a minute. MR. KITCHEN: I'm withdrawing the question. THE COURT: It's your fault. You pushed the button. He started talking. MR. KITCHEN: I'm sorry, Your Honor. THE COURT: Now you tried to stop him. MR. KITCHEN: I'm sorry, Your Honor. We don't have a stop button on this witness, is the unfortunate thing. THE COURT: No. MR. OSTROWSKI: Or the lawyer. MR. KITCHEN: Or the lawyer. THE COURT: That's right. Or the lawyer. Or the Judge. BY MR. KITCHEN: Q. The -- Captain Baryl is with what police agency? A. Buffalo Police Department. Q. All right. Do you know his particular function or role there? A. He was the Captain, yes. Q. Okay. But I mean, do you know if he had a particular assignment? A. What do you mean? Q. Oh, homicide, burglary? A. No. Q. Precinct such and such? A. He was the Captain of the precinct. Q. All right. Were you personally acquainted with him? A. Yes. I knew him as a friend, yes. Q. Okay. THE COURT: You knew him what? THE WITNESS: As a friend. BY MR. KITCHEN: Q. All right. And what did you, what did you tell him when you contacted him? A. I told him about the story of the copyright and all the stuff about this case that -- and I asked him, what would be the proper procedure on how we would go about, you know, pursuing this. Q. All right. And approximately when did you contact him, and if you can't give us a date, can you give us, can you relate it somehow to the other incidents happening in or about this time, that you've talked about earlier? A. No. I really can't tell you when I called him. It was at Richard's house. THE COURT: Not even approximately? THE WITNESS: I was at Richard's house. It was some time in November. THE COURT: Some time when? THE WITNESS: In November. THE COURT: Of '91? THE WITNESS: While I was at Richard's. BY MR. KITCHEN: Q. Do you recall whether or not it was before you came and talked to me with Richard in my office? A. That I'm not sure at all. Q. Okay. THE COURT: Well, while you were in Mr. Kitchen's office, did you say to Mr. Kitchen any of this information that the Captain had given to you? THE WITNESS: No, no. Because -- THE COURT: So then it must be, you saw Mr. Kitchen then prior to talking with the Captain. THE WITNESS: Well, you could assume that, but I don't know if that is so. THE COURT: Well, if you had talked with the Captain and you're telling Mr. Kitchen about the Penal Law, you would have also told him about the procedures. THE WITNESS: Yes, probably. THE COURT: Did you? THE WITNESS: Yeah, but it wasn't -- THE COURT: Did you tell -- THE WITNESS: No, I didn't tell him anything about the conversation with the Captain or anything. THE COURT: All right. BY MR. KITCHEN: Q. Did you tell Richard about the conversation with the Captain? A. Richard was there when I called him. Q. Richard was where when you called him? A. I was in Richard's, you know, Richard's house when I called him. Q. I see, and Richard was, was on the line listening to the conversation? A. No. He was -- THE COURT: Was he listening to your end of the conversation? THE WITNESS: My end of the conversation. BY MR. KITCHEN: Q. All right. Well, did you tell, did you tell Richard what the Captain had said to you? A. Yes. Q. All right. What was your purpose for calling this Captain Baryl? A. Just to find out procedure as to how we would go about, if we were going about it the right way. Q. And after your conversation, did you believe that you were going about things the right way? A. Yeah. Q. Okay. Now, when you say, going about things, we're talking about the criminal prosecution of Larry James for some sort of crime relating to the computer? A. Right. Q. Now, during this discussion about criminal prosecution and that sort of thing, did you ever indicate to Richard, did you remind Richard that he was supposed to give Larry a dollar a disk? A. No. I didn't even, it didn't come back to my recollection, I didn't remember it at that time at all. Had no knowledge of it in my -- Q. Now, you previously testified that you really made a kind of more complete change of mind after you had left Richard, and it occurred in January or February of '92, correct? A. Right. Q. And is that when all of this stuff about the dollar a disk came back to your mind? A. Yes. Actually it was, I could tell you what brought that back to my mind was, a week prior to, approximately a week prior to leaving Rich must have said to me about a hundred times, if not more, Greg, I would never have given him a dollar a disk, and he'd always look at me and say, Greg, I'd never give him a dollar a disk, and all of a sudden this dollar a disk became an issue, and I said, Rich, you know, this is about copyright, what's a dollar a disk got anything to do with this. But he kept persisting and saying this, well over a hundred times, to me. And I just ignored it. It went in one ear and out the other because I was really fed up of hearing this. We couldn't conduct business. It just wasn't -- there was an obsession here with Larry and this case. And so, prior to leaving there, it always stuck with me that he kept emphasizing on this dollar a disk, and it just, something was just funny that I just couldn't put my finger on. And meditating upon that brought, caused, if anyone knows anything about the mind and how the long term and short term memory work, to retrieve something out of your long term memory, it would, something would have to trigger it to retrieve it into your short term memory where thus you can remember it. Well, because Rich said all these, kept saying this same phrase over and over again, I kept pondering on why he was emphasizing on it, and sure enough, that's when the entire conversation was so vivid, came so, back to me so vividly about, prior to, within August it was, I believe it was, that Rich had mentioned to me that he had, and I remember that conversation very vividly, and it was a done deal, and it was like Rich was trying to sell me this deal that he made with Larry, which I disagreed with at the time. And he came right out and said, I asked Rich right out, he was beating around the bush, I said, Rich, did you make a deal with Larry James for a dollar a disk, and he said yes. I said, you made a verbal agreement with Larry James that you're going to give him a dollar a disk. He said yes. I said, Rich, then you don't even have to sell me anymore because if you made this deal with him, I told him, that your verbal contract is just as binding as a, as a written contract, and that it was a done deal, so it's not, you don't even have to sell me about it anymore. And at that point it was never brought up again, anything about a dollar a disk. So -- Q. Now, now, for this conversation in August that occurred in which it was a done deal, was something that somehow left the forefront of your mind during the, what happened in September, October, November of 1991, is that pretty accurate? A. Yeah, very accurate. Q. And it didn't come back to your mind until you put it all together in January of 1992 or thereabouts? A. Yes. Q. And it was stimulated back to your mind because the conversations that you had had during the few weeks before you left Richard's employ, he mentioned as many as a hundred times, I would never give Larry James a dollar a disk, is that pretty accurate? A. Yes. Q. Okay. Going back to the initial conversation in August, why did you believe -- well, let me clarify. Was it your opinion at the time that, that Richard should not be paying a dollar a disk to Larry for this program? A. Yes, it was. Q. Okay. And your belief was that this program was not worth a dollar a disk? A. No. That wasn't my belief at all. Q. What was your belief -- A. Well, I was -- Q. -- with regard to the dollar a disk? A. I was not familiar with publishing at all or anything. This was just my observation of a dollar a disk, when the actual pressing of the disk cost $2.00. This is my, my initial response was -- Q. In other words -- A. -- that the disk cost $2.00, and you're paying Larry a dollar for a program. It seemed like it was a lot of money. Q. It seemed -- A. It just seemed -- Q. -- like the price was too high? A. Price-wise, right. Q. All right. A. But now, being educated in this field -- Q. Well, I'm not asking you about now. I'm asking you about then. A. Oh, okay. Q. Back in August, what you believed at the time. A. Yes. Q. Now, when have you since educated yourself that the program is in fact worth -- well, let me clarify that. Have you a different opinion as to whether or not the retrieval program is worth a dollar a disk? A. Yes. Q. Okay. And is your opinion now that it is? A. Yes, it is. It's a very good deal. Q. And when did you reach that conclusion? A. When I tried publishing my own disk and looking into other retrieval programs. Q. I see. A. To have one written is enormous. I can write from anywhere from $50 to $80,000, depending on who's writing it. Q. $50 to $80,000 to write a retrieval program? A. Yes. I would say. Well, depends who's writing it. Q. I see. And this would be a retrieval program comparable to what you have on your disk, version 1 and 2? A. I imagine any program. Q. And would it be comparable then to your program that you have on disk version 3? A. Yes. Q. You, you in fact had that program written, right? A. Yes. Q. Okay. What did that cost? A. I'm not going to disclose that. That's a business secret. Q. Well, I'll ask the Court to direct. I don't see the basis for this as a business secret. He's bought and paid for it. A. Oh, no. I have not. I don't own that program. Q. Oh, you haven't? A. I don't own that. That is copyrighted by Robo Soft Systems and by the author. I do not, I did not buy copyrights to that program. Q. Okay. So you just have a license -- A. I have a deal with them. I have a license to run it, yes. Q. And what does that license entitle you to do? A. What do you mean, what does it entitle me to do? Put it on my disks, and use it on my disks. Q. Can you put it on as many versions as you want to? A. Yes. Q. And do you have to pay any more to Robo Soft, is it? A. I pay them royalties. Q. I wanted to clarify the name. A. Robo Soft Systems, yes. Q. Robo Soft Systems. A. I pay them royalties, yes. THE COURT: What is it, Logo -- THE WITNESS: Robo Soft Systems. MR. KITCHEN: Okay. COURT RECORDER: How do you spell that? THE WITNESS: Robo, R-O-B-O, S-O-F-T, Systems. BY MR. KITCHEN: Q. You pay them a royalty in addition to a one time amount? A. Once again, I don't want to disclose to you what I pay for my retrieval, based on it's my business secret. Not only that -- THE COURT: Well, just qualitatively, without leaving amount. Do you pay a one shot price for having access to it, and then pay a continuing royalty, without knowing what it is? THE WITNESS: No. I didn't pay a fee to run the program. I'm paying on royalty. THE COURT: No one shot. THE WITNESS: Right. I'm paying on royalties alone. THE COURT: So much for -- THE WITNESS: Right. So much per disk. THE COURT: -- quantity. Yes. BY MR. KITCHEN: Q. So you didn't have to pay anything up front to Robo Soft? A. No. Q. Okay. A. I didn't have to. No. Q. Are you paying as much as a dollar a disk? THE COURT: Don't. He's not going to say that. He wants protection. I see no purpose in bringing it out. Unless you're saying, in the, in the situation is $1.00 a disk out of line. I would allow that. MR. KITCHEN: Well, Judge, the testimony he's offering here is essentially that a dollar a disk is a good deal, a dollar a disk is a bad deal. If this is to have any relevance or credibility, it has to be based upon his qualifications to be able to say that. And his qualifications, apparently based upon the experience of doing that. THE COURT: Well, what is his experience? MR. KITCHEN: His experience is, of course, publishing a -- THE COURT: Just this one deal? MR. KITCHEN: -- publishing a CD Rom. THE COURT: Just this one deal? MR. KITCHEN: Well, I -- THE COURT: I don't know. He gave an opinion and if you want to -- MR. KITCHEN: How many -- THE COURT: -- bring out the basis of his opinion, you may. BY MR. KITCHEN: Q. How many CD Rom retrieval programs have you purchased? A. I can't afford to purchase one of them. Q. Okay. So you, you haven't purchased -- well, you didn't purchase Larry James' CD Rom retrieval program? A. No. I don't own copyrights to Larry James. I did not purchase it. Q. And all you did with Robo Soft is essentially purchase the right to use it? A. Yes. Q. But you indicate that this program had been a custom written program, correct? A. Yes, it has. Q. Okay. So they started from scratch and they wrote you a program completely from nothing, right? MR. OSTROWSKI: Objection to relevance and this is all beyond the scope of redirect. He's trying to make my witness his own expert witness, without having paid him or subpoenaed him. MR. KITCHEN: No. I'm trying to establish what the basis of his -- THE COURT: If you want a contribution, we'll pass the hat, but he's trying to establish the expertise and background of Mr. Armenia, which is allowable. MR. OSTROWSKI: That's beyond, it's beyond the scope. Mr. Armenia has simply testified -- THE COURT: He gave his opinion. MR. OSTROWSKI: -- as to certain contracts that he had. THE COURT: He gave his opinion concerning the propriety, if I can put it that way, from a fiscal point of view, of paying a dollar a disk. I'll allow it. BY MR. KITCHEN: Q. Did Robo Soft write the program completely from scratch for you? A. Yes, they did. Q. Did they indicate to you whether they had written other retrieval programs? A. They have never written a retrieval program. He has never written a retrieval program. Q. Okay. Well, you say they and then you said he. Are we talking about an individual here? A. It's an individual. Q. What is the individual's name? A. Jay. THE COURT: Pardon me? THE WITNESS: It's Jay Hyole. MR. KITCHEN: Jay. THE WITNESS: Hyole, H-Y-O-L-E, I think. BY MR. KITCHEN: Q. Okay. Is he a local person? A. No. Lives in California. Q. How did you make his acquaintance? A. He's an author of a utilities I use for software on my BBS and I made contacts through him and liked his work. Q. Did he indicate to you that, that the cost of one of these retrieval programs would be $50-$80,000? MR. OSTROWSKI: Objection. Hearsay. MR. KITCHEN: He's already testified that -- THE COURT: He may answer. THE WITNESS: No, he hasn't. BY MR. KITCHEN: Q. Okay. A. I haven't asked him for, to buy rights to the program. I haven't even asked him for a price for the program. I know what he tells me he writes, and other contracts that he writes for, and other, when people do buy he tells me other deals that he, that people bought copyrights from him, and they were way over my head. So the question of even buying a copyright never even came up in any of our dealings. Q. Well, your earlier testimony is, you think that a dollar a disk, based on your current knowledge, that the dollar a disk is a good deal, is that correct? A. Yes, it is. Q. All right. And is that at least partly based upon your own experience in obtaining the licensing rights for the use of the Robo Soft program? A. Pardon me? What's the question? Q. Is that conclusion, that a dollar a disk is a good deal, based at least in part upon your experience of obtaining the licensing rights and using the Robo Soft program? A. Can you reword that some way, or be more direct. I don't really know what you're asking me. Q. You said you thought a dollar a disk is a good deal? A. A dollar a disk is a good deal. Q. Is your opinion at least partly based upon your experience in purchasing the rights or contracting for the rights to utilize the Robo Soft program? A. No. It has nothing to do with Robo Soft, a dollar a disk being good. THE COURT: Now, you say this individual wrote this program for you, is that right? THE WITNESS: He wrote it for me, yes. Specifically for my CD Rom. THE COURT: And he is, is he Robo Soft? THE WITNESS: Yes. He -- THE COURT: Is that his company? THE WITNESS: That's his company's name, Robo Soft. THE COURT: All right. Now you have an arrangement with him and his company whereby you as you produce and sell this would pay a certain price or royalty to him. THE WITNESS: Yes. I pay royalties per disk. THE COURT: Does he retain any right to publish and sell that himself, or his company? THE WITNESS: You mean sell the retrieval? The program he wrote? THE COURT: Could he sell the same program? THE WITNESS: Oh, yes. He could. He could. THE COURT: So it's not exclusive with you. THE WITNESS: No, it's not. THE COURT: All right. He wrote it for you though, you say. THE WITNESS: Yes, he did. THE COURT: But still he retained the right to use it even though he wrote it for you. THE WITNESS: Yes. He retains all rights, all rights to sell -- THE COURT: He retains the copyright. THE WITNESS: He retains all the rights to it, right. THE COURT: All right. BY MR. KITCHEN: Q. So he could turn around and market that to any one of a number of other CD Rom publishers? A. Sure. Q. Okay. A. Unless I bought the copyright. Q. All right. On what basis -- how did you arrive at the opinion that a dollar a disk is a good deal? A. Based on the pricing of what it costs to have a program written. Q. Okay. And what does it cost to have a program written? A. A lot of money. Like I said, it can range anywhere from, it's in the tens of thousands of dollars. Q. You said $50-$80,000? A. $50-$80,000, depending on the extent of the work that's being done and I'd imagine -- Q. Did you get quotations? A. No. I have never, never requested -- Q. All right. A. -- to buy a copyright. Q. Okay. I'm just wondering where you, where in particular you received quotes or estimates -- A. Well, I only know by talking -- Q. -- of $50 -- wait a minute, let me finish the question. I wanted to know where in particular you obtained estimates of $50-$80,000 for this work? A. By -- not for this work. I can't tell you what this work is worth. I can't tell you that. I never asked, so I can't tell you that. I can tell you based on what he told me for work he has done prior to writing this. He told me what work he does, what, what programs he has written. THE COURT: When you say you don't know what this is worth, are you saying that you don't know what you'd have to pay for the copyright? THE WITNESS: I never asked. THE COURT: No. I say, is that what you're saying? THE WITNESS: Yes. I never asked for it. BY MR. KITCHEN: Q. Did you give him any input as to what you wanted him to write? A. Yes. Q. What did you, what did you give him? MR. OSTROWSKI: Objection to relevance. THE COURT: Rephrase it. Rephrase the question. MR. OSTROWSKI: We are so far away from this trial that I feel like I am in India. MR. KITCHEN: Well -- MR. OSTROWSKI: I mean, with this question. It's totally irrelevant to the trial. MR. KITCHEN: Well -- THE COURT: Background. And he's given an opinion. It probes the reliability of the opinion. THE WITNESS: I like to say that I don't want to answer what I, my input into any of the retrieval, because it's a business secret, the stuff I put into that retrieval. BY MR. KITCHEN: Q. It's a business secret -- A. Yes. Q. -- what you told the programmer to program for you? A. Yes. I don't want, I don't want my, my stuff in there to become public. Q. Well, let me ask you this. Did the programmer write a program that was in fact the result of specifications that you gave? A. Yes. Q. And among the various things that you gave the programmer, did you also give him copies or examples of programs, retrieval programs that had already been written? A. No. Q. Okay. When did you decide that you wanted to go into the CD Rom publishing business? A. I'd say around February, March. Q. February or March. THE COURT: Of what? THE WITNESS: Of '92. BY MR. KITCHEN: Q. '92. So, you indicated that your first conversation with Larry James after 1991 was in February of 1992, correct? A. Yes. Q. All right. And would that cause you to change your testimony about when you thought you wanted to, or when you decided you wanted to go into the CD Rom publishing business? A. No, because it was all just thoughts and planning, you know. Q. All right. So -- A. I hadn't really made up my mind or, I didn't even know if it was possible if I could do it. Q. In fact then, you never really decided whether or not to go into the CD Rom publishing business until after you talked to Larry James in February of 1992? A. No. I was trying to see if I could learn -- a lot of things had come into being. Q. Like? A. One, I needed a retrieval. Two, I needed, you know, I needed a full thing, a full list of things to come together before I could say, you know, this is going to work. Q. What needed to come together? MR. OSTROWSKI: Objection to relevance. MR. KITCHEN: Well -- THE COURT: Yeah. I'll sustain that objection. BY MR. KITCHEN: Q. You indicated that you were ready to publish your CD Rom before you received the retrieval program from Larry James? A. Yes. Q. How soon were you ready to publish, but for the retrieval program? A. Oh, a day. Q. A day? A. A day. Q. A day, when? What are we talking about? A. What are you exactly asking? Q. I say, how soon or when were you ready to publish your CD Rom program, or your, excuse me, your CD Rom disk, but for the lack of a retrieval program from Larry? A. I don't follow the question. Q. Well, what does it take to put together a CD Rom disk to publish? A. A lot of work. Q. Yes. Okay. But I mean, it takes more than a retrieval program, right? A. Oh, you don't need the retrieval program to put your disk together at all. Q. Ah. And but in fact, each of your disks have retrieval programs? A. They're for accessing. They're not for putting, they have nothing to do with the work I do. Q. Well -- A. They have to do with the end user who uses it. Q. Was it your intention to publish a CD Rom disk without a retrieval program? A. No. Q. Okay. So you at least considered a retrieval program to be a pretty necessary item? A. Without a doubt. Q. All right. And what I'm asking is, Larry was responsible for the retrieval program, but you were responsible for bringing everything else together, correct? A. Right. Q. All right. And you indicated the day before yesterday that you had had everything else ready before Larry came up with the retrieval program? A. No. Larry, Larry was working on the retrieval program for a long time. I didn't get the final version until -- actually the final version wasn't till, we were doing testing right up to the day I, to the hour, within the hour I backed up, two hours that it took me to back up, right within that hour I was actually getting new updates and changes still being made. So Larry was working very close with me right before the pressing, and he wrote the basic retrieval and gave me a beta of it, and then the final version I had, he had made some final changes for me right before the pressing of the disk. Q. Well, wait a minute. Two days ago you were asked what the last ingredient was on this CD Rom or words to that effect, and you essentially said that the last thing you had to wait for was the retrieval system from, from Larry James, was that correct? A. That's correct. Q. All right. So you had everything else pretty much ready, correct? A. Everything was ready. Q. How, how long before Larry came up with the program did you have everything else pretty much ready to go? A. Well, Larry didn't have to come up with the program. Q. No, no, no, no. How -- A. He had to come up with the final non beta version. Q. I'm asking for a quantity of time. THE COURT: How long were you waiting for him to come up with the retrieval program, when you were ready on other matters? THE WITNESS: I really don't know what you mean by how long I'm waiting. THE COURT: Was there any wait? Was your publishing business at all delayed -- THE WITNESS: Oh, no. THE COURT: -- because of waiting for him? THE WITNESS: No. We were right on schedule. We made our scheduled delivery. We were right on time. It was close. It was very close, but we were right on time. BY MR. KITCHEN: Q. Well, let's put it this way. If, if Larry had been able to come up with the retrieval program, let's say right away, within a couple of weeks of after you first talked to about him -- about it with him, in February of 1992, how quickly after then would you have been able to publish? MR. OSTROWSKI: Objection to relevance. THE COURT: He may answer. THE WITNESS: I couldn't have published, I couldn't have published -- are you asking me, could I have published within a few months after talking to Larry? BY MR. KITCHEN: Q. No. I didn't ask you whether it was a few months. I asked you to tell me how long it would have taken you to publish if the retrieval program had been there, all ready to go? A. I couldn't have published. Q. At all? A. I couldn't -- at all. Q. Ever? A. Not until -- THE COURT: Wait a minute. BY MR. KITCHEN: Q. Not until when? THE COURT: Wait a minute. Wait a minute. THE WITNESS: Not until I actually published. THE COURT: As you're sitting there, you have the retrieval program. THE WITNESS: He's saying, do I have -- if I would have had the retrieval program earlier, would I have been able to publish. I said no. THE COURT: Why would you not have? THE WITNESS: Because I was not ready to publish. I had to work on my material. THE COURT: And your other, the other facets of the program, of your CD Rom were not ready to go? THE WITNESS: Right. Not at all. They weren't ready. When they were ready, that's when I published. THE COURT: The two of them came together just about the same time. THE WITNESS: Well, I -- Larry probably could have wrote more faster than I could have actually published. The first publishing of my disk was very hard, okay. It was a lot of work. The first, very first disk is a lot of work. It took me a year, approximately 10 months to get it all together. THE COURT: What financial arrangement did you make with Mr. James for that work? THE WITNESS: Larry was, it was $1,000 for the use of the program, and a dollar a disk, and Larry only requested that I give him 10% down for the $1,000 and that he would be, he understood my financial situation, that, you know, all the money I needed to put into the Rom, and he would, he wouldn't press me for that money. THE COURT: He wouldn't press you for the $1,000? THE WITNESS: Right. THE COURT: All right. But you agreed to pay $1,000 for the program, and then $1.00 per disk. THE WITNESS: Yes, I did. Yes. BY MR. KITCHEN: Q. And that particular program that you got from Larry, that's a copyrighted program? A. Yes. Q. And do you have any interest in the copyright? A. In owning the copyright? Q. Yes. A. Sure. I'd love to own the copyright. Can't afford it. Q. Oh, no, no. I meant, I meant interest in, you know, like, do you have any ownership interest? MR. OSTROWSKI: Asked and answered. THE COURT: He may answer it. THE WITNESS: What exactly do you mean? BY MR. KITCHEN: Q. Well, I don't mean interest, meaning something that you're thinking about you'd like to do. I mean interest, do you have any, do you have any actual involvement or ownership in that copyright? A. No. None at all. Q. So Larry James, similar to Robo Soft, is also able to sell or utilize that program any time to anybody, correct? A. I can't see why not. Q. Okay. Are there other copyrighted programs on, on your version 1 or version 2 disk? A. What do you mean? MR. OSTROWSKI: Objection to relevance. THE COURT: Other what? MR. KITCHEN: Other copyrighted programs that he's published, or that are on the disk, other than the retrieval system. THE COURT: On the CD Rom disk? MR. KITCHEN: That's right. THE COURT: He may answer. THE WITNESS: Any specific type of programs you're looking for? BY MR. KITCHEN: Q. Well, how many programs are on your, your version 1? A. Version 1, about, I'd say close to 6,000. Q. Okay. And did you, did you have to make arrangements to, for copyright or, or -- well, are any of those copyrighted so that you were limited in being able to put them on your disk? A. I don't follow what you're asking. Q. Well -- A. Or what you're even saying. THE COURT: Were any of these 6,000 programs owned by someone else so that you had to get the right or release from that person to use it? THE WITNESS: No. They're all shareware and they're all copyrighted by the authors. THE COURT: They're all shareware. All right. THE WITNESS: They are all, all the shareware is copyrighted. THE COURT: By whom? By whom? MR. KITCHEN: Okay. So you had to -- THE COURT: Wait a minute. By whom? THE WITNESS: The authors of those programs. THE COURT: You had to get permission or -- THE WITNESS: Some do. Some request it. Some, most of them don't. There's a handful that request that you get permission. BY MR. KITCHEN: Q. And those handful you in fact did ask for permission? A. Yes. We asked for permission. Q. And do they require you pay anything? A. Some do. The are some that do we delete from, we don't even put them on our disk, we don't even look at them. We try to make sure that they don't make it on our disk. Q. Okay. So basically, your disk, any of the versions really don't contain programs which require a fee or licensing fee to put on, but for the retrieval program itself? A. Right. Well, to the best of our ability, we try to remove them all, yes. Q. Okay. A. Some, there's a very good chance they can slip through though. Some of them hide. They're little, they're like, they hide them in documents. And some are very tricky. And they, they're just trying to, you know, trick somebody like me who publishes. Q. You mean trick, you mean that they would want to have you publish it, not knowing that there was a copyright notice? A. No, not knowing that it's a copyright notice. They hide, they hide behind shareware and then they say, and they'll put a little clause somewhere, not in an obvious document, like in a vendor doc, but they'll put it in a 360 K document filed buried in somewhere, and there is a clause saying, you know, this can't appear in a CD Rom, and if it does, there's a $2.00 charge per disk. And it's like, I can't see them ever getting anywhere with that in a Court of law. If they, if they really wanted to make this, and they really didn't want their disk on there, they would have put it in a more obvious place for someone to see it, such as me. But -- Q. And then after you've published it on a CD Rom, then they would announce that and claim that they wanted some, some payment, correct? A. Well, no one has, so we have to take it that no one -- Q. All right. A. -- no one slipped by us. Q. So this has never happened to you then? A. No. Q. All right. Did, did the version that you purchased from Larry James, did it have all the functions that you wanted it to have? A. No. Q. What was it lacking? A. Mouse support and the ease of, easy user interface that I really wanted. More menus. Q. You had mentioned, and this was going back to almost the very beginning of your direct testimony, when Mr. Ostrowski was questioning you, that essentially Mr. James had to take out certain features out of his retrieval program which crippled the program. Do you remember testimony along that line? A. No. I didn't say, didn't took anything out. I just said they just weren't in mine. Q. I see. That they lacked these features and -- A. They definitely lacked the features. Q. Well, when you talked to Larry James in February of '92 and told him you wanted a retrieval program, did you tell him what you wanted in it? A. No. I left that, Larry, I left it up to Larry, because I couldn't tell him, I don't want to make the program -- I mean, I could have told him everything I wanted that was in the Night EXE already. Q. So the answer is no, you didn't tell him? A. No, I didn't. Q. All right. You left it up to his judgment? A. Yes, I did. Q. All right. And you didn't tell him then that you wanted mouse support? A. No. Q. Okay. But when the program was produced it never had mouse support? A. Yes. Q. Right. Yes, it did not, right? A. Yes, it did not. Q. Okay. And does your subsequent program from Robo Soft have mouse support? A. Yes, it does. Q. Okay. Are there other features in the Robo Soft version that are, make it superior to Larry James' version? A. Yes, it does. Q. So is it safe to say that you're much happier with the Robo Soft version than you were with the, with Larry James'? A. Oh, without a doubt. Q. Okay. And you also indicated that you believed that paying a dollar a disk and also paying $1,000 per release or version was more than you felt was appropriate? A. Yes. Q. Okay. But that you felt that a dollar a disk was fine, for what Larry did for you? A. Yes. Q. Okay. So basically, it's this $1,000 per version that is the, the problem, the difference between being a good value and a poor value? A. No. That was just something I didn't understand at the -- Q. I see? A. -- at our initial -- it was our lack of communication. Q. Well, then -- A. But still, regardless -- Q. Then you believe that paying a dollar a disk and also paying $1,000 per version is, is in fact a good deal? A. Yes. It is still a good deal, if you're willing to pay it. It may -- I may have been pursuaded -- Q. Well, all right. You've answered the question here, rather than going on. A. Okay. All right. Q. But I mean, you now have an arrangement with Robo Soft where you didn't have to pay this $1,000 up front, correct? A. Correct. Q. And you also, your arrangement with Robo Soft is, you don't have to pay $1,000 for each time you release a new disk, correct? A. Correct. Q. All right. And the Robo Soft program is better, correct? A. Than the version of -- that I was -- on Pier 1 and 2, yes. Q. All right. Do you know whether the version that Larry James did for you is any different from the version that he did for Richard Graham? A. Yes. Q. How do you know that? A. Well, the internal workings of it, when I set it up, and it doesn't -- the internal workings and the -- Q. What do you mean, the internal workings? A. Well, the directories that it reads, the file, the record files that it reads, they're all different. The internal workings are different. Q. How so? A. Just like I stated. What it's looking for and how the program, what it looks for and what it reads. Q. Well, could you tell us what the difference is in terms of the internal workings and how it reads the directories, in the one that Larry did for you, as opposed to the one that Larry did for Richard Graham? A. Night Owl's looks for, Night EXE looks for files in the text directory called DIR's. Q. Okay. A. Okay. And my directory looks for P010, or whatever the numbers are, whatever the numbers are. Q. I see. Now, in P010 there's a listing of all the various files that are on the CD Rom disk, right? A. Yes. Q. And you have those set up as a variety of directories? A. Yes. Q. Okay. And each of those directories has a name beginning with P? A. No. The directories don't begin with P. The directories are just strictly numbers. Q. I see. Well, didn't you, didn't I heard the, the, the letter P pass from your lips just a few minutes ago? A. P is for the name of the text file, where the listings are for that directory. Q. Okay. And is that what the retrieval program looks for when it, when it sets up the screens and tells what's on the CD Rom disk? A. It looks for the text files that begin with P0 and, the P and the numbers. Q. I see. A. Yes. Q. And other than the fact that these -- when you say the P and a number, is that the name of each of the directories? A. No. It had nothing to do with the names of the directories. Q. It doesn't? A. No. Q. Well, what is the -- is the P and the number following it, is that the name of a file? A. Yeah. That's the name of a file. Q. A text file? A. Yes. Q. And the text file contains a listing of a portion of the files on the disk, right? A. Correct. Q. Okay. And it looks for that, that file name, the P with a number after it? A. The retrieval looks for that file, yes. Q. Okay. Mr., the one that Larry did for Richard Graham, the names of these various files, text files, were, was DIR, correct? A. Correct. Q. Is that the, is that the difference? He uses, the one for Richard used DIR-1, DIR-2, et cetera, et cetera, and yours uses P-001, P-002? A. Right. Q. Now, your program could have been set up to look for DIR-1 or DIR-2 just as easily as it could look for P-001 or P-002, isn't that correct? A. Correct. Q. Okay. And do you feel that by changing the name of those text files from DIR-1 to DIR, you know, 2, over to the P-001, P-002 was a significant change? A. Yeah. It was significant. Q. Okay. A. And not only that, he took out the, the headers. Q. What about the headers? A. The headers in the, that Richard claimed that his Night, the Night EXE were a secret, secret to his retrieval. They don't utilize any type of internal, or any headers are required in my DIR's or nothing. Q. Okay. How does your program know how to, to go to P-001 or P-002? A. That you'll have to ask Larry. I don't know. Q. Okay. So you don't really know? A. No. Q. All right. In fact, you don't even really know then the significance of the program looking for a header or not then? I mean, that's not in your -- A. I remember that only from being with Richard. Q. Okay. A. And I believe that was one of the things he emphasized that was, you know, a big deal in this case. Q. Okay. When you approached Larry James to do a program for you, you knew there was going -- you knew there was already a temporary injunction in place, right? A. Yes. Q. And did you know what that injunction prevented Larry from doing? A. From selling his, the Night retrieval as, in the way, in the state it was, yes. Q. Okay. And do you know how much change he would have to make in that program to be able to avoid violating the terms of the injunction? A. I -- MR. OSTROWSKI: Objection. It's beyond his competence. It's a legal question. THE COURT: I'll allow it. THE WITNESS: I have no idea. BY MR. KITCHEN: Q. Did it occur to you at the time that you went to Larry James that if you asked him to produce a program, a retrieval program, that would not violate the injunction, that you were pretty much dependent upon his ability to interpret what did or did not comply with the injunction? MR. OSTROWSKI: Objection to relevance. THE COURT: He may answer. THE WITNESS: What was the question? BY MR. KITCHEN: Q. Did it occur to you when you went to Larry James and asked him to do the program that you had to pretty much rely on Larry's ability to determine whether or not what he wrote for you would or would not comply with the injunction? A. Yes. Larry would be the best one to know what to change or what has to be rewritten, or whatever. THE COURT: Well, the injunction didn't run to you, it ran to him, right? THE WITNESS: Right. So -- BY MR. KITCHEN: Q. Well, didn't you have a little bit of concern at the time that whatever Larry produced for you might end up violating the injunction? A. Only, I only questioned it once, and that was on the header part, and -- Q. When did you question that? A. I questioned it once about, because I didn't know -- Q. No, no. Not because. When? A. I'm telling you. Because -- Q. When? THE COURT: When? THE WITNESS: When is when I talked to Larry about doing it, about writing it. BY MR. KITCHEN: Q. So during your conversation in February 1992? A. Somewhere around there, yes. Q. What did Larry tell you? A. He told me that that header and that pointer has absolutely nothing to do with finding that file, and, which stunned me because I thought this was the secret behind the retrieval, and I said, well, geez, Rich emphasized that this was a big secret and this is how, you know, this program can't be fast or function without it. And I sure didn't want a retrieval with this header in here. And he says, he told me and he assured me absolutely that this program, that he could write a program that has absolutely, has no reference to that header whatsoever. And I said, I says, okay, fine, as long as it -- Q. Okay. But I'm -- see, you seem to be telling me kind of two different things, and let me try and ask something to clarify this. Did Larry tell you that, that the header issue as a means of finding out where a particular file was and that sort of thing, that that was in fact not an important or significant or substantial part of the program that he had written for Richard Graham? A. Yeah. His initial response was, he laughed. Q. Well -- A. And said that it was, had nothing to do with, or had nothing to do with -- I can't give you that technical things, but he just laughed and thought it was very funny because he said it had nothing to do really with the, how the program functions. Q. And did you believe him when he said, told you that? A. Yes. MR. OSTROWSKI: Objection to relevance. THE COURT: Sustained. BY MR. KITCHEN: Q. And did -- well, when he told you that, did that satisfy your concern? MR. OSTROWSKI: Objection to relevance. MR. KITCHEN: Well, Your Honor, he's -- THE COURT: Yes. He may answer that. THE WITNESS: Yes. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. So you believe that even if Larry did use the same technique that Richard had claimed was so very important, a substantial part of what his previous programs had been, that that would be unimportant in terms of violating the injunction? A. You mean the header? Q. Right. A. No. I didn't want the header in there at all. Q. Why? A. Why didn't I want the header in there? Q. Why didn't you? A. Because that's what, it would have been a mimic of, of your program, or whatever the injunction was, and it wasn't a question of that. I don't think Larry had any intent to put it in there. It's not that I asked for it. It was just my, it was my concern. Q. Okay. A. You know, like I said, I didn't have to ask for this. Q. But, but Larry told you, apparently to your satisfaction, that, that the header was totally unimportant and had nothing whatsoever to do with, with Richard's program, correct? A. Yeah. Correct. Q. And did you, did you then tell Larry James, well, okay, then fine, do it with or without header, it doesn't make any difference to me? A. No. I didn't say that at all. Q. What did you, what did you tell him? Did you give him some cautionary -- A. He just said, he just said that that had nothing to do with the program and he doesn't need, and it doesn't need to be in the program to, to function, which was to my shock. What do you want me to say? Q. Well, were you concerned enough to tell him that he should not use the headers regardless? A. That's what I brought up. No, I don't know if I said that, but he said it didn't have to run. He didn't need it. And I thought that was great. So then it was a significant difference to what Richard was claiming in here. Q. Did Larry James describe to you what changes he was going to make so that you could be assured that this program did not violate the injunction? A. If Larry was to tell, describe to me what he was going to change, I wouldn't understand a word he was saying. Q. Okay. Well, you did understand various features though, right? A. Features is one thing, yeah. If he starts talking about what he's going to change or how he's going to rewrite the codes or, you know, I wouldn't have a clue what he's talking about. You'd have to ask Larry, Larry that. Q. Did you give Larry any input as to what you wanted for the appearance of the screens? A. No. I left that all up to Larry. Q. Were you concerned that the appearance of the screens might appear to be in violation of the injunction? A. No. Q. The language on the screens, was this something that you came up with? A. Pardon me? Q. The language on the screens, did you have anything to say about what words appeared on the screens? A. No. Q. So the categories, for example, were something that were arrived at -- A. Oh. The -- oh. Q. -- by Larry James himself? A. No. The subject of my CD Rom are all, all mine. Q. Okay. How about the arrangement in three columns versus, say, two columns, or one column? A. That, that's totally controlled by the retrieval. Q. Well, yes, but I mean, was that Larry's idea? A. It's totally controlled by the retrieval. Q. Excuse me? Is that -- THE COURT: Which was his? MR. KITCHEN: Yeah. THE WITNESS: It's totally controlled by, I have no control over that whatsoever. BY MR. KITCHEN: Q. Is that totally controlled by the retrieval? A. Yes. Q. Okay. Was that your idea or was that Larry's idea? A. That, that was not my idea. That was, that's how the program runs. Q. I see. Now, was that, so that was Larry's idea? A. That was Larry's idea, yes. Q. Okay. How about the, the -- A. Actually it's not an idea, it's a mimic. Q. It's a what? A. It's a mimic. Q. A mimic of what? A. Of BBS, when you look at a BBS that's what you get. Q. Okay. How about the opening phrase, Welcome to the Magic of Pier One. A. That was Larry's phrase that he stuck in there. Q. Okay. You didn't ask him to put that in? A. No. Q. All right. A. I thought it was nice. Q. You thought it was nice? A. Yes. Q. Did, did you recall that in fact this was virtually identical to the language on the opening screen of the program he wrote for Richard Graham? A. No. Q. Okay. Do you know how many people are currently publishing CD Roms with shareware on them? THE COURT: Which are what? MR. KITCHEN: With shareware on them. THE WITNESS: I don't know the number, the total number, no. BY MR. KITCHEN: Q. Are you aware of any other competitors that you have? A. Oh, yes. Q. How many are you aware of? A. A lot. Q. And how many is a lot? A. I told you, I can't tell you the number. THE COURT: But not just one or two? THE WITNESS: No. There's more than a dozen. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Can you tell me, at the time before you entered the business about how many people were doing that, that you were aware of? A. Oh, a lot. All of them. The same ones or more of them now, except for the new ones that come up since I've been publishing. Q. So in January of 1992 there were about the same number of CD Rom publishers that you were aware of, that were publishing shareware disks as there are today? A. Yes. Q. Did you have an opinion back then as to who was the leading shareware disk? A. Yes, I did. Q. And what was your opinion of that? A. That it was Night Owl's. Q. Okay. And do you have an opinion now as to who the number one shareware disk is? A. Yes. Q. Okay. And what is that? A. Mega. Q. And when did Night Owl lose its position of first place, approximately? A. Just when I become more knowledgeable in this business of -- Q. Oh, I see. A. Only, it's only based on sales, not actual quality of the disks. I believe Night Owl's is a, are a better disk than the Mega, but -- Q. Well, okay. Let me be more specific then. Going back a couple of years ago then, just before you started publishing, what do you feel the highest quality disk was? A. To the best of my knowledge it was Night Owl's. Q. Okay. And what do you feel is the highest quality disk now? A. Oh, I feel my disk is the highest quality disk on the market. Q. Okay. Whose, who would you say number two is? A. I would say -- as far as quality? Q. Yes. A. Well, I can't really say. I know there are a lot of people. I'm not really concerned about my competitors. Q. You're not? A. No, I'm not, because I have a very unique disk. I have a very unique product. And I have a very unique disk. Q. So you don't really have any competition? A. Night Owl's is trying to give me competition. That is the only one that I know of that's actually trying to give me competition. Q. Well, when you say, trying to give you competition, you mean they are copying you? A. Well, yes. They did copy me on my last version by 36% but still, my product is very unique. There is no one who's published or ever published as current files or dated files as I have published. This is a fact. So my success is based on solely having a very unique product. Q. So in essence then, you really have no, no competitors. If other people buy other disks, it has, no way affects their tendency to purchase your disk? A. I have com -- I mean, the market is a competitive market, as far as pricing, which are offering, and as that. But as far as the quality of my disk, I don't believe I have any competitors. I'm not worried about anybody. As long as I believe I'm doing and producing to the best of my ability, the best disk possible that I could produce and release, I have, I have no, nothing really to worry about. Q. Well, setting yours aside for a moment as being unique and peerless, do you have an opinion as to those other guys that are competing amongst themselves, including Night Owl, as to who has the better, best quality disk at the current time? A. I'm aware of, there's other disks out there that are semi- current that are like second and third runner-ups or that would fall into that category, but none of them have come close to me where I've actually had to buy their disk and take a look at it. Q. No, no, no. We have already set you aside as being unique and without peer or equal, but looking at those other guys, I'm asking you to evaluate who was at the top of the heap of just those other guys? A. Who's at the top of the heap of those other guys? Q. Yes. MR. OSTROWSKI: Objection to relevance. MR. KITCHEN: Oh, Your Honor -- THE COURT: He may answer. MR. KITCHEN: Yes. THE WITNESS: In what sense, of quality? BY MR. KITCHEN: Q. Quality? A. I would say Night Owl's. Q. Okay. Now, you said that your latest version was copied by Night Owl's to some 36%? A. Correct. Q. And your latest version came out in September, correct? A. Correct. Q. And which version of Night Owl's disk is the one that's copied yours by 36%? A. Night Owl's 10. Q. 10. And when was 10 published? A. October. Q. You -- how long did it take you to put together version 3, get it to the publisher, and begin to send it out to distributors? A. About two months. THE COURT: Let's go back to this October. What year are we talking about? This year? THE WITNESS: Yes. MR. KITCHEN: 1993. THE WITNESS: This year, Your Honor. THE COURT: Since we're still in October, I was a little bemused. BY MR. KITCHEN: Q. I may have asked this before, but I wanted to establish whether or not you knew whether Larry James' version of the retrieval that he produced for you was, had more features than the version he produced for, for Richard Graham? A. Was I aware that it had more features? Q. Yeah. Do you know if it had more features or did more things? A. Yes, it did. Q. Okay. Now, can you recall anything that it did do? A. I can't recall them offhand, no. Q. Okay. Is a retrieval program that has more features more valuable? A. No. I wouldn't say that. Q. No? A. No. It's the interface and the ease of use, there's only so many features you can really put into a retrieval. There's only so many things you can do -- Q. Well, you -- A. -- with it. Q. You wanted your program to have mouse support? A. Yeah. Well, that's a feature that makes it very easy for the end user to use, yes. Q. Okay. Well, would mouse support be a feature that would make the program, say, more valuable? A. Yes. Q. Well, how about being able to automatically unzip files out of the program, would that be a useful feature? A. Yes. Q. And would that make the program more valuable? A. Well, it wouldn't be a retrieval without it really. Q. Okay. A. That's what a retrieval is, it's retrieving the program. Q. Okay. And how about one that allows you to format a floppy while you're in the program, would that be a helpful feature? A. It would be, if you're using floppies, it would be helpful, but I can't imagine too many people, no one's ever asked me to put such a feature in my, my software. Q. Oh, your program doesn't have that feature? A. No. Q. Okay. A. I've never had a demand for it whatsoever. Q. Well, how, how about a feature that would allow you to view GIF files, the graphic files, while you're in the program? A. It would be useful if you had graphic files on your CD Rom. Q. Okay. Do you have graphic files on your CD Rom? A. Yes, I do. Q. Okay. So it would be useful to you, too, then? A. Yes. Q. Okay. And does your program do that? A. Yes, it does. Q. Okay. And would that make your retrieval program more valuable than one that didn't do that? A. No, because it all depends on the publisher. If he's carrying GIF or GIF pictures, or type of pictures on a CD Rom, then it would. Then you'd want your retrieval to be able to view them. Q. Well -- A. Not all publishers carry them. Q. Well, your -- A. So they would have no use for them. It would be not valuable to them, I mean, to their end user, buying their products. Q. GIF, GIF files are on your disk, right? A. Yes. Q. They're on Night Owl, aren't they? A. Yes. Q. They're on Mecca, aren't they? A. I never took a look at Meccas. Q. They're on Phoenix, aren't they? A. Phoenix, I'm not sure about either. I've never taken a look. Never -- I've looked at Phoenix but I've never taken a real look to see exactly what is on there. Like I said, I'm not too concerned about my competitors. Q. But if you had GIF or GIF files, it would be a valuable attribute and feature of the program, would it not? A. Oh, yeah. Q. Okay. A. Yeah. You would want your program, your retrieval program to be able to utilize those files while on the CD Rom. Q. And so it would be more valuable? A. Be more valuable. Q. Yeah. A. As a functional program for your disk, yes. Q. Okay. Now, you previously testified that you paid back Richard Graham some of the money you borrowed from him in October, a couple of payments. THE COURT: This October? MR. KITCHEN: October of 1991, correct? THE WITNESS: Could have been October or November, somewhere around there. THE COURT: Excuse me? THE WITNESS: October, November. THE COURT: '91? THE WITNESS: Yeah. '91, yes. THE COURT: Paid back some? THE WITNESS: Yes. BY MR. KITCHEN: Q. Okay. But it was some time after you received the money? A. Oh, yes. Q. Let me show you Plaintiff's 66. Let me ask you if you've ever seen that before. A. Yes. Q. Okay. Is that a check which you received from Richard Graham? A. Yes, it is. Q. Okay. And was that the money that you borrowed? A. I believe it is. Q. And is the date on that check pretty much the date that you received that money? A. 10/25/91. Q. All right. THE COURT: 10 what? THE WITNESS: 10/25/91. THE COURT: Is that made payable to you? THE WITNESS: Yes, it is. BY MR. KITCHEN: Q. And is that your signature on the back? A. Yes, it is. Q. Okay. So your payments back to Richard Graham would have occurred after October 25, 1991? A. Yes. Q. Okay. And you paid him back by essentially turning over paychecks that you had gotten from your father, right? A. Yes. Q. So you were employed by your father for some period of time after October 25, 1991? A. Yes. Q. Okay. And after your employment with your father, then you began working for Richard Graham? A. Yes. Full time. Q. And I think you had said that -- well, I'm not sure. Did you say that you were employed by your father perhaps a month after borrowing the money before you left and went full time with Richard Graham? A. I didn't say a month after I borrowed the money, no. Q. Okay. How, how long did you work for your father after, after -- A. It was only a few weeks that I actually worked there, period. I'd say three, three weeks. Q. Okay. How much you were -- were you being paid by your father? A. I got a salary of, can't remember, it was $200, it was over $200 and something. Q. Every week? A. Yes. Q. And you got paid weekly? A. Yes. THE COURT: How much longer do you expect your cross examination to go? MR. KITCHEN: Well, I think I'm winding up, Your Honor. Only, well, maybe a half an hour. THE COURT: Might as well wind it up then. MR. KITCHEN: Hopefully. Well, actually, Your Honor, it may take longer because I would like at this point to have Mr. Armenia put his disks in and operate them. That's probably going to take a little bit of time. I'm not -- THE COURT: You're indicating you'd just as soon have your noon recess now. MR. KITCHEN: Well, no. I don't mind going further if the Court would like. THE COURT: Well, we're going to have lunch some time. MR. KITCHEN: Absolutely. THE COURT: And then we'll come back. We can have our lunch now and if so, when, taking into consideration your work with Mr. Armenia, when do you want to come back? MR. KITCHEN: Well, I think in an hour would be fine. I don't know -- MR. OSTROWSKI: Well, I need more than that because I have to check messages and -- THE COURT: The trouble is, if you have more time, you'd go back to your office, you get immersed in other things. If you have less time, you come back here right away. MR. KITCHEN: I think the work -- MR. OSTROWSKI: No. I'd go home and -- I'd go back and make calls and send out checks and then run to lunch. MR. KITCHEN: Your Honor, I think, I think the word expands to fit the time available for Mr. Ostrowski. I know it does for me. MR. OSTROWSKI: So does, so does cross examination. Can I broach the topic, Your Honor, I have a witness out there now who, this is the second day he's been here, and I don't know when Mr. Kitchen is going to end. He's an important witness, but -- THE WITNESS: I hope he ends today. MR. OSTROWSKI: -- I have about 10 questions to ask him. And I was just thinking maybe we could take him out of order and send him on his way so I don't have to keep worrying about his schedule. MR. KITCHEN: I think we're talking about Jeff Anderson. MR. OSTROWSKI: Jeff Anderson. MR. KITCHEN: I wouldn't mind that, Your Honor. It wouldn't bother me. THE COURT: All right. So after lunch we'll do that. MR. KITCHEN: That would be fine, Your Honor. MR. OSTROWSKI: I would like an hour and a half. THE COURT: All right. 1:30. (Lunch recess taken.) THE COURT: Prior to the recess we had talked about interrupting the cross examination of Mr. Armenia to accommodate a witness who was here the other, the last day of trial, and here today, so that we could dispense with his testimony, is that right, Mr. Ostrowski? MR. OSTROWSKI: Yes, Your Honor. His name is Jeff Anderson. He's on the stand. (JEFFREY ROBERT ANDERSON, Defendant's Witness, Sworn) THE COURT: And what is your name? THE WITNESS: Jeffrey Anderson. THE COURT: Is that J-E-F-F or G? THE WITNESS: With a J. THE COURT: And do you use a middle initial? THE WITNESS: R, as in Robert. THE COURT: And is it an S-O or an E-N, S-N or O-N or an E-N? THE WITNESS: S-O-N. S-O-N. THE COURT: Thank you very much. Where do you live? THE WITNESS: 4638 Beachridge Road in Lockport, New York. THE COURT: Thank you. Mr. Ostrowski. DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. Anderson, do you know Richard Graham? A. Yes, I do. Q. Who's in the courtroom? A. Yes. Q. And do you know the Larry James who's in the courtroom? A. Yes, I do. Q. Who did you know first? A. I met Larry about, between 8 and 10 years ago, as a bulletin board user, and through Larry I also met Richard. THE COURT: As what, you knew him what? THE WITNESS: As a user on his bulletin board system. BY MR. OSTROWSKI: Q. Okay. You met Larry first about 10 years ago? A. Yes. Q. 8 to 10. And how long ago did you meet Richard? A. Probably about a year after I met Larry, I would say. Q. And I believe you stated that you met Mr. Graham through Mr. James? A. Yes, that's true. Q. Okay. And over those 10 years -- THE COURT: Excuse me. You met Mr. James through Mr. Graham or vice versa? THE WITNESS: Yes. I met Mr. Graham through Larry. THE COURT: That's what I thought. BY MR. OSTROWSKI: Q. And can you just summarize over that 10 year period, what was your relationship with Larry? A. My relationship with Larry was a user on his bulletin board. I was very new to computers at the time that I started calling his board, and I learned a lot through Larry about the use of a computer, how, how the computer works, the efficient use of the hard drive and how to organize the hard drive in such a way that would be beneficial to the end user as far as speed and performance. Q. Okay. Now, going -- did you ever write a program for a BBS? A. Yes, I did. Q. What language was that program written in? A. That program was written in Quick Basic with Kenny Gardner's GAF CDR Communications Library. Q. And when did you, when did you start working on that? A. Oh, I'd say about four or five years ago. Q. And when did you finish? A. I never actually finished that program. It's an ongoing thing. I'm updating it and making changes. Q. Well, let me ask you this. I, I understand that programs are never finished, but did there come a time when, when it actually worked, in some sense? A. It took about, I would say a year and a half before the program itself was ready for general use. Q. And what did the program do? A. It was a program that created a list of bulletin boards in the area, and it also allowed a user interface so that users on bulletin boards could add to the list if they knew of a board that was not included in the local list. MR. KITCHEN: Your Honor, I'll, I'll object to the line of questioning, unless we're talking about a program that's the subject of this lawsuit. MR. OSTROWSKI: Well, I'm about to come to that. BY MR. OSTROWSKI: Q. Did, did Mr. Graham ever ask you to write a program? A. Yes, he did. Q. And tell us what type of program he asked you to write? A. He described to me a program that would take a data file on a CD Rom disk and display what files were on that disk, based on the file that was on there. There would be a directory file with a list of the files with the descriptions, and there would be a file that, a configuration type of data file, that told my program how to read that list. Q. Okay. And when did he ask you to write that program? A. About -- Q. Approximately? A. Approximately -- THE COURT: Excuse me? THE WITNESS: -- two and a half years ago, maybe. THE COURT: Maybe? THE WITNESS: Yeah. It was -- THE COURT: What's maybe mean? THE WITNESS: I would -- THE COURT: That you don't know? THE WITNESS: I don't remember an exact date. It would have been probably late in 1990. BY MR. OSTROWSKI: Q. And did you in fact work on such a program? A. Yes, I did. Q. And did that work in any way involve the program that you had already written for a BBS? A. No. Q. Okay. And what language is that program written in? A. The Night program that I wrote for Richard was written in Quick Basic. Q. Quick Basic. Did you ever print out the program? A. Well, of course, I printed it out in debugging, you know, the debugging process. It's a lot easier to work on a hard copy than to work from the screen. Q. And do you recall how many pages it was when it was printed out? A. It wasn't that long. It was, I would guess no more than 5 to 10 pages. Q. Okay. THE COURT: Of a printout? THE WITNESS: Excuse -- yes. THE COURT: Okay. BY MR. OSTROWSKI: Q. And did you, did you have some sort of an arrangement with Richard about being paid? A. I never -- I told Richard that I would write the program and I would not charge him for it because as a, as a young student just out of high school just entering college, I was concerned with getting my name out in the public on a CD or something that, an associated program that I wrote with my name, that people would see, and that, I agreed that I would write the program for Richard, to get that kind of recognition that -- Q. Okay. And -- THE COURT: Jeanne, we've got to shift over. (Off the record.) THE COURT: As you were saying, Mr. Ostrowski. BY MR. OSTROWSKI: Q. Believe it or not, I actually remember where we left off. Mr. Anderson, what did Mr. Graham say in response to your discussion that you wanted some advertising for your own name to be on the program? A. He didn't, he didn't object to it. He was, at the time, happy to have somebody that would write the program for him, and I wasn't willing to charge him, so that was also something that he was happy about, because at the time that the company started he didn't really have all that much operating capital as far as I was aware of. Q. Okay. And did you write a program for him? A. Yes, I did. Q. And was there a copyright notice in the program? A. There was a notice on the first screen. Q. What did it say? A. It said, like all my programs, it would have said, Copyright Jeffrey Anderson, all rights reserved, with a written by Jeffrey Anderson on it. Q. Okay. By the way, is -- A. As well as -- Q. I'm sorry. Go ahead. A. As well as who it was written for. In this case, I believe it was CARRS CD Rom retrieval that -- THE COURT: Excuse me? THE WITNESS: I believe it was CARRS CD Rom Publishers at the time. BY MR. OSTROWSKI: Q. So it would have said, written for CARRS? A. I believe so. I don't exactly know, but I'm pretty sure it did. Q. Now, do you have a copy of this program today? A. Excuse me? Q. Do you have a copy of this program? A. No, I don't. Q. Why not? A. I lost it in a bad floppy disk, and I can't recover it. Q. A computer glitch destroyed it? A. Yes. Q. Okay. And did you turn over this program to Mr. Graham? A. Define turn over. Q. Just, did you give it to him. THE COURT: Make it available to him. BY MR. OSTROWSKI: Q. Did you physically -- A. I had -- Q. When you were done with the program -- A. I uploaded the program to his bulletin board for him. Q. Okay. A. Yes. Q. By phone, by phone line? A. Yes. I sent it through the phone. Q. So you were in your home? A. Yes. Q. On your computer. And you sent it through the phone lines to his? A. Yeah. That would be -- Q. Okay. A. -- the way that I'd mostly, sent most of the updates to him. Q. Okay. A. On occasion I did go to his house and drop something off, but that was pretty rare. Q. Okay. And the version that you gave to him had a copyright notice on it? A. Yes, it did. Q. What did your program do? A. Excuse me? Q. What did your program do? What was the purpose of it? A. It -- Q. Basically, what did it do? A. It provided the user with a friendly interface where they could choose a topic that they wanted a program on, such as communications, and it would list all the files that are on the CD Rom that deal with communications. Q. Okay. And at that point, what would the user do in the natural course of events with his CD Rom? A. They would choose, they would choose a file that they wished to look at. They could either drop to a DOS shell or exit right out of the program, and use a knowledge of DOS to copy that file to their hard drive and make, unzip that program or unpack it, if it was an arc format, that they could then run the program on their system. Q. Okay. MR. OSTROWSKI: Your Honor, I'd ask the witness to step down, and I would like to have him do a demonstration on the computer. THE COURT: All right. MR. OSTROWSKI: Come on down here, Mr. Anderson. THE COURT: Demonstration for me? MR. OSTROWSKI: Yes, Your Honor, it won't take long. (Witness steps down.) BY MR. OSTROWSKI: Q. Now, Mr. Anderson, showing you Plaintiff's Exhibit 37, is that a -- what is that? A. That would be a CD Rom disk. Q. Can you give us the company -- THE COURT: Speak into the microphone, please. MR. OSTROWSKI: You can even hold this. Have a seat. Why don't you sit down. BY MR. OSTROWSKI: Q. What's the company name on the top? A. The company name on this CD Rom is C.A.R.R.S. CD Rom Publishers. Q. Are there periods in there, in the name? A. Yeah. C.A.R.R.S. Q. And what's the brand name, or the release number? A. It's PDSI-002. Q. Now, I want to ask you to place that in the CD Rom disk drive. And do you know how to fire up the program? A. Yes. Is this on the CD Rom drive now? Q. I think it's ready to go. Okay. What did you just do? A. I'm typing Night at the DOS prompt, which was the command that we used to bring up the listing program. Q. Okay. What would you do next to execute the program? A. I'd just hit enter and it would come up. Q. Okay. Now, did you -- what was the first thing you saw when you fired up the program? A. The first thing you would have saw was the copyright notice. Q. Now, is there a way to get back to that in any way, perhaps just -- A. I could -- Q. Can you get back to that first screen and freeze it? Okay. Could you just read what that says, for the record? THE COURT: Copyright, misspelled, (C), Night Owl's Computer Service, written by Richard graham, small G. BY MR. OSTROWSKI: Q. Okay. Can you just go back into the program, unfreeze the screen. Okay. Now, does this look familiar to you? A. Yes, it does. Q. And why so? A. Because I wrote it. Q. Okay. Can you just do a demonstration of how your program works, say, take a category and show, show what we can do. A. In my earlier testimony I used communications, so I'll continue with that. If I choose option 1 here, communications, it will bring up a list of all the communications files and the location of those files on the CD Rom. In this case \001A is where I could find the file, such as 11B0707.ZIP which is a file originally named DTP11B.ZIP. Whatever else would have been on that, that description. Q. Okay. And if you wanted to do anything further, what, what are your options at this point? A. At this point we have the escape option, which would take you back to the other menu where you could choose a different subject, such as games. THE COURT: How would you pull one of these files? THE WITNESS: If I wanted to pull one of these files, such as an easy one to remember, AA.ZIP. BY MR. OSTROWSKI: Q. What did you just do? A. I'm pressing, I just pressed the home key and that dropped me to a DOS prompt. Q. Okay. A. And I could say copy\001A\. Q. Now, slow down a bit. You're doing a copy type command, and what makes you want to do a copy type command? Is that in the instructions or is that from your own knowledge? A. That would be from my own knowledge. That's what I would do. Q. Okay. A. Didn't sit here and read what it is that this says. Q. Okay. So can -- sorry to interrupt, but continue. Unless you wanted to say something else. A. I'm going to put it in this case in the C:\ directory. Q. Now, you, you copied a file from what to what? A. I copied a file now from the CD Rom in the directory that was listed in the, in the listing, and I copied that to the root directory of the hard drive. That's bad practice to copy things into the root, but I didn't think to create a directory beforehand. Q. Okay. And what would you naturally do next to try to get a program? A. In this case I made a directory now so that I don't have to unzip a million files into the root. I would type PK UNZIP, and the file name, AA.ZIP, and in this case I'm going to send it to temp directory. Q. Now, before you do that, is, is your instruction done there except for execute? Or just, are you about to press execute there? A. Right. Q. Or do you still -- okay. That instruction that you did, is that from your own personal knowledge? A. Yes. Q. There's no, is there -- there's no where on that screen that tells you how to do that, if you don't know how to do it? A. I'm not sure offhand what's on there. Q. Well, on top of the screen is basically a list of files that are on the hard drive? A. These are the files that are on the hard drive of this particular computer. Q. Okay. A. The ones labelled DIR are directories underneath the root, and those that are just EXE's and system files. Q. Okay. What would you do next to execute, or are you unzipping now? A. I would unzip that program. It created two files. And one of them is a document file. I can tell that by the .DOC extension and the other one I'm not sure what it is. I would have expected an EXE file in here, but -- Q. Okay. And how -- are you ready to execute a program? A. This was, unfortunately this was a bad example. There is no executable file in the particular -- Q. Okay. But if -- A. -- program I chose. Q. If there was, what would you do, type the name of the -- A. If there was an AA.EXE, I would just be able to type AA and it would run that program. Q. Okay. So at this point you're ready to execute, you type in an execute command and press enter? A. Right. Q. And then some program would appear on the screen and you could -- A. Correct. Q. -- run the program. Okay. Now, most of what you've -- these various steps you've taken, are you basically in the DOS part of the computer? A. Yes. Q. Okay. How do you, can you get back to the file, the file menu or -- A. By typing exit, it will return you back. Q. Back to, this is like a sub-directory, and -- A. This is continuing, this is returning us back to -- THE COURT: This is files under communications. THE WITNESS: Correct. BY MR. OSTROWSKI: Q. What is the significance of this number here, 001 -- 001A at the top? A. If I want to find one of these files and I want to put it on my hard drive so that I can use it, I have to know where it is on the CD Rom. The 001A is the directory underneath the CD Rom's root that I would look to find those files. Q. Did you actually type this 001 at some point when you were unzipping and -- A. Yeah. There was -- I typed CD\001A. Q. Okay. A. Or, copy from CD -- there's many ways to do it. Q. If this had said, XXYY, would you have typed XXYY in that step? A. Yes. That would be correct. Q. How about HHH*, would you have typed HHH* at the subsequent unzipping? A. That could be, anything that has a directory. If there's an AAA* or if there's an AAAA directory, I could then change that to AAAA. As long as these files are in it, I'll be able to get at the files that I'm looking for. Q. Okay. Could you get out to the main menu screen by, what do you do, press escape? A. Press escape. Q. Could you freeze that? A. Okay. Q. Okay. Now, from -- you've operated the program for 5 or 10 minutes. Is this your, the program that you wrote for Richard Graham? A. It seems to be. It is the program I wrote, yes. But this copyright notice is not what I put in the program. Q. Okay. And -- okay. Let me shift gears for a second. When -- now, when you -- when's the first time you've seen this CD Rom disk? A. The first time I physically saw this, this disk would have been the other day when I saw it at the Flea Market. Q. Okay. And so Mr. Graham never showed you this? A. I never actually saw the disk once it was cut, no. Q. Did there ever come a time when Mr. Graham gave you back a copy of your program? A. Yes. Q. Okay. And what were the circumstances of that? You could step back up to the, take a seat. Thank you. Did he give you back a copy of your program? A. Yes, he did. Q. And what -- why? What were the circumstances? A. I had agreed to add a couple routines for him, basically to do those features that I showed in DOS. He had asked me if I could write a routine that would do those features for the user instead of the user having to type all those in by themselves. And I -- Q. And -- okay. A. I told, I had told Richard I don't have a copy of the code. Q. Okay. And he gave you back a copy? A. Yes, he did. Q. And was there a copyright notice on it? A. What he gave me back was exactly what I gave him, so it had my copyright notice. It did not have that copyright by Night Owl's Computer Service on it. Q. What was your reaction to seeing the copyright notice by Richard Graham? A. I was -- THE COURT: Today? BY MR. OSTROWSKI: Q. The other day when you first saw it? A. I was actually quite upset because I had done this all, I had done all this. I hadn't, you know, received anything for it. I was under the impression that my name was on the software as the writer. Q. Being distributed to consumers and buyers? A. Correct. Q. Have you ever signed any document which transfers ownership of your program? A. No, I didn't. Q. To anybody? A. No. Q. Were you ever approached to, approached about signing any such document? A. Richard had asked me at one time to sign a document, but at the time my car was not running correctly and I wasn't about to drive my car all the way out to Jamestown in the condition it was in, practically ready to fall apart at any given time. So -- Q. So as of today you are the owner of the program? A. As far as I know. Q. Okay. What's your current -- you said you were at the Flea Market at -- Larry has a stand there? A. Correct. Q. What kind of a stand does he have there? A. He sells computers, fixes and repairs computers and -- Q. Okay. And what are you -- what's your current situation at the, at Larry's computer store? A. I, I basically agreed to help him out on weekends when, you know -- Q. Okay. Are you being compensated? A. Yes. I'm being compensated. Q. And how much would you receive on a weekend? A. I receive $40 on a weekend and that's -- Q. Okay. How long have you been working there? A. Three weeks, maybe four weeks. Q. Okay. Did you ever speak to -- now, you testified at a hearing in this case in December '91? A. Correct. Q. So you've been familiar with this lawsuit for quite some time? A. Correct. Q. Did you ever speak to Mr. Graham about, about the lawsuit? A. We had spoken a few times on the telephone. Q. Okay. Did Mr. Graham make any statements about Mr. James, with respect to this lawsuit? A. He had made comments to me that Larry was trying to steal his software. Q. Did he use any other words, other than steal? A. I'm trying to remember. That was so long ago. I really haven't talked to Richard that much since. Q. Did he use the word thief. THE COURT: What? MR. KITCHEN: Objection. THE COURT: Use the -- BY MR. OSTROWSKI: Q. Did he use the word thief? MR. KITCHEN: Objection. He says he doesn't remember what was said. THE COURT: He may -- MR. KITCHEN: Now, the attorney is trying to put words into his mouth. THE COURT: He may answer. THE WITNESS: The exact word thief, I would not -- THE COURT: So your answer -- THE WITNESS: I can't clearly say he said, yes, Larry is a thief. THE COURT: Your answer is, to the best of your recollection, no. THE WITNESS: To my best, to the best of my recollection I wouldn't be able to honestly answer that question. THE COURT: You don't remember? THE WITNESS: I don't really remember. THE COURT: All right. THE WITNESS: I do remember, you know, he told me many times that Larry came to work for him and he stole the code and that's what I heard from Richard. BY MR. OSTROWSKI: Q. Did he, did Mr. -- did you ever hear Mr. Graham speak such words in the presence of a third person, besides you? In other words, there were more than two people there. If you recall. A. Possibly my brother, but then again, sometimes my brother went with me if I went over to Richard's house or something, so yeah, that could possibly be, but again, I couldn't really say yes or no on that one. Q. Are you familiar with Richard's habits with respect to making back-ups on his computer? A. Yes, I am. Well -- Q. You saw him make back-ups? A. No. But as far as back-ups goes, Richard always had PC back-up disks, as long as I had known him, before the CD Rom thing, he would have -- Q. Do you know how often he -- A. -- cabinets full of CD -- or, not CD Roms, Central Point back-up disks that were -- THE COURT: Central Point back-up disks. THE WITNESS: It's a software -- THE COURT: Is that what you -- excuse me, is that what you -- THE WITNESS: I believe that was the software package he was using. THE COURT: Wait a minute. You used that term. I'm trying to -- THE WITNESS: PC back-up. THE COURT: Is that what you said, Central Point back-up disks? THE WITNESS: Yes. THE COURT: Is that a word of, phrase of art? THE WITNESS: Central Point is a publishing company. They write PC back-up. THE COURT: Oh, I see. I see. THE WITNESS: I can't guarantee it was that particular software. I just used that as, because that's what I use. But he did have back-up disks for just about anything that he needed. BY MR. OSTROWSKI: Q. Do you know from your own knowledge how often he would do back-ups? A. No, I don't. Q. Okay. The program he gave back to you, can you tell from simply looking at it where it came from as far as Mr. Graham was concerned, whether it came from a hard drive or a back-up or -- A. Well, I remember he told me he had to get a copy of it from his back-up, so he had to restore it. MR. OSTROWSKI: No further questions. CROSS EXAMINATION BY MR. KITCHEN: Q. Mr. Anderson, you said the first time you saw that copyright notice on the program you wrote was just a few weeks ago. THE COURT: A couple days ago, he said. MR. KITCHEN: A couple of days ago? THE WITNESS: A few days ago, actually, yes. BY MR. KITCHEN: Q. And the person who showed you that copyright notice was who? A. Was Larry James. THE COURT: Was who? THE WITNESS: Larry James. BY MR. KITCHEN: Q. And where did he get that from? A. Excuse me? Q. Where did he get it from? A. It was on the CD Rom disk that is inserted in that machine right there. Q. This Plaintiff's Exhibit 37? A. Correct. Q. Do you know if it was the same one, the one with the sticker on it, the pink sticker that says Plaintiff's Exhibit 37? A. It did have a, it did have a Plaintiff's Exhibit sticker on it. Q. It did? A. Yes. Q. Okay. You don't know whether it was number 37? A. I never paid attention to the number on it. Q. Okay. But you do recognize the pink sticker? A. But I do recognize the pink sticker, yes. Q. Do you own a CD Rom yourself? A. No, I don't. Q. Do you own a computer? A. Yes, I do. Q. Do you do computing now? A. Yes, I do. Q. What were you doing, let me see, 22 months ago, December 1991, when you appeared in Court here before? What was your occupation at that time? A. At that time I was basically as I am right now a student. Q. Where are you a student? A. Excuse me? Q. Where are you a student? A. I am at the Niagara Community College in Sanborn, and I will be transferring to Fredonia State. Q. Taking what? A. Computer science. Q. You study programming then? A. Correct. Q. You study programming, any particular programming languages? A. As a college student I'm required to learn several. Q. Is one of those programming languages you've had to learn C? A. I am in the process of learning that language right now. Q. How long have you been studying C? A. Since September. Q. Okay. So it's just been the past month or so? A. Correct. Q. Okay. So would you say that you're a programmer in the C language yet? Would you call yourself a programmer in C? A. I have not reached that stage where I would actually consider myself able to write a full program in C, no. Q. Okay. Do you still do programming? A. Yes, I do. Q. Do you still do programming in Quick Basic? A. Yes. Q. Okay. Now, you said that you had never seen this screen, this copyright notice on your program before, just a couple of days ago, correct? A. Correct. Q. Okay. What about the documents that were shown to you 22 months ago, when you were here in this courtroom sitting in the same chair? A. Well, you showed me a hard copy of the program, but I mean, I didn't sit there and read it. Q. Well, did you -- A. You showed me an -- Q. Didn't you identify that program as yours? A. Yes, I did. Q. Okay. So you looked over it enough and established that it was, that it was yours? A. Correct. Q. And you, and you testified under oath that it was, right? A. Correct. Q. Okay. Are you saying that now you didn't even look at the copyright notice? A. I had not looked at the copyright notice when I saw that program. Q. What did you look at in that program that you could have said that it was yours? A. I looked at the basic structure of how the opening screen was created. I looked at the basic structure on how the looping was created, and I looked at -- Q. Well, wasn't that the copyright notice though, right smack dab -- MR. OSTROWSKI: Your Honor, I object to, the witness is being impeached, and there's no document. Where is this document? I'd ask -- THE COURT: Well, he doesn't need a document to impeach him. MR. OSTROWSKI: Well -- THE COURT: Go ahead. BY MR. KITCHEN: Q. That copyright notice was, was plain as day right there in that, in that document, wasn't it? A. I do not know that. Q. Okay. A. I do not remember. MR. KITCHEN: Does the Court have the original of Exhibit, Plaintiff's Exhibit number 9? THE COURT: Why would I have it? MR. KITCHEN: Well, because it was an Exhibit at that previous proceeding, and so I'm assuming that the Court would still have those documents in its possession. THE COURT: I don't know. See if Mr. Gentner is in there. MR. KITCHEN: I have a copy of Plaintiff's 9, so I'm not, if I could have permission to use that, that would be -- THE COURT: I received Plaintiff's Exhibit 1 through 12 at that point. MR. KITCHEN: Yes, sir. I'll show, I'll show -- THE COURT: Wait a minute. We'll see if we can find the original. MR. KITCHEN: Okay. I'll show a copy of 9 here to Mr. Ostrowski and, and I only know it's a copy of 9 because it's actually a photocopy with the Plaintiff's 9 sticker on the front. THE COURT: See if he's downstairs or someplace. MR. OSTROWSKI: I haven't made this request in a while -- THE COURT: What, Mr. Ostrowski? MR. OSTROWSKI: Is the original transcript available for my brief inspection? THE COURT: Of course. MR. KITCHEN: And my next available number, Your Honor? THE COURT: 67. (Plaintiff's Exhibit 9 marked for identification.) MR. KITCHEN: Okay. We've put an Exhibit, we've marked as Plaintiff's Exhibit 67 a photocopy of a, of a previous Exhibit, the photocopy of which shows that it had a Plaintiff's Exhibit 9 sticker on it, and I'll show this to the witness. THE WITNESS: When I was presented with this -- MR. KITCHEN: Oh, excuse me. There's no question yet. BY MR. KITCHEN: Q. Okay. Take a look at the second or third page there. Is the copyright notice there? A. Correct. Q. Okay. And that copyright notice is what you just saw on the screen down here today when we, when we did Plaintiff's 37, that disk, correct? A. Correct. Q. And it was the same thing, the notice that you saw a couple of days ago at Larry James' flea market, right? A. Correct. Q. Okay. And in fact, does this refresh your recollection that you saw this 22 months ago in December of 1991? A. Yes, I did see it. Q. Okay. So if you were upset a few days ago, you had forgotten that you had seen it before? A. 22 months ago I did not look at the copyright notice. Q. Now, you started off by mentioning another program that you had written for BBS's? A. Correct. Q. Is that what's commonly called a door program? A. Correct. Q. Okay. What is a door program? A. It's a, a door is a program that, external from the BBS, will allow the sysop to actually run another program and receive user interaction at the same time, but it's not part of the bulletin board itself. It has to be run external of the bulletin board. Q. Did you put a copyright notice on that program? A. Yes, I did. Q. And did you publish that program on Mr. Graham's shareware disk? A. It may very well be on that disk. I -- Q. You don't know whether it was ever put on Mr. Graham's disk? A. I don't know for sure. I believe he said it would be put on, but as far as myself knowing for sure that it was, I do not know. Q. Well, have you put it on other shareware disks? Is that why there's some uncertainty about this? A. I have not requested it be put on other CD Rom disks, no. Q. Okay. Now, is the shareware program, did you offer it to be used by other people under certain terms? A. The terms of use on that program was that if you liked it and you wished to send a donation to the author, that $20, I believe $20 donation would get you a registered version, and the registered version would give you the ability to take my bulletin board out as the first bulletin board on the list. Q. And were there in fact registered users? A. Yes, there were. Q. About how many? A. I received about five or six registered users. Q. Okay. A. On that. Q. And do you know whether those registered users or any of them saw your program and got it through Mr. Graham's CD Rom disk? A. Do -- I do not know. Most of them were local users. Q. Okay. A. That registered. Q. So you, you don't really know whether it was Mr. Graham's disk they saw it on, or not? A. No, I don't. Q. Okay. And wasn't that part of the, wasn't that part of your understanding with Mr. Graham, that he was going to put your, your door, your BBS door program, on his CD Rom disk? A. No. That had nothing to do with the, the agreement on the, that had nothing to do with the agreement on writing the Night.EXE program. Q. Well, was there any discussion as to whether or not he was going to put it on your disk -- put it on his disk? A. There was a discussion and he said he would put it on. Basically I said thank you. But as far as -- Q. You said, you basically answered, thank you? A. Well, yeah. Well, in common courtesy, I said, why, thank you very much. Q. In other words, it was, it was a plus for you that he put it on his CD Rom disk that he was going to distribute commercially, right? A. Yeah. It would be advantageous to myself to -- Q. Okay. Now, at some point or another, did you, did you tell Richard that as far as you were concerned, the program was his. He could do with it whatever he wanted to? A. I told him that the, that I gave him the program as, as recognition for myself. I was hoping it would go on a disk and people would run Night.EXE and they would see my name associated with something, and hopefully maybe come up and say, hey, we got a job that maybe you might be interested in doing. Q. So this was a condition of your letting him use it? A. Correct. Q. And you specified this was the condition, that he, that he put your name on there so that you could be contacted to do other programming? A. Correct. It was a -- Q. And what kind of notice was he supposed to put on there for you? A. I had put the notice in the program. It was on that opening screen. It had said, copyright by Jeffrey Anderson. Q. And that was a -- THE COURT: Copyright by you, or written by you, or both? THE WITNESS: It said both. BY MR. KITCHEN: Q. Okay. And that was your completed version of the program? A. Correct. Q. Okay. And when did you turn over the completed version of the program to him? A. Some time, I don't exactly know when. It was when I was completed with it, I had given it to Richard to put on a CD Rom. Q. You don't remember when that was though? A. No, I don't. Q. Okay. Now, when you were demonstrating the program earlier, you pulled up one of the categories, communication, and then you hit the home key, and what did the thing do when you hit the home key? A. It dropped to a DOS shell. Q. I see. THE COURT: It what? THE WITNESS: It dropped to a DOS shell where I could then use DOS without actually exiting the program. BY MR. KITCHEN: Q. Is there any particular reason that you selected the home key as the key for that particular function? A. I don't believe that particular function was in the program when I gave it to him. Q. But you said that the program was completed and ready to go when you gave it to him, correct? A. Yes, I did. Q. Well, then, what key did your version use to -- and let me stop before I ask that question. Is that, that hitting the home key and having it go to DOS, is that acquainted with the term we, we call shelling out? A. Yes. Q. Okay. We've heard that before -- A. Right. Q. -- today, so we're trying to keep things together. Now, what, what key did you use to shell out to DOS? A. My program did not have that feature. Q. Your program didn't? A. Yes. Q. But you say your program was complete? A. My program was complete to the specifications that Richard gave me. Q. Oh. He didn't want it to shell out to DOS? A. That is, he did not add that as something that he specifically at the time wanted. At the time he had asked me for a program that would list the files that were on the data base. Q. So he -- A. And that is what I provided. Q. So he didn't really care whether or not the, the thing shelled out to DOS, when you did the program? A. No. Q. Okay. Do you know when he changed his mind, if he did? A. He never -- Q. Never said anything -- A. -- informed me of anything. Q. Never said anything about it? A. No. Q. Okay. If Mr. Graham had wanted that particular feature, that's something you could have added? A. Of course. Yes. Q. You had the capability of accessing those various different keys, functions keys, and things like this, to be able to make it do what it wanted to do, what you, whatever they wanted you to do, right? A. Whatever I wanted to have it do, I could have done. Q. Okay. A. I have -- Q. Let me, let me show you Plaintiff's Exhibit 30, page 188. THE COURT: Excuse me? 188? MR. KITCHEN: 188. BY MR. KITCHEN: Q. Okay. Take a look at, on page 188, at line 19. You were asked, and was there a way that they could simply go to DOS so they could unzip the program they wanted to look at. And your answer was, leave the program. And the next question was, and did your program have a key that you could just hit one key and bingo, you'd be out to DOS so that you could do that. And do you remember your answer there? A. I said yes. The function that I had said was leave the program, and then, if you hit return it would have left the program. Q. And it would drop you to DOS? A. Yes. Q. Okay. And then I asked the question, how about use of the F-10 key? A. Correct. Q. And you, you -- what was your answer there? A. I did not have any knowledge of that. Q. You didn't? A. I knew nothing about the F-10 key. Q. Well, did you have knowledge of any key to, to drop to DOS? A. Excuse me? Q. You had actually, what, programmed the home key to do that? A. I didn't program any key to do that. Q. You didn't? Oh, you said that you didn't earlier. Yes. And you said that that was not anything that Mr. Graham was interested in? A. Correct. Q. Okay. A. He laid out for me -- Q. Well, wait a minute. A. -- very specific -- Q. Wait for a question. Then you were asked on line 9, excuse me, line 5 on page 189, all right, but didn't Richard himself essentially add the F-10 key feature to your program. What was your answer? A. Yes, he did. Q. Okay. What did he add? It actually wasn't the F-10 key, it was the home key, right? A. Whichever he added, I believe the home key. Q. Okay. And, and that he put on this particular PDSI-002, right? A. Correct. Q. Okay. So that's something that he added, essentially? A. Correct. Q. Now, you notice in your previous answer at line 3, you said that you didn't really have the knowledge to be able to do that, correct? A. Yes. Q. Okay. Was that true when you testified that way in December of 1991? A. Yes, it was. I might not have had the knowledge, but I had a stack of books that I can refer to to teach myself how to do these, as I did many times have to refer to those books when writing this particular program for Richard Graham. Q. Okay. So in fact then, you did have the knowledge, except the knowledge wasn't in your head, it was in the books? A. Correct. Q. Okay. And that's the only reason you didn't add the, the function, that particular function, right? A. I didn't add it because it was not asked to be added. Q. Okay. But your, your testimony back in December of '91 though, gives the answer that the reason you didn't write this at that time was that you didn't have the knowledge to do it, isn't that correct? That was your testimony back then, wasn't it? A. I did not have the knowledge to do it in my head. Q. That was your -- A. But had I been asked to do it, I could have easily gone into one of my books and showed myself how to do it, and then implemented that function into the program. Q. That isn't what you said last, that December though, did you? A. No. That is not what I said in December. Q. In December of '91 you volunteered in fact that you simply did not have the knowledge to do it, correct? A. Correct. Q. Okay. Were there any other features that Mr. Graham wanted? A. Yes. And -- Q. What features did he want? A. The ability to PK unzip the files as user interface, and that came -- but that came afterwards. Q. Now, did you have the knowledge to do that? A. Yes. And I had added that. Q. You did? A. But not in time for the release of that particular disk. When I had given him that -- well, I never actually gave it to him. When I called him up to inform him, this was when he had given me another copy of the code, and asked me once again to make a change to it. I had prepared the change for him. I put the PK zip routines in it, and when I went to present them to him, he had told me that he didn't need them anymore because he had gotten Larry to make the changes for him. So in essence he decided he didn't need my changes. Q. Okay. Well, was there any time earlier on when you said that you simply didn't know how to put in the automatic PK unzip? A. No, I didn't. Q. Okay. Well, why didn't you put them in before? A. I put in exactly what I was asked to put in. I was given a description of a program, namely Folio. He had told me what was in this program that he was paying so much for, and he would like a program that he didn't have to pay that kind of money for. He described to me what the folio package had, and he had asked me if I could write something similar. Q. But you, you did testify that this is one of the features that, that he did want, the ability to automatically unzip, correct? A. That was in later versions, he approached me about an unzip feature. Q. Okay. Now, was there any -- did -- do you remember when he approached you to add additional features? A. It would have been about the same time that Larry came in to this situation, or about a week before. Q. Was there anything that would have prevented you from providing these features when Mr. Graham wanted them? MR. OSTROWSKI: Objection. It's beyond the scope. THE COURT: Pardon me? MR. OSTROWSKI: It's beyond the scope of cross examination. THE COURT: No. He may answer. MR. OSTROWSKI: He's my witness, he's not Mr. Kitchen's. THE COURT: He may answer. THE WITNESS: I had those, I had prepared those changes, and I had informed Richard that I had prepared those changes, and he had told me that he did not need them anymore because Larry had done the same thing. BY MR. KITCHEN: Q. Well, from the time that he asked you to prepare the changes, how long did it take you to prepare the changes? A. About a week and a half. Q. Did you tell him when he asked you that you'd have these in a week and a half? A. I didn't tell him that they would be a week and a half. I did not say a specific time it would take me to write it. Q. Did you give him any indication as to when -- A. I told him I -- I told him that I was starting school and that I was working and that I would do this project in my free time, and I -- Q. Where were you working? A. Excuse me? Q. Where were you working? A. Offhand I couldn't tell you. I would have to know where, what time frame we were talking about. Q. Okay. THE COURT: In that time frame when this happened. THE WITNESS: Once again, I would need to know dates. THE COURT: You don't remember when this happened. THE WITNESS: Exact dates that -- THE COURT: You don't remember when he asked you this and when you did the work. THE WITNESS: Correct. I don't remember dates. And I have had many jobs. BY MR. KITCHEN: Q. Well, oh, okay. All right. You don't know whether you would have been working full time or part time or anything? A. I would have been working part time. Q. Okay. A. And going to full time student status. Q. Would that have made it a little more, if not difficult, at least unpredictable as to when you would have the time to, to improve the program? A. No. I, I told Richard that at the time I would write -- Q. No. Listen to my question, please. I think it's a yes or no question. Would the fact that you were not only starting school, but also working in some sort of part time job, would that have been a factor which would have impeded or at least had some effect on how long it would have taken you to prepare these changes to the program? MR. OSTROWSKI: Objection to relevance. THE COURT: He may answer. THE WITNESS: Of course it would have some kind of effect on how long I could do it in. BY MR. KITCHEN: Q. Okay. And the -- A. It was -- Q. -- reason that you asked him that, or the reason that you told Richard that, is so that Richard would have not expected these changes overnight, correct? A. That is correct. Q. You wanted Richard to know that it might take a little time because you had other things on your mind, right? A. Correct. Q. Were you really available to kind of take on a full time or long term programming job for Richard, given the fact that you had the part time job and the school? A. I was not expecting it to be a full time job. Q. All right. And, and you said the school was where? A. It's in Sanborn. Q. Sanborn. Okay. Where were you living at the time? A. In Pendleton. Q. Okay. So, well, coming into Richard's in Buffalo was a bit of a trek? A. Yes, it was. Q. Okay. A. That's why most of the conversation was done over the phone. Q. Okay. THE COURT: So is this something that you would have, actually have had to come into Buffalo to deliver to him? I've heard about all these delivery systems by telephone and so forth. THE WITNESS: No. In fact, very few times did I actually go to Richard's house to deliver anything. Most of the time I uploaded it to his bulletin board or he could have downloaded it from mine. BY MR. KITCHEN: Q. Okay. Did you ever tell Richard that, look, you just, you just could not finish the program. If anything more was going to be done, Richard would be expected to finish it himself. Did you ever tell him that? A. No, I didn't. Q. Okay. Showing you Exhibit 30, again, and this time we're on page 197, starting at the top, the question put to you, is it now, based on your own knowledge of programming and that sort of thing, since you were unable to carry on further in this thing, was it possible, as far as you knew, for anybody well acquainted with programming, to sit down and accomplish these same ideas and put them into the program. Do you recognize, or do you recall what you answered? A. Yes. It was possible. Q. In fact, didn't you say that yes, it was, and I know, I gave Richard the source code, and as you mentioned, Richard did modify it a little bit and added like the F-10 key. There's, yeah, in fact I fully expected that he would do something with it because I just could not finish it. Do you remember saying that? A. Yes, I do. Q. Was that truthful when you said that? A. Yes, it was. It was, at the time that I -- Q. That's, that's my question and that's the answer. Thank you. And after that the next question on line 10, it was not really a question, it was really, okay, and then you went on and said something further. Do you recall what you said? A. I said, I couldn't meet his deadlines. Q. All right. And that was truthful at the time you said that, too, right? A. Yes, it was. Q. If I could ask you to step down again to the computer where you were before, and maybe we could just start again. (Witness steps down.) BY MR. KITCHEN: Q. Why don't you crank up the program. You hit Night and enter. We have the copyright screen, which stays on the screen for only about a second or two? A. Correct. Q. Okay. And now we're up to the first screen with the list of categories, right? A. Yes. Q. Now, is this the product of your program? A. Yes, it is. Q. Okay. So what we're looking at, these list of numbers and the names next to them, and the, and all that sort of thing are things that you programmed yourself? A. The numbers and the list would have come out of a data file. Q. Okay. So you didn't program those? A. I wrote the interface that would display the data file in this format. Q. I see. Then who wrote the, who wrote the numbers and the names? A. The numbers and the names must be compiled, written by the person who compiles the disk. Q. Who would that have been? A. That would have been Richard Graham. Q. Okay. All right. Now, let's pick number one there, is this what you've done in the past. All right. Now we're faced with kind of the second screen, so to speak, with the list of actual files themselves, and who would have written that? A. That was actually written by, it was keyed into the system by Richard Graham, but as I looked at the text, and even through Richard's comments, this had come out of a book from Microsoft, or whichever book he used. This is a standard list procedure that could be used from just about any program. Q. So he copied this material and I see down in the, the first one on the list, 11B0707.ZIP and then a number and then a date, and then it says, three file originally named something or other. That's, that's something that he copied out of a book? A. No. The interface that is displaying this file is something that was copied out of a book. He had shown me the book he was using. Q. Okay. So the interface then is part -- when you say the interface you're talking about something that was part of the program you wrote? A. Correct. Q. Okay. And that came out of a book that Richard gave you that was apparently a Microsoft book? A. No, he did not give it to me. Q. Oh, I'm sorry. Well, you said that, you said Richard found it in the book? A. I saw it in a book that he had had at his house. Q. Oh, I see. It was Richard's book. He gave you the book, you looked it up and found it? A. No. I saw the book at his house. He never gave me the book. Q. Oh, well, I understand that, but I mean, you -- well, it was Richard's book and Richard let you use the book? A. No. I was just looking at it. Q. I see. A. I was at his house one day. I was just looking at it. Q. Okay. And you found the, the interface routine, and you put it into your Quick Basic program? A. I didn't put it into the program, no. Richard put that in. Q. Oh, okay. He did it. All right. Now, when -- go ahead and hit the home key, which is -- well -- A. Yeah. Q. Go ahead and hit the home key, and when you do that, we see a page of text, correct? A. Correct. Q. What is this text for? A. It appears to be explaining to whoever was looking at the program how to unzip a file. Q. Okay. Is this text part of the program? A. Excuse me? Q. Is this text part of, you know, running this retrieval program? A. I would imagine this is -- Q. Oh, don't imagine. A. -- a text file. Q. Don't imagine if you don't know. A. Well, I could probably find out real quick. Q. Don't, don't want you to do something -- A. It would be part of the file, whether it was internal in the program or if it was a file being displayed. Q. I see. A. As a text file. It could be either. Q. Now, did you write this? A. I did not write that, no. Q. Who wrote this? A. This would have -- I don't know. I don't know who wrote this. Q. Okay. A. It could have been Richard. Q. Could have been Richard. You don't know anyone else who was writing stuff that had to do with this retrieval program, did you? A. Not this particular version, no. Q. No. Okay. Isn't, isn't this text tell you what you have to do next if you want to unzip something? A. Correct. Q. Okay. Are those the instructions that you followed when you were demonstrating earlier how to unzip something? A. No, not exactly. Q. You were following your own -- A. My own knowledge. Q. Okay. Just because you're acquainted with DOS, right? A. Correct. Q. When somebody's through unzipping something there, how do they get back to the program? A. They would type exit. Q. Okay. Why don't you do that and see if it works. Okay. And we're back to that blue screen with the list of files, right? A. Correct. Q. Now, this whole function, from the, from the moment that you press home and you went over to that text thing and it explained to you how to do some stuff, and then you could have done some stuff, but we didn't. Instead you typed exit and it went back. That, that whole function was part of the, was part of the retrieval program, right? A. Correct. Q. And that was, but that wasn't anything you put into the retrieval program? A. Correct. Q. Okay. So apparently Richard or somebody else did it, right? A. This is correct. Q. Okay. That's okay. You can resume the stand. (Witness resumes stand.) BY MR. KITCHEN: Q. Now, you said that Richard had asked you to actually sign a formal document that would transfer the program, right? A. Yes. Q. How did he ask you? Did he call you up or what? A. He must have called me because he was living in Jamestown at the time, and I -- Q. Okay? A. -- don't, didn't have his number. Q. But you remember there was a telephone conversation involved? A. There was a telephone conversation. Q. And, and you -- and did he kind of tell you what he, what you, what he wanted you to do? A. Correct, yes. Q. All right. And what did you tell him? A. I told him that I was having car troubles and that I would try to get up there but that I didn't make it. Q. All right. And did he -- he told you what he wanted you to sign basically, in general terms? A. In very general terms, yes. Q. And, and you didn't have any objection to that, did you? A. No. Q. And you told him you didn't have any objection? A. Correct. Q. In fact, didn't, at the time during the conversation, didn't you really tell him, look, Richard, it's your program. That's the end of it? A. Correct. Q. Okay. MR. KITCHEN: No further questions. I'll offer Plaintiff's 67, Your Honor. REDIRECT EXAMINATION BY MR. OSTROWSKI: Q. Showing you Plaintiff's -- THE COURT: What about this 67? MR. OSTROWSKI: Your Honor, I'd ask you to forebear in ruling on that, pending the redirect. THE COURT: Why? MR. OSTROWSKI: Because I -- THE COURT: You want to voir dire on it? MR. OSTROWSKI: Yeah. I could do it at the same time as my -- THE COURT: Do a voir dire and we'll deal with this question of receiving or not receiving it. VOIR DIRE EXAMINATION BY MR. OSTROWSKI: Q. Now, Mr. Anderson, I'm showing you Plaintiff's -- THE COURT: Is this the voir dire? MR. OSTROWSKI: Yes, Your Honor. BY MR. OSTROWSKI: Q. Showing you Plaintiff's Exhibit 67, could you flip through that until you come to the copyright notice? A. Okay. Q. And what page is that on? A. That would be on page 3. Q. They're not numbered though? A. Right. Q. Are they? A. They're not numbered. Q. Okay. THE COURT: Third sheet? MR. OSTROWSKI: Yes, Your Honor. BY MR. OSTROWSKI: Q. Going back to the cover sheet, do you recall being shown this at the preliminary hearing in December '91? A. Yes. The cover sheet. Q. Okay. Were you shown the, the page 3? A. No, I wasn't. Q. Do you recall the questions that Mr. Kitchen asked you back at that hearing about this Exhibit? A. Mr. Kitchen had presented me with this and asked me if I recognized it. I believe I said that it was a CD Rom program and he corrected me and actually informed me, no, this is the one that you wrote. I had not flipped through the pages like he originally assumed that I had. I had simply taken a look at this and said, oh, yes, this is my particular program, the one that I wrote. Q. Do you recall whether or not Mr. Kitchen brought your attention to sheet 3 at that time? A. No. Mr. Kitchen did not show me the copyright notice in the courtroom. Q. Okay. MR. OSTROWSKI: Your Honor, with that testimony and, I'd ask the Court to take judicial notice of the question and answer on page 184, which indicates that attention was not brought by Mr. Kitchen to sheet 3, and I would ask that it not be received in evidence. MR. KITCHEN: Well, Your Honor, I think that what Mr. Ostrowski has just done is perhaps appropriate in the nature of redirect, but it's not really appropriate in the nature of challenging the admissibility of this document. For example, it is already established beyond doubt that this particular witness previously saw at least part of, or the top sheet of, Plaintiff's 9, and the only reason that this particular Exhibit 67 is not in evidence right now is because we right now do not have the original of Plaintiff's 9. And normally, Your Honor, I would have, I would submit that I could -- THE COURT: Excuse me. What has happened, have we found Mr. Gentner or not? LAW CLERK: I spoke to Mr. Gentner and he said he doesn't have number 9 from the preliminary hearing. THE COURT: Do you have them? LAW CLERK: I'll check the file. MR. OSTROWSKI: I'll stipulate that it's a copy of the Exhibit that was introduced at the -- THE COURT: A true copy of it. MR. OSTROWSKI: Yes. But I don't -- THE COURT: All right. Well, then -- MR. OSTROWSKI: I don't stipulate it into evidence, Your Honor. THE COURT: All right. Well, then, I -- the offer then would be, I will sustain the objection at this point, but you may continue your direct examination which would include further examination concerning the Exhibit, Mr. Kitchen. MR. OSTROWSKI: It's not being received into evidence, Your Honor? THE COURT: Not yet, because I go along with your position that he only was shown the front page, and that's what the text indicates to me as I've looked at it, but that doesn't preclude Mr. Kitchen from at this point using the Exhibit which is a true copy of what was seen earlier, and establishing some basis for its being received. MR. KITCHEN: Well, whether or not this particular defendant -- or, excuse me, this particular witness, saw the third page of Exhibit 9 or not in December 1991, the fact is is that Exhibit 9 was admitted into evidence and if this is a true copy, and we can't locate the original of number 9, then I would submit, Your Honor, that at least this is admissible as essentially a substitute for or duplicate of -- THE COURT: Well, it was not -- MR. KITCHEN: -- Plaintiff's 9. THE COURT: -- objected to at that point. You came to the juncture of offering in evidence Plaintiff's Exhibits 1 through 12 and my remembrance of what I just looked at in the text is that they were received. But your position now is that having been received for the purpose of that hearing that it must be received now. MR. KITCHEN: Well, at least in terms of, I would say yes, Your Honor, because it is admissible as being a duplicate of the document which was in evidence. THE COURT: I know, but having been admitted for that purpose, is it automatically in evidence now? MR. KITCHEN: Excuse me, Your Honor, but as a matter of fact, it is in evidence in this trial. THE COURT: As what Exhibit number? MR. OSTROWSKI: I disagree. THE COURT: As what Exhibit number? MR. KITCHEN: As number 9. Number 9 is in evidence in this trial, Your Honor. There was some, a few days ago -- THE COURT: Number 9, I have a rather long description of it, PDSI-002, quote, menu, unquote, sheets of typed columns from menu and from particular categories, page 3 from, quote, Night.EXE, unquote. Printout is copyrighted in Plaintiff, and then I have something about Anderson's (screen dump) and then again I have P.3 has copyright notice. And that was received in evidence. MR. OSTROWSKI: Where is it? MR. KITCHEN: Yes. THE COURT: So where is -- MR. KITCHEN: It's in evidence in this trial. THE COURT: Where is Plaintiff's 9? MR. KITCHEN: Well -- THE COURT: On this trial. MR. KITCHEN: Well, indeed, that's a question we're trying to answer, Your Honor. THE COURT: Well, it was received in evidence. Now, the documents weren't hidden away someplace as having come from the earlier hearing, were they? MR. KITCHEN: Well, no. Your Honor, maybe I should take a few minutes and try to find the original of 9. I located a photocopy of 9, went quickly looking through and see if there was a, the original of 9, with the original sticker on it. I couldn't, I couldn't locate it, so I dragged out this photocopy. I didn't think there was a problem because if we were at least in agreement, as Mr. Ostrowski has already stipulated that essentially the one is a duplicate of the other. THE COURT: That this is a true copy of 9. MR. KITCHEN: Right. MR. OSTROWSKI: I'll stipulate to that. I'd -- THE COURT: So 9 -- what? MR. OSTROWSKI: I had forgotten that the document was in evidence since that was September. THE COURT: Sure. So 9 is in evidence. MR. OSTROWSKI: I guess it's a moot point. I would ask the Court, however, to take judicial notice of the fact that Mr. Kitchen did not inquire about page 3. In fact, he only inquired about page -- THE COURT: Why would I take judicial notice of that? I've read it, but that isn't taking judicial notice of it. MR. OSTROWSKI: That's the, that's the grab bag for when you can't think of the proper category, Your Honor. THE COURT: Yeah. Well, it's in evidence. MR. KITCHEN: Okay. Well, if it's in evidence, then it's in. Fine. Thank you. BY MR. OSTROWSKI: Q. Now, Mr. Kitchen was asking you about a program that you stated at the prior hearing you couldn't finish? A. Correct. Q. And which, which program was that? A. The, the program that he was referring to was the -- well, I wanted to hold this up, but this has been changed, and my name was taken off it, so the program that he was referring to was the original one that I wrote. Q. Okay. MR. KITCHEN: I hesitate to interrupt, Your Honor, but it so happens that upon a further look through one of the other files I have indeed found the original, one and only, Plaintiff's Exhibit 9. I would, rather than kind of redo things, I'll just -- if -- but I would ask counsel to verify that as far as he's concerned this looks like the same thing. And so that what we're talking about as 67 maybe we can use the real 9 and -- MR. OSTROWSKI: I've already stipulated that it's a copy -- MR. KITCHEN: All right. MR. OSTROWSKI: -- of what was at the hearing. THE COURT: Go ahead. BY MR. OSTROWSKI: Q. Now, the, the program, the first program that you wrote for Mr. Graham, where did you get the ideas from for that program? A. Mr. Graham had asked me to write the program. He had told me what it was he was looking for in the program. And I took those ideas and wrote the program based on what he had asked me to write. Q. I mean, as far as the -- did you write some source code in Quick Basic? A. Yes. Q. Did you get, where did you get the ideas for the actual source code? Did you make that up? A. My own Q. Okay. And when you gave the -- when you uploaded that version to Mr. Graham, what did your program do? A. My program, basically you chose a number, the numbers were 1 through 38, so that it would be room for the prompts, and zero to quit, and if you chose one of those numbers it would display the appropriate text file in the text directory, which would display the files and descriptions that were on that disk. Q. Now, you saw the, the screen called Communications -- A. Correct. Q. -- after that category was selected? A. Correct. Q. Now, how would you describe the general category of the document that you see on the screen which -- THE COURT: That was on Plaintiff 37 as I remember it. MR. OSTROWSKI: Yes, Your Honor. It lists a bunch of communications -- THE COURT: I saw it, yeah. MR. OSTROWSKI: -- programs. THE WITNESS: Right. BY MR. OSTROWSKI: Q. How would you -- what kind of thing is that in the computer world? A. That's just a simple text file, that's all it is. Q. It's a text file. Now, is a text file similar to a word processing file? A. Correct. Yes. Q. Is it something that some person types information into on a keyboard? A. Correct. Q. Is a text file a program? A. No, it's not. Q. Does it do any work in the computer? A. No, it doesn't. Q. Is it something that is designed to be seen by a user? A. Yes. Q. And convey information? A. Yes. Q. Is that true of the opening screen as well, the list of 38 or so categories? A. Correct. That's the data file. It wouldn't be something that the user would see. It's a text file that the program uses to read in a configuration, so to speak, that will tell the computer what each one of those numbers should be. Q. Is it fair to say that the -- well, that opening menu is not from one text file, is that correct? A. Excuse -- Q. Is that opening menu from some particular file? A. Yes. Q. Okay. And what kind of file is that? A. It's a straight ASCI sequential file. It's -- THE COURT: It's a what file? THE WITNESS: It's a straight ASCI, it's a character set. It's a sequential file. It has the number, the description, and the number and the description of the file in it. BY MR. OSTROWSKI: Q. Is that a -- A. I think there is a third file. I don't offhand remember what it is. Q. Is that a, is that file a program or a text file? A. No. That would be a text file. Q. Okay. Do you, do you recall how Mr. Graham described this program that you wrote? What did he call it? THE COURT: You mean after the event? BY MR. OSTROWSKI: Q. After he had had a chance to look at it? A. He had called it a CD Rom engine. THE COURT: He called it what? BY MR. OSTROWSKI: Q. He called it an engine? THE COURT: What did he call it? THE WITNESS: A CD Rom engine. I believe that was the terminology he used when referring to that program. BY MR. OSTROWSKI: Q. Did he call it a retrieval? A. No. This was not a retrieval. Q. Have you signed over ownership of your program to any human being? A. No, I haven't. MR. OSTROWSKI: No further questions. RECROSS EXAMINATION BY MR. KITCHEN: Q. Now, these text files are not part of the program at all then? A. No, they're not. Q. So your program would work fine, even if these text files, these data files were not present, correct? A. Not the data file. The data file -- Q. Well, wait. There's a data file and then there's a text file. We have two different things? A. Basically the data file is the text files. Q. And the text file is a data file? A. Correct. Q. Okay. So when we talk about text or data files, at least in this case, we're talking about pretty much the same thing? A. Correct. Q. All right. If we take away the text or data files, the program will still run? A. It will give you an error that it can't find the files, but these files are not part of the program itself. Q. Ah, okay. Well, then, what about the header of this, the text file, the header being like, well, showing that's on the screen right now, it says communications, and then underneath it says, location of file 001A. That's, that's just text, right? A. Correct. Q. So that isn't an integral part of the program? A. Not in that particular program, it isn't. Q. And that is not essential to make the program run? A. No. Q. Okay. So we can change the wording of that line, location of files 001A on that text file there, and it won't have any, won't have any effect on the operation of your program, is that what you're saying, yes or no? A. The program that I wrote -- Q. Is that what you're saying, yes or no? A. Yes. Q. Okay. How, how does the program you wrote then know what, what directory the, it's in? A. The program that I originally presented to Richard for that disk did not have anything that utilized that particular part of the header. Q. Oh. A. It was discussed that that header could be used in the future in unzip routines to locate the directory where the unzip would look for the file. Q. So in that case then, if that header was utilized in the future, it would have been something that Richard Graham or somebody else would have had to add to the program? A. Or myself. Q. Okay. But in your case you didn't? A. I did not put anything in the software that utilized that header. Q. Because you stopped working on the program? A. Correct. Q. Okay. Now, what you wrote then is, and I think you said the term that Richard used was CD Rom engine, right? A. I believe that's the term he was using. Q. Okay. So you never regarded the program you wrote as a real CD Rom retrieval program? A. Correct. Q. Okay. Showing you again Plaintiff's 30, page 170, down there on line 19, you were asked, what kind of a program did you write for him. What answer did you give? A. I told him I wrote a CD Rom retrieval program. Q. Okay. Was that, was that then not truthful at the time that you testified to that? A. That was just the terminology I was using. Q. The answer is no, it was not truthful then? A. No, that is not the answer. Q. Okay. Then that was truthful at that time? A. That is correct. Q. All right. MR. KITCHEN: No further questions. MR. OSTROWSKI: Can I just ask one question, Your Honor? THE COURT: As long as it springs out of Mr. Kitchen's latest examination. MR. OSTROWSKI: Yes, Your Honor. REDIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. Anderson, I know you can't see me, but why did you use the word retrieval program at the preliminary hearing? A. Because I had not remembered the word that Richard had used in discussing the, the terminology. That was something that was, it came into my memory after the trial, that I remembered that he had called it an engine. The word retrieval in the previous testimony was for lack of a better word basically. MR. OSTROWSKI: No further questions. THE COURT: Thank you. You can step down. (Witness excused.) MR. OSTROWSKI: Shall we proceed with our next witness, Your Honor? THE COURT: Or resume on the old one. MR. OSTROWSKI: Yes. THE COURT: Now, you had left off after you elicited from him that he was working for his father and got $200 a week and turned that over to Mr. Graham. MR. KITCHEN: Okay. (GREGORY J. ARMENIA, Defendant's Witness, Previously Sworn.) CONTINUED CROSS EXAMINATION BY MR. KITCHEN: Q. Now, it was during the time that you were working for Richard that you were somehow privy to the amount of money coming in to Night Owl CD Rom Publishers, is that correct? A. Can you rephrase that question? Q. When you were working for Richard, at any time were you aware of what money he was making? A. No. I was aware of what was being sold. Q. The answer is no? A. No. Q. Okay. You were at some time then aware of the, the actual number of disks being shipped? A. I had a good idea, yes. Q. Okay. How did you acquire that good idea? A. Just from being there. Q. Okay. I mean, you saw packages go out the door -- A. Yes. Q. -- or what? A. Yes. Q. Okay. A. That and retail sales. Q. You weren't actually involved with the shipping itself or -- A. Yes, I was. Q. What did you do? A. I mainly handled the retail shipping. Q. Retail shipping. Pretty much one at a time? A. One and two disk orders. Q. Okay. Retail shipping would be, that would be pretty much to individuals? A. Yes. Q. And these individuals would be pretty much users, people who had a computer and wanted a disk to, to use? A. Yes. Q. Okay. And they were going out, they were not being sent out for resale then at that -- A. No. Q. Okay. And, and this was what time of year? A. November, December. THE COURT: Excuse me? THE WITNESS: November, December. BY MR. KITCHEN: Q. Okay. Any, any possibility some of these might have been Christmas gifts? A. Oh, I have no idea. No one ever mentioned to me they were buying them for Christmas, if that's what you want to know. Q. I see. Well, you've been around computers for a number of years, right? A. Yes. Q. Anybody ever get you a computer program for Christmas? A. No. Q. No? A. No. Q. Did you ever buy anything, anybody a computer program, or something like that for a Christmas gift? A. No. Q. No? A. In fact, I was selling my own disks and no one ever bought my gifts for a Christmas present. Q. No one has ever bought your disks -- A. No one ever mentioned to me that they were buying it as a Christmas present. Q. You don't know whether they were buying it for a gift or not? A. No, no, I don't. Q. Okay. And during that time, you said that the retail ones you were handling, the retail alone, amounted to $1,500 to $2,000 worth a day? A. On the average, yes. Q. On the average? A. Yes. Q. Sometimes higher? A. Sometimes higher, sometimes a little lower. Q. Okay. A. $1,000. Q. $1,000 maybe up to a high of what? A. $2,500. Q. $2,500? A. That could have been even more but the only one, the highest one I'm aware of is $2,500. Q. All right. And those retail ones were selling at what, what was the standard retail price that they were actually being sold for? A. That varied. Q. Oh. A. Some paid $159, some paid $129. Q. Actually, I recall -- THE COURT: Wait a minute now. This is the price paid to Mr. Graham? THE WITNESS: Yeah. What do you mean, can you ask that one more time? THE COURT: Well, you gave this price, and I'm just wondering, I've been made to understand, and would think it true myself that a price that Mr. Graham would pay, charge someone who was buying a bunch of them at wholesale would be a lot lower than what he would charge somebody buying one or two at retail. THE WITNESS: Oh, yeah. There was a big difference in price. THE COURT: What are you answering, which one are you answering? THE WITNESS: Retail. A retail. BY MR. KITCHEN: Q. Okay. Well, now, rather than a dollar figure, since actually you didn't see the money so much as you saw the disks, right? A. Well, I didn't see the money in the realm of cash. I seen the money get transact -- I transact the money through the credit card machine. Q. I see. So is the amount that you're talking about the amount of money that went through the credit card machine? A. Yes. Q. Okay. So then, that's even only just a portion of it? A. Yes. Q. So that wouldn't include people sending in checks or people paying in cash, right? A. Correct. Q. Okay. This is just the credit card amount? A. Yes. Q. All right. And that's the one that you says was $1,000 to $3,000 every single day? A. Averaged every day. Q. Right. How many days did you see that in a week? Five days a week? A. I was there five days a week, yes. Q. Okay. So, and I take it this didn't occur over the weekend. It was pretty much a five day week that, this part of the operation? A. No, no. They took, Rich took orders all weekend long, any time anyone called, he'd take an order. Q. So this is seven days a week? A. Well, the business was a seven days a week business, yes. Q. Right. A. But I was only there five days out of the week. Q. Okay. So we have $1,000 to $3,000 coming in seven days a week? A. Yes. Q. All right. So we're talking about a minimum of $7,000 a week and a maximum of maybe $21,000 a week, every week? A. Well, this -- Q. Well, is it true? A. No. I can't say it's true every week because on the average it was, especially during a release. Q. Well, if we take averages or a range? A. Well, it would have to be -- it fluctuates during a release. Q. But you said that every single week, or every single day, the minimum amount that was transacted was $1,000. That was the absolute minimum. A. At the time, at the time I was there, yes. Q. Oh, and when were you -- A. But I was aware when there were slow times. Q. When were you there? When were you there? A. When I was, in November, December. Q. Okay. And now, by the way, were you there during Thanksgiving? A. I couldn't answer that. I really don't know. THE COURT: Thanksgiving being in November when you were there? THE WITNESS: Yeah. Yeah. Well, I mean it was -- you mean around the season? THE COURT: You're taking the question to mean, were you there that day? THE WITNESS: Yeah. I don't -- that's what I'm thinking that he's asking me. THE COURT: Is that your question? BY MR. KITCHEN: Q. Yeah. That will do? A. I really don't know. I really can't recall that. Q. All right. Well, generally, whenever you were there, Richard was there? A. No. He'd go and do errands during the day. Q. I see. A. He'd go make -- Q. Well, I mean, did you have like a key to the house, let yourself in anytime? A. No. Q. No. So basically you were there when he or the family was there, or something? A. Yes. Q. All right. So if he were away, you wouldn't be there? A. Yes. Q. And you don't recall whether or not he was away during Thanksgiving or anything? A. No, I don't recall. Q. Okay. But if he were away, you wouldn't have been there during the time he was away? A. Right. Q. Okay. And was there a new release that had just gone out at that point? A. I wasn't sure when the disk was released. I really can't recall the dates of the release. Q. What -- well, do you recall whether there was a release at or about that time? A. I really can't recall the release, or when the disk was released. Q. Do you recall whether there was any advertising? A. We were always advertising. Q. Yes. And where would they advertise? A. We would send out FAX's. People would request information, mailers, flyers, I believe someone showed me the flyer. Q. Okay. So we have a variety of different kinds of advertising? A. Yes. Q. And one of them was FAX's? A. Yes. Q. And how many FAX's did he send out? A. Gee, that I don't know because mainly the FAX's, I sent out a few FAX's a day, and mainly the FAX's were sent out later on in the evening. We'd get a lot of FAX's, and mainly Rich would reply to the FAX's when I wasn't there. Q. But, forgive me, but you, you're saying that he was sending out FAX's and now you're saying, we got a lot of FAX's. I mean, what -- A. Well, we get a lot of FAX's requesting FAX's. Q. You have FAX's requesting FAX's? A. Yes. Requesting catalogs and we would FAX back our catalog. Q. How many requests would you get? A. That I couldn't tell you. They were -- we got a steady flow of FAX's coming in. There was a steady flow. Q. Okay. And how -- and how about direct mail? You said that he was advertising by direct mail? A. He did in the past, before I started working within the house. Q. Well, then, when he was making all his money? A. Well, I'm telling you. Q. Well, that's what I'm asking about. A. I was aware that he did it in the past, and we prepared flyers for it to be bulk mailed, but I never participated in the bulk mailing. We were too much involved in this case. Q. So at this point you really don't know whether the bulk mailing ever went out? A. The bulk of the flyers that I created, no, I don't know if they went out, but that I can't answer. Q. Okay. And what other advertising did he do? A. That was it. Q. FAXing and bulk mailing? A. Yes. Q. And that was the only retail advertising of which you were aware? A. That's the only advertising I was aware of, yes. Q. All right. A. Never took out any ads. Q. And most of the FAX's that were sent out, the FAXing of the catalogs, you say, I take it the catalog was a one page thing? A. Yes. Q. All right. A. No, no. I'm sorry. It's a two pager. We flipped it over and we put it through two times. Q. Oh, okay. And that FAX went out was, as a result of requests that were received from -- A. Yes. Q. -- customers? A. Yes. Q. Okay. And how did the, how was the, how was this advertised to the customer, that they should call in on the FAX? A. That is beyond me. Q. Okay. So as far as you know, these were spontaneous requests by customers for material or a catalog to be FAX'd to them? A. Yes. Q. Okay. Now, you mentioned a number of derogatory things that Mr. Graham said about Larry James. Do you recall any derogatory things you said about Larry James? MR. OSTROWSKI: Objection. Relevance. THE COURT: He may answer. THE WITNESS: No. I never said anything about Larry. BY MR. KITCHEN: Q. So your testimony now is that you never said anything about Larry that was bad? A. Never. Q. Okay. And did you ever use any, any names or epithets or whatever in referring to Larry? A. What is that word again? Q. Epithet. A. I'm sorry. Q. Sorry. Let's -- MR. OSTROWSKI: Is that a dirty word? THE COURT: Such as calling him a bastard, which would be an epithet. BY MR. KITCHEN: Q. Well, yes, or maybe a racially oriented slur or something like that? A. Never. Q. You never did? A. Never. In fact, a lot of close friends of mine are black and that was beyond my nature. THE COURT: That would make you -- you would pay more attention then if there had been such a word used by Mr. Graham. THE WITNESS: Exactly. I took offense to it when I heard Larry called a nigger. BY MR. KITCHEN: Q. Well, how about, how about anything derogatory related to the accusations that had been made, that he had stolen something. Did you ever make any reference to, to Larry, about, you know, being a thief, or some similar term? A. No, because I wasn't calling Larry a thief. Richard was. Q. I see. A. And so, it was, wasn't me. I was just a friend of Richard's and an associate of his, and it was his claims, not mine. Q. Well, at the time though, you believed he was a thief? A. I believed Richard's testimony, yes. Q. So you actually believed that Larry was a thief? A. Based on Richard's testimony. Q. The answer is yes? A. Based on Richard's testimony. Q. Yeah, but I need to know whether you're saying yes to that or not? A. Yes. Based on Richard's testimony. THE COURT: When Richard would say that, you would believe him at that point. THE WITNESS: Yeah. I had no reason to doubt Richard. THE COURT: All right. I just want to get it brought down to earth. BY MR. KITCHEN: Q. The amount of money that you're paying to Larry James is, of course, based upon the number of disks you produce, correct? A. Yes. Q. And by the way, is it based upon the number that you produce or the number that you sell? A. The number I sell. Q. Okay. And you give then regular accountings to Larry of, of what you have sold? MR. OSTROWSKI: Objection. Relevance. THE COURT: He may answer. THE WITNESS: Do I give him countings of what I've sold? MR. KITCHEN: Yes. THE WITNESS: No. I basically pay him in a chunk. THE COURT: But you're behind on your payments, you said. THE WITNESS: Yes. He doesn't -- THE COURT: How does Mr. James know what he has coming some time? THE WITNESS: Well, he really doesn't, but he's welcome to look at any time he wants. BY MR. KITCHEN: Q. So you have no objection to letting him know how many you have sold? A. Oh, no. No objection to letting Larry know. Q. Okay. Well, then, can you tell us what, what it is that you have sold? MR. OSTROWSKI: Objection. Relevance and trade secret, of the witness. THE COURT: He may answer. It's not your position to assert the witness' trade secret. He may answer. THE WITNESS: Like I stated before, I would not reveal that to you or your client. MR. KITCHEN: Well, Your Honor, I submit that -- THE COURT: No. It's material here, Mr. Anderson -- Mr. Armenia. MR. KITCHEN: Armenia. THE COURT: Mr. Armenia, because of the situation where we have the two parties here, and I need to know your particular relationship with Mr. James as it had been with Mr. Graham. It's important here so you must answer. THE WITNESS: Well, I really don't have those figures, so I couldn't -- THE COURT: You don't know. THE WITNESS: I don't know those figures now. THE COURT: Well, that's a different answer. He said he doesn't know. MR. KITCHEN: He doesn't know. THE COURT: Doesn't know. BY MR. KITCHEN: Q. Well, do you have a general idea? A. No, I don't. Q. Well, how many of these have you ordered from the manufacturer? A. I couldn't tell you. Q. You have no idea? A. No. Q. Well, let's take version 1, for example. Are there more than a thousand produced? A. Yes. Q. More than 10,000? A. I can't answer that. Q. More than 20,000? A. I can't answer that. Q. More than 50,000? A. I can't answer that. Q. More than -- A. I know there's no more than that, but you keep asking me. I don't know, I can't answer the quantity of what I made. Q. No, no, no, no. You see, you're trying to, you're trying to give a response to a question I'm not asking. Okay. I'm asking whether you know if there is more than 50,000? A. No. Q. All right. You don't know whether or not there is more than 50,000? A. No, there was not more than 50,000. Q. All right. Do you know whether there has been more than 30,000 produced? A. No, there has not been more than 30,000. Q. Do you know whether or not there's -- A. There have not been more than 2,000 pressed of 1. Q. All right. So you're saying there is more than a thousand but there is less than, or not more than 2,000? A. Yes. Q. All right. That gives us a pretty good idea. How about version 2? A. I really couldn't tell you. Q. Okay. Have there been more than a thousand of version 2 pressed? A. I couldn't tell you that. Q. Have there been more than 500 of version 2 produced? A. Yes. Q. Okay. Have there been more than 2,000? A. I couldn't tell you that. Q. Have there been more than 10,000? A. No, there hasn't. Q. Okay. How about 5,000? A. No, there hasn't. Q. Okay. How about 3,000? A. I don't believe there have been. Q. Okay. 4,000? A. I don't -- no. Q. Okay. So we know for, 4,000 is the ceiling on this and 500 is the minimum on this. Okay. Somewhere between 500 and 4,000? A. Right. Q. Okay. But no where -- A. No. I said no to 4,000. Q. I'm sorry. Somewhere between 500 and 4,000? A. Right. Q. But you have no idea which figure that would be closer to? A. Oh, it's -- I can't, I don't know where the figure lies. I'm sorry. Q. Okay. A. I don't know where it lies. Q. It could be as high as 4,000? A. I really don't know. Q. All right. Okay. And version 3, how many have you sold of those? A. I don't know how many I sold. MR. OSTROWSKI: Objection. That's totally irrelevant because Mr. James is not on version 3. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. So, we have a minimum between version 1 and version 2 of 1,500 disks or a maximum of 6,000 disks, adding the minimums of 1 and 2 and comparing them with the maximums of 1 and 2, is that pretty accurate? A. I, that sounds accurate. Q. Okay. So, well, if it happens to be the minimum, have you paid a royalty to Mr. Graham -- or to, excuse me, to Mr. James, of at least $1,500? THE COURT: Have you paid it, or do you owe it to him? THE WITNESS: Oh, I've paid him considerably more than $1,500, yes. BY MR. KITCHEN: Q. Just in royalty? A. Well, I don't really divide the royalty up. It's whatever I owe him, period. Q. Okay. So you haven't differentiated that in your mind from the, the $2,000 of up front costs, correct? A. No. It's whatever I owe him. Whatever I owe him I owe him and that's it. Q. I see. But you don't know what you owe him right now? A. Pardon me? Q. You don't know what you owe him right now? A. No, I don't owe him a great deal, no. MR. OSTROWSKI: It's already been asked and answered. THE COURT: He may pursue it. BY MR. KITCHEN: Q. Have, have you and Mr. James had any discussions about how this unpaid amount is going to be taken care of? A. It's a small amount. I could write him a check right now if he wanted it. Q. And how much would that amount be? A. I would imagine it's within a $500 range. Q. Okay. So it's about, you say it's $500? A. I don't know. I would say it's within that range. THE COURT: You say you can be accurate to $500. THE WITNESS: Yeah. If it's somewhere around there. THE COURT: It might be $10,000 and there you'd be $9,500 to $10,500, is that what you're saying? THE WITNESS: No. BY MR. KITCHEN: Q. Well, why don't you tell us what the figure is and we'll just factor in the plus or minus $500, in terms of accuracy. What do you owe him, plus or minus $500? A. I don't know exactly what I owe him. Q. No. I didn't ask exactly. MR. OSTROWSKI: This has been asked and answered so many times, Your Honor. MR. KITCHEN: I asked -- I asked -- MR. OSTROWSKI: He's being harrassed. The witness owes each party a couple of hundred bucks. Why do we have to take all afternoon to establish that? THE COURT: Very difficult, very difficult to extract the evidence, and I'll allow some pursuit of it. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Mr. Ostrowski just testified that you -- MR. OSTROWSKI: No, I didn't. MR. KITCHEN: Oh, I'm sorry. MR. OSTROWSKI: I'm not sworn. MR. KITCHEN: I see. BY MR. KITCHEN: Q. Mr. Ostrowski gave some unsworn opinion that you owed, you owe him a couple of hundred dollars, is that accurate? A. I said around $500. Q. Oh, all right. All right. So you, you think what you owe him is about $500? A. Right. Q. All right. A. Somewhere around that figure. Q. And I recall from previous testimony, you weren't too sure exactly how much you did pay him so far, correct? A. Right. Q. Okay. But based on what you have sold of versions 1 and 2, the total amount that might be owed, might be fully paid to Larry James, could be as high as $8,000, correct? A. Fully paid to Larry? If you go to the maximum, yes. Q. Okay. A. Which you're stating. Q. All right. And at the very least, we're talking about $3,500, correct, because -- A. Yes. Q. Okay. And, and why haven't you paid him? A. Simply because Larry hasn't pressed me for it, and it's money that I can use to invest back into the business, and when Larry wants it it's there. Q. Okay. A. I've been never under any pressure to pay Larry. I pay him whenever. It's never been a problem between us in when Larry gets paid. Q. Well, has he ever -- he's never pressed you for the money? A. No. Q. You're still selling the disks with his version on them, right? A. Yes. Q. Okay. So the amount totally to be paid to him will continue to grow -- A. Yes. Q. -- when you continue to sell versions 1 and 2, right? A. Sure. Q. Okay. Do you anticipate that he might excuse or forgive any of the amount that might be owed to him by you? A. I would never let Larry excuse me for anything I owe him. Q. Well, how about in exchange for favorable testimony as a witness on his behalf? A. I would never accept anything on anything. I pay all my debts, regardless. Q. Yes. Except this one and the one to Mr. Graham, right? A. What's that? Q. Your debts. I mean, you pay all your debts, but you don't pay back Richard Graham, and you don't pay what's owed -- A. I did pay back Richard Graham. Q. You did pay back -- A. It was offered, the entire balance was offered to be paid back to Richard Graham and he wouldn't accept it. Q. When did you offer that? A. My wife offered it, when he called her on the phone and he contacted her at work, and she made, and he made it known to her about borrowing the money, and she said, Richard, do you want me to pay you back. Q. You were listening in on that telephone conversation? A. No. My wife told me that. Q. I see. But you, but you didn't really hear that offer made, did you? A. No. Q. So -- A. My wife was going to write out a check for him and he wouldn't accept it. Q. You indicated that you were still friends with Richard and his family? A. Yes. Q. And you've been friends, even though your business relationship broke up? A. Well, we've been distance friends. I only talked to him a few times after -- Q. How many times have you talked to him since you left in December of 1991? A. About four times, four to five times. Q. Okay. How many times you been over to his house? A. None. Q. All right. When was the last time you talked to him? A. About, let's see, about six months ago. Q. And how did that occasion occur? A. The telephone. Q. You called him? A. I called him, he called me. Q. Which, which was it? A. Pardon me? Q. Which was it? A. Both. Q. Oh, so there were two -- A. We exchanged phone calls quite a bit for about a week. Q. Who called who first? A. I called Richard first. Q. And what was the purpose of your calling him? A. To warn him of a distributor who was going to buy his product and dump it on the market for a dollar above his cost. Q. Who was that? A. I can't recall his name. Richard something. Q. Richard somebody? A. Yes. Q. Is that a, is that a danger in this business? A. What do you mean? Q. People, people getting a good deal on wholesale, and then rather than retailing them at a good, decent price -- A. Yeah. Oh, yes. Q. -- dump -- MR. OSTROWSKI: Objection. Relevance. It's totally irrelevant. THE COURT: It fits in with what he testified. I'll allow an answer. We won't pursue it ad nauseum. BY MR. KITCHEN: Q. And then possibly dump them at a very very low price and, and essentially hurt other distributors? A. Sure. Q. Okay. You indicated that during the fall of 1991 you were in the criminal justice program at ECC, correct? A. In the fall of 1991. Q. Right. A. I'm thinking if that's when I told you I was. Q. Yes. And did there come a time when you stopped attending that program? A. I was at Buff State at that time. Q. Oh, I'm sorry. I said ECC but it was at Buff State you were going? A. Right. I was, I transferred to Buff State. Q. When did you transfer to Buff State? A. I picked up Buff State in the fall. Q. Of 1991? A. Yes. Q. So like the September classes started? A. Yes. Q. And then you went -- all right. So you were going to Buff State in the criminal justice program? A. Correct. Q. And how long did you continue in that program? A. I never finished that semester. I dropped out in that semester. Q. When did you drop out? MR. OSTROWSKI: This has all been asked and answered. MR. KITCHEN: Well, I don't recall asking him -- THE COURT: Go ahead. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. When did you drop out? A. Prior to just going to work for Richard. Q. Is this something Richard asked you to do, to quit school? A. No. I -- Q. Did you tell Richard that you quit school? A. Yes. Q. And what was his reaction? MR. OSTROWSKI: Objection to relevance. THE COURT: He may answer. THE WITNESS: Nothing. He just said, he didn't have any really reaction. I told him that's -- BY MR. KITCHEN: Q. So he didn't care one way or the other? A. No. Q. All right. A. I told him it was my own decision. Q. Did you, did you tell Richard before you told your wife? A. Yes, I did. Q. Okay. And did you ask Richard not to mention it to your wife? A. Oh, that I can't recall. I don't recall all that. Q. Okay. I take it your wife did not approve that you quit school? A. Oh, no. She didn't -- Q. Okay. A. She didn't care at all. Q. Oh, she didn't care? A. No. It was my decision. Q. Okay. Why did you quit school at that point? A. To work full time and get involved in what I was doing with Richard. Q. Well, you were working, you were working for your father before and still going to school? A. Yes. Q. And you had had other jobs when you were going to school, correct? A. Yes. Q. Okay. So Richard certainly wasn't requiring you to quit school, was he? A. No. I didn't say he was. Q. All right. No. So there's no reason that you couldn't have continued in the school while you were working for Richard, is there? A. Oh, yes. There was. THE COURT: What does that matter? We seem to be a little bit outside of the lawsuit. Whether he could have or couldn't have. BY MR. KITCHEN: Q. Well, does your -- why did you quit at that point? A. Because I couldn't handle the work load. The school was too much, and work was too much, and one had to give. And the opportunity to make money was definitely pressing between, between our finances, mine and my wife's, so I had to take money over the school. School could always be picked up at a later time. Q. Were you also at that time entertaining the possibility of going into business for yourself? A. Oh, no. Never. Q. Never? A. Never. Q. Okay. Now, by that time, of course, you had already switched over the BBS that you were running, the bulletin board, in your own name, weren't you? A. Right. That's a hobby. That's not a business. Q. Okay. But your hope was to develop that into a business, correct? A. Never. Q. And in fact, you did develop that into a business, didn't you? A. It is not a business, no. Q. You did develop it in the sense that you utilized the BBS as one of the resources or access for the various program materials that ended up on the Pier One CD Rom, correct? A. No. The Pier, Pier Exchange BBS is nothing more than a support for the business itself. It is not, it has nothing to do with the business, except for a support, a means of support. Q. Of supporting the business? A. A means of support of the product. Q. Of supporting the product that you were selling? A. It is not the business itself. Q. No. A. The BBS is nothing actually -- Q. But it does support the product? A. Support the -- the product is on there, yes. Q. Right. A. You can purchase the product off of the BBS, but the BBS itself is not a business. Q. Do you remember telling Robert Depew that you knew that the retrieval program was Richard's? A. I don't remember really talking to Robert Depew. Q. Did you make any suggestions when you were in my office as to an amount to be sued for in the, in a lawsuit against Larry James? A. I have absolutely no idea what your, what your suit is really based on at all. I was never disclosed that information at all. Q. So you, at the time you were in my office, there was no discussion of the fact that there might be a lawsuit for copyright infringement? A. Oh, yeah, but there was never a mention of what the suit actually was, or what you guys thought the suit was, or anything. You guys never told me that. It was yours, your and Richard's business, and I never asked Richard either. Q. Did you ever tell anybody that you were an FBI informant? MR. OSTROWSKI: Objection. Irrelevant. THE COURT: He may answer. BY MR. KITCHEN: Q. Yes or no? A. What was the question. Q. Have you ever told anybody that you were an FBI informant? MR. OSTROWSKI: Your Honor, the witness is an FBI informant. THE COURT: He may answer. MR. OSTROWSKI: I wonder if it's appropriate to -- THE COURT: He may answer. We're not asking whether or not he was. We're just asking whether or not he said he was. MR. OSTROWSKI: Well, but if, if -- the implication is that he's not, and if he is, he can't really come out and say, I am. MR. KITCHEN: Well, if he really is for sure an FBI informant, I would expect he would want to call a halt and have some kind of maybe -- THE WITNESS: And I do. I want to call a halt right now, and I want to talk to the Judge privately. MR. KITCHEN: Okay. That may be the thing to do. THE COURT: All right. MR. KITCHEN: I don't -- THE COURT: You don't have anything else to inquire about. MR. KITCHEN: Well, yes, I do, so we should do -- I should pursue that, and then we can come back to this, Judge? All right. THE COURT: Yeah. BY MR. KITCHEN: Q. You indicated that the programs on your version 1 disk are not copyrighted, correct? I mean, that you have not put anything on it that you do not have specific permission to do so, correct? A. Correct. Q. All right. Would that also be true for the, the graphics files, the GIF files? A. Correct. Q. Okay. There are a number of GIF files on your directory which paint pictures on the screen of movie stars, television programs, scenes from TV programs and that sort of thing. Do you know whether or not those are at all protected by copyright? A. I have no idea whatsoever. There is no copyright on them, that's all I know. Q. Oh. So the only way you've measured these is knowing whether or not they are -- A. As I see a copyright on there, then I know. Q. So if there's no copyright notice on the picture, then you believe that you are free to utilize them? A. To the best of my knowledge, I am. I don't know, I never heard of anyone that says you can't. No one has ever confronted me or said I can't. Q. Well, how about, how about graphics programs in which the text file which describes the various files makes reference to the fact that it's copyrighted by a place like Warner Brothers? A. In the GIF, in the picture itself? Q. Yeah -- well, no, no. Not in the picture itself, but in your description of the file or the picture that's on your text file? A. That could easily be slipped by, a description with a copyright in it. Q. Who writes the text file? A. They come, usually the people upload them, or them come with, when you download from a system they're attached with, to that file. Q. And how do they end up in one file, which is read by the retrieval system? A. They're put into a certain directory. Q. Okay. Do you ever read through it and see what's in it? A. Well, I try to read as much as I could, but it's very difficult to read them all in the short period of time that we do receive files. Q. Are you unaware that there is a copyright notice right in one of the, one of the descriptions in your text file of one of the, the program says it's copyrighted by Warner Brothers? A. Yes. I am unaware of it. Q. Okay. If you had been aware of it, you would have done something about it? A. Sure. Q. Okay. Are you aware you have a number of GIF files there which depict pictures of, from the television show Star Trek? A. Yeah. I'm aware they're on there, yes. Q. All right. And you don't know whether those are, are protected? A. No, I don't. Q. Okay. You've never, you've never had any communication from anybody objecting to your use of those? A. No one has ever objected to anything, any material on any of my Roms, to this date. Q. Okay. A. Excuse me. One person has. Q. Who? A. There was a program on there, an incomplete file from a communications program that I was carrying on, on the disk, that was incomplete. A complete version was on there but someone had renamed it and said it was something. And there is no way you can test every single file to see if it's legitimate. Q. What did you do about that? A. Oh, I told him that if we ever pressed the disk again it will be released, but they didn't care that it was on there. They just pointed out the fact that it slipped by, and they were a distributor of, they held the, they were a distributor for the author. And all they did was point it out to us. They never did once request that we have it removed or -- Q. On one of your disks do you have a copy of PC Write? A. PC Write? Q. PC Write? A. PC Write, I believe it is on there, PC Write. Q. And that, does that specifically say that it's not to be distributed on shareware disks? A. That I'm not aware of. MR. KITCHEN: Your Honor, at the current time, I don't have any further questions, other than this thing about the, him being an FBI informant, and I'm not exactly sure what the Court thinks is an appropriate way to, to proceed. THE COURT: Well, I think we can hold that on the side burner. We'll give Mr. Armenia an opportunity to consult with whomever he wants to on that and proceed with the redirect examination. REDIRECT EXAMINATION BY MR. OSTROWSKI: Q. Just to clarify, Mr. Armenia, you made three tape recordings? A. Yes, I did. Q. And you gave them to Mr. Graham? A. Yes, I did. Q. And who are the -- MR. KITCHEN: Your Honor, I object because on my cross I don't think I asked anything about a third tape. THE COURT: Well, we talked about the recording so I'll allow a question about whether there was a third. You may answer. BY MR. OSTROWSKI: Q. Now -- THE COURT: Did he answer? THE WITNESS: Yes. Yes. There were three separate distinct tapings. BY MR. OSTROWSKI: Q. And who were the conversationalists on each of the three? A. The first one was Richard and Larry. The second taping was Larry and Robert, and -- Q. Robert Depew? A. Depew. And the third one was Richard and Ralph Markowitz. Q. Now, did you decide to -- did you start believing Larry's version of this because you owed him money? A. Pardon the question? Q. Well, apparently you testified that you owe Larry some amount of money for his, use of his retrieval? A. Yes. Q. Okay. And did you decide to, did you start believing his version of the dispute before or after you began to owe him money? A. Oh, way before I even knew, I really talked to Larry, outside of -- Q. You decided he was -- A. -- any involvement, I've never had any business involvement with Larry before -- Q. So you started to believe him before the -- A. -- coming to a conclusion that I believe Larry. Q. I'm sorry. You started to believe him before you owed him money? A. Well, let's say this. I didn't start to believe Larry. I doubted everything Rich told me. That's the safest way to say that. Q. What was the loan from Mr. Graham about? A. The loan? Q. He, you borrowed $1,200 from him, or -- A. Yeah, actually the check was $1,300. Q. $1,300? A. And I would agree that it is $1,300. Q. You forgot that -- A. Yeah. I was, I was just guessing. Q. Okay. What was the purpose of that loan? A. That was for a computer. My computer hard drive crashed. Richard, I went out and bought a computer but took it out of my savings, mine and my wife's savings, and I didn't want my wife to know about the, me purchasing a computer with our savings, so I borrowed the money from Richard and put the money back into the savings, and then started paying Richard back. And then I lost employment from Richard and my wife got a phone call stating that Richard had told, Richard told her about -- MR. KITCHEN: I'll object to the phone call. THE COURT: Wait a minute. Wait a minute. Let's ask the question, and let's be responsive to the question. MR. OSTROWSKI: Well, I was satisfied with the answer. I'll go on to a new question. BY MR. OSTROWSKI: Q. Is Mr. Graham a smoker? A. Yes. Q. What kind of a smoker? THE COURT: You mean, what does he smoke? MR. KITCHEN: Object to the relevance, Your Honor. MR. OSTROWSKI: No. How frequently? MR. KITCHEN: Object to the relevance, Your Honor. MR. OSTROWSKI: It's equally irrelevant to the heart problem that was raised. So if one is irrelevant, both are, and so on. THE COURT: All right. You may answer it. THE WITNESS: I would say two, two packs. BY MR. OSTROWSKI: Q. A day? A. A day, at least. Q. When, when Mr. Graham showed your brother the program, how did -- what was the form of the program? Was it on a disk, a paper, or -- A. It was on the computer and the hard drive that Rich said he couldn't compile it from. It was in the form of codes. Q. Codes on a disk in the -- codes on the hard drive? A. Codes on the hard drive. Q. Brought to the screen? A. Brought to the screen. Q. So that he could work on it? A. Yes. MR. OSTROWSKI: No further questions. THE COURT: Anything, Mr. Kitchen? Leaving the one question open? MR. KITCHEN: That's correct, Your Honor. I have nothing other than that. THE COURT: All right. Thank you, Mr. Armenia. (Witness excused.) THE COURT: What's the situation, gentlemen? MR. KITCHEN: Well, can the Court deal with the FBI informant situation at all? The witness had apparently asked whether he could confer with the Court in -- THE COURT: No. He didn't ask to speak with me. He said he wanted to talk with somebody, is that right, Mr. Armenia? MR. KITCHEN: I thought he mentioned actually you, Judge, and I'm not -- THE COURT: Me. MR. KITCHEN: Well, I'm not sure that would be inappropriate. I mean, if he actually is an FBI informant it probably should be something that he should be telling you. THE COURT: If that situation exists, I would think Mr. Armenia would want to talk with whomever his contact is, and if that contact has some reluctance to have it put out into the courtroom air, that contact would be in touch with me. MR. KITCHEN: Well, how can we -- THE COURT: I certainly am not going to be advising Mr. Armenia whether he should say yes, no or maybe. MR. KITCHEN: Well, I don't want to do anything that's going to necessarily jeopardize Mr. Armenia's health, I guess. But on the other hand, that's a, that's a statement that if made certainly goes to his credibility, and if it is not truthful he made. THE COURT: Somewhat. MR. KITCHEN: Yes. THE COURT: To a minor matter. To a minor degree, I would say. MR. OSTROWSKI: I would ask the Court to consider striking the question. I mean, Mr. Armenia does indicate to me that he wants to speak to somebody to gain further advice about the situation. But it's so collateral and there's no way to rebut, there's no way for Mr. Kitchen to prove that he's not an informant, in any event, because it's outside the scope, it's a collateral matter. THE COURT: And what does it matter if he is? MR. KITCHEN: Well -- THE COURT: Or what does it matter if he is not, or what does it matter if he is not and he says he is? Now, there you've got a little bit of credibility. MR. KITCHEN: Yes. I -- MR. OSTROWSKI: But you can't prove it. How you going to prove it? MR. KITCHEN: Well, my first question -- MR. OSTROWSKI: Without starting a separate trial. MR. KITCHEN: Oh, no, no, no. My first question was, of course, and did he tell any -- THE COURT: Well, you ask it this way. Mr. Armenia, have you ever told anybody that you were working undercover, which is what it would be, for the FBI? He's now refused to answer that. If he said, yes, I have, then the next question would be, are you an undercover worker for the, agent for the FBI. And he would say yes or no, which would deal with his credibility on a minor facet. MR. KITCHEN: That's correct. THE COURT: A minor facet. MR. KITCHEN: Well, Your Honor, you say, you say it's a minor facet. I submit that, that it is not, not a, a slip of the tongue. It is not a minor oversight. It is an intentional deception to tell somebody that you are an FBI informant if in fact you are not. MR. OSTROWSKI: But you can't prove that he is not. How are you going to prove it on the confines of the trial? MR. KITCHEN: I'm going to ask him. MR. OSTROWSKI: You can't prove it. MR. KITCHEN: Excuse me. I'm going to ask him. THE COURT: Well, if you have information that he, Mr. Armenia, told someone that he was an agent or undercover agent for the FBI, then obviously you have access to the person to whom he said that. MR. KITCHEN: Yes, sir. THE COURT: Now, if that's important, whether or not he is, then of course you can prove it, but I don't think it's of any importance. MR. KITCHEN: Your Honor, if in fact his statement, first of all, assuming he made the statement to somebody that he was an FBI informant. If that is a truthful statement -- THE COURT: Well, if it's not truthful, he may be just a braggart. MR. KITCHEN: Yes, Your Honor, he very well may, or he may, he may have more nefarious intent. He may be more than just a braggart. He certainly is -- THE COURT: I can't imagine anything that would intertwine with the questions here. MR. KITCHEN: Well, I think I would be, I suppose, want to ask him questions along that line. But I mean -- THE COURT: If he were, for example, working undercover for the FBI, I would sustain any objection to get into what he's working on or what his contract is. MR. KITCHEN: Well, yes, unless, of course, it related somehow to, you know, this computer business. THE COURT: Well, that may be, but not this computer business. Not Mr. James' computer business, not Mr. Graham's computer business, and particularly, not the inter-relation between Mr. Graham and Mr. James. MR. KITCHEN: Oh, Your Honor, we don't know that all these people might be involved in some sort of -- THE COURT: We don't know but it's sheer -- MR. KITCHEN: -- elaborate -- THE COURT: -- sheer surmise. MR. KITCHEN: -- sting operation, Your Honor. This could be -- THE COURT: Sheer surmise. MR. KITCHEN: Well, right now it's surmise, but unless I have at least the answer to my first question. I mean, if the answer to the question is -- THE COURT: What if he says yes? MR. KITCHEN: Then I would ask him whether that were true. THE COURT: Then he says either yes or no, what's that make? MR. KITCHEN: Well, if he says yes, then I suppose that is consistent with credibility. If he says no, that is consistent with a lack of credibility. THE COURT: All right. Un peu. MR. KITCHEN: Well, Your Honor, I don't want to be accusatory, but I submit, Your Honor, that the Court is perhaps identifying that as un peu because it's frankly a difficult area to get into, not that it's not really of some importance. MR. OSTROWSKI: Is that P-U? THE COURT: Particularly not in this lawsuit. MR. KITCHEN: No, not P-U. It is -- well, you know, Your Honor, this witness -- THE COURT: Rest on the matter and we'll see what happens. Now, I was getting into the matter. What do we do from this point. MR. KITCHEN: Well -- MR. OSTROWSKI: I didn't want to keep Mr. Armenia hanging. Now he's been here any number of days. THE COURT: Well, I don't know. Mr. Kitchen says that Mr. Armenia said he wanted to talk with me about it, and I missed that if -- did you say that? MR. ARMENIA: Yes, I did. MR. OSTROWSKI: I think perhaps an in camera -- THE COURT: I don't want to talk with you, but -- MR. ARMENIA: That's okay. THE COURT: So that ends that. MR. ARMENIA: All right. MR. KITCHEN: Well, okay. Well, if that ends that, Your Honor, then I would submit that there may be other people he'd want to talk to. He may want to get some legal advice. He may -- THE COURT: That's up to him. I thought he said he wanted to talk to someone else, which would be my initial reaction. If I were working undercover, I'd want to know from my contact whether it's all right for me to say yes, or no. MR. KITCHEN: Then I, I would suggest, Your Honor, that we allow Mr. Armenia to take whatever time he needs to make whatever contacts he has, and then make himself available at our next appropriate date or thereabouts for the completion of the cross examination. THE COURT: Now, I don't know what our next appropriate date is going to be. I have a trial beginning Monday that's supposed to take four or five days, although the defendant in that case is claiming that his main witness is having a biopsy today, the results of which he won't know until tomorrow. And if it turns out that things are bad, then he has to have some prostate operation and the trial would have to be adjourned. Otherwise, it's on. So I'm not sure. MR. OSTROWSKI: Well, is tomorrow available? I notice that you -- THE COURT: Tomorrow I have my calendar, and I don't know what's in the morning. Do you have calendar tomorrow, Jeanne? What's it say for tomorrow morning? Usually I try to get these 16-B things into Friday morning. Evidently I don't have anything Friday morning. Does it do us any good if you take three hours tomorrow, does that do us any good? MR. OSTROWSKI: Well, Your Honor, I did have, I did ask a witness to come in tomorrow at -- THE COURT: For example, we haven't had the testimony of Mr. James, which is certainly going to take more than three hours. You say you have someone coming in tomorrow morning? MR. OSTROWSKI: I just retained an expert on the audio tape. Give Mr. Kitchen the name, and so on, but -- THE COURT: Burke? MR. OSTROWSKI: Pardon me? THE COURT: MR. OSTROWSKI: Yes. Should be a very short witness because I'm just going to ask him two or three questions. And then I -- THE COURT: You've told Mr. Kitchen who he is, what his qualifications are, what -- MR. KITCHEN: None of that, Your Honor. THE COURT: -- the summarization of his testimony is going to be? MR. OSTROWSKI: I just started to write it out, Your Honor. I've just been in touch with him yesterday and today. And I'd be glad to give him a summary and all that information. MR. KITCHEN: You know, Your Honor, I guess, I'm going to raise an objection now, even before this person has been called, because apparently the only person who could -- assuming there is a gap, and let's say that the expert says, gee, there's a gap, there's something missing, you know, then we assumingly -- THE COURT: Well, there doesn't seem to be a gap. MR. KITCHEN: Well, I know it doesn't seem, but -- THE COURT: The testimony is that there was a click, as though someone had pushed an off button, and some interruption of the flow of Mr. Graham's statement, and perhaps as though someone had said something, putting it on top of what originally had been there, thereby erasing what had been there. MR. KITCHEN: Well, I guess I'm suggesting kind of a worst case scenario from plaintiff's standpoint, that there might have been some sort of tampering. Now that, even if you assume that, we, we do not have anything to indicate from the one witness, Mr. Armenia, who heard this conversation, that gives any indication as to what's missing. THE COURT: That's right. MR. KITCHEN: I -- THE COURT: Nor do I have any transcript of that little segment, a literal transcript of what's there. MR. OSTROWSKI: Well, I could, I prepared that, actually. MR. KITCHEN: Well -- THE COURT: You have? MR. OSTROWSKI: Well, just the few words before and the few words after. THE COURT: You have prepared it. MR. OSTROWSKI: I could have -- THE COURT: You've written it out. MR. OSTROWSKI: Yes. I -- THE COURT: Yeah. Have you shown that to Mr. Kitchen? MR. OSTROWSKI: I have not. That does not relate to the expert's testimony. MR. KITCHEN: Well, it seems to me, Your Honor, that -- THE COURT: As I indicated before, I think I'm fairly much capable of indicating whether anything happened on the tape, just by listening to it. MR. KITCHEN: Well, what you can't hear, of course, is what's missing, if something's missing. That's the -- THE COURT: I know, but I can tell if there's some interruption in the flow, any abnormal interruption in the flow of the testimony. Now, I know Mr. James, for example, there were great silences from his point of view. Whether Mr. Graham started to say something and stopped and said something else, but I think that, that would be apparent. MR. KITCHEN: That seems to be different than what's, what this particular is talking about. THE COURT: Is said to be. MR. KITCHEN: Yes. But I guess what I'm, I guess what I'm saying is that if this going to be a matter of the Court hearing this and relying on its common knowledge and background and hearing the tape itself, then perhaps this is not a matter to be addressed by an expert witness. And so I would object to the expert witness there. MR. OSTROWSKI: Well, I have a man who has done nothing for 20 years but work in editing audio tapes, and I think he's qualified by experience to render an expert opinion. And I'd be prepared to put him on. MR. KITCHEN: Well, I don't -- THE COURT: Well, first you've got to make known to Mr. Kitchen who and what his qualifications are and what he's going to say. MR. KITCHEN: Your Honor -- MR. OSTROWSKI: Well, I'd be happy to do that right on the record because all this has happened so quickly in the last day or two. MR. KITCHEN: Your Honor -- THE COURT: Write it on a piece of paper. Hand it to him. MR. KITCHEN: Okay. I don't, I don't dispute that there are audio experts, okay, and that -- THE COURT: Well, that's nice. I think there are. MR. KITCHEN: All right. Right. Okay. THE COURT: Yeah. MR. KITCHEN: What I'm saying is that if there is a matter of -- THE COURT: Even before Nixon there were. MR. KITCHEN: Yes, even before Nixon. If -- but regardless, Your Honor, if the Court determines that this is a matter of common knowledge, that it is inappropriate to offer expert testimony, and just by way of example, Your Honor, because it arises occasionally in copyright cases, that in the case of a copyright if something that's normally could be picked up and read or picked up and viewed or seen, it does not require nor is it appropriate to offer expert testimony with regard to, let's say similarity, because similarity is supposed to be judged by common knowledge. THE COURT: Yeah. Well, let me say this now. Mr. Ostrowski says he has written out what is said there and what comes immediately after it. Is anything that was said just before this interruption important -- MR. OSTROWSKI: Well, my recollection is -- THE COURT: -- to the lawsuit? MR. OSTROWSKI: I think it is. There was a long conversation, that particular -- THE COURT: What was said just before this break? MR. OSTROWSKI: What he said was, and I also told you, interruption. THE COURT: And then what follows? MR. OSTROWSKI: Something about, once sales get going better I will pay you more money. I'm not as certain about what followed after, but just that -- THE COURT: No, but that's one side or another of this particular break. MR. OSTROWSKI: It appears that there may be three or four seconds -- THE COURT: Which doesn't seem to itself, from what you tell me, to lack any continuity. I mean, it has a continuity, but whether there's some clink or a physical break or something, I don't know. MR. OSTROWSKI: It appears that there may be three or four seconds missing because the sentence itself -- THE COURT: Oh, there's a silence? There's a silence? MR. OSTROWSKI: No, it's not -- well, there's not silence. There's a mechanical noise of some sort -- THE COURT: A click. MR. OSTROWSKI: -- which -- a number of clicks. THE COURT: But the witness said that that indicated to him that someone had pushed the stop button. MR. KITCHEN: The record button. MR. OSTROWSKI: That's what I thought. THE COURT: If it's recording, you've got to push the stop button to stop it. Then you push record to start it. You should get two clicks out of it. MR. KITCHEN: Well -- MR. OSTROWSKI: The -- MR. KITCHEN: Mr. Armenia said he didn't do that. MR. OSTROWSKI: I think he -- THE COURT: I know he said he didn't do that. MR. KITCHEN: Right. MR. OSTROWSKI: I thought he said that he, that it indicated to him that the record button was pressed, but I'm not -- THE COURT: He's recording the thing. How can you press the record. MR. OSTROWSKI: No, Your Honor, I think what he stated is that -- MR. KITCHEN: On playback. MR. OSTROWSKI: -- he did nothing, but that -- THE COURT: You mean on the playback, somebody at that point pushed record at that juncture and said something which recorded over what was there, thereby erasing what was there. MR. OSTROWSKI: That's my recollection. THE COURT: But, you know, what you tell me -- MR. OSTROWSKI: Which is exactly, by the way, what -- THE COURT: What you tell me makes it sound as though you've got some continuity, some sensible continuity of things said by Mr. Graham. MR. OSTROWSKI: It's not, because he said, and I also told you, and then there's something missing. It does not make total sense. THE COURT: Well, then he goes on to, that I would pay you, blah, blah, blah. I also told you that I would pay you blah, blah, blah. MR. OSTROWSKI: But there's two, there may be two seconds missing there where something -- THE COURT: Oh, no. Is there a two second gap? MR. OSTROWSKI: I'd have to -- I haven't timed it. I -- MR. KITCHEN: Well, now -- THE COURT: Is there a gap, is there a noticeable gap? MR. KITCHEN: No, no. MR. OSTROWSKI: There's certainly conversation, and then interruption of -- THE COURT: As I got it, it was a click, and then something seemed to be put on top of what had been there earlier, erasing what had been there earlier. MR. OSTROWSKI: Well, I think the theory that we are now advancing is that the original was taken and someone pressed record over the original so that something was blotted out. THE COURT: Thereby erasing what is in there and putting something on top of it. MR. OSTROWSKI: Well, there would be nothing on top of it except mechanical -- THE COURT: Well, then you'd have a gap. Then you'd have a period of silence. MR. OSTROWSKI: No, there's no period of silence. It's, it's if you simply depressed record momentarily, and then it wouldn't be pressed long enough to really pick anything up, except mechanical noise of the command. THE COURT: Momentarily is a measurable period of time. You may not believe it. It may get down to nanoseconds or something, but nevertheless we're in a measurable period of time. MR. KITCHEN: It sounded, my recollection, we're talking about maybe a second or two. I -- MR. OSTROWSKI: Well, in any event, I'm prepared to put on the expert. I think he'd be helpful, and Mr. Kitchen is opposing it. THE COURT: First of all, you've got to tell Mr. Kitchen who he is, what he's doing. MR. KITCHEN: Yeah. I guess I'm opposing it. THE COURT: And give that to him, and then if Mr. Kitchen has some objection to it, then I'll listen to that, and maybe he needs more time. If he wants to have his own expert sit in the courtroom while he's listening to your expert -- MR. KITCHEN: That's what I think I'm going to have to do. So I've got to get my audio expert. THE COURT: Number one, you have to -- MR. OSTROWSKI: You know, Mr. Kitchen is interested in -- THE COURT: Number one, you have to provide this information to Mr. Kitchen. MR. OSTROWSKI: Well, I could do that in the next 45 seconds, Your Honor. Mr. Kitchen obviously wants to stall and delay, which is his whole strategy in the litigation. We have an injunction. We have limited resources. We want to get the thing over with. I mean, I'm prepared to write it out right now what he's going to say, and then we could have oral argument. THE COURT: I'm not going to work Saturday. MR. KITCHEN: Your Honor -- MR. OSTROWSKI: Pardon me? THE COURT: I'm not going to work this Saturday. MR. KITCHEN: Your Honor, defense has consistently -- THE COURT: I'm not going to work on this this Saturday rather. MR. KITCHEN: We have, we have the testimony from defense and from its witnesses that, that Mr. James is an expert programmer, and we know that programs typically run $50,000-$80,000 and I'm just appalled that somebody who makes that kind of money has limited resources, but in any event, and actually if he's a little short of cash it seems that since Mr. Armenia is ready to write him a check at the drop of a hat, that there may be the resources necessary. MR. OSTROWSKI: It's not funny, Mr. Kitchen, in light of the fact that attorneys' fees are recoverable under copyright law. MR. KITCHEN: Oh, well, I was trying not to be facetious about attorneys' fees. I usually am not. But if, if this expert witness is coming in tomorrow, I would rather have a particular time set so that I can have the opportunity to retain an expert, let him listen to the, the tape. THE COURT: Well, number one, in this next few seconds you're going to get this vital information from Mr. Ostrowski, which you will then ingest and think about, and then you will decide what you are going to do. If you're going to object to the witness coming on, I'll need to hear you, and I can do that first thing in the morning, or I can do it, I don't know how much time it takes you to do it. MR. KITCHEN: Well, in the meantime, Your Honor, there's certainly other defense witnesses to put on, and if this, this fellow, this expert is not going to appear tomorrow, and appears another day, it wouldn't make, you know -- THE COURT: You have Mr. James. MR. OSTROWSKI: Yes. THE COURT: What other defense witness? MR. OSTROWSKI: Just Mr. James, and possibly our professor, although I have to consult with him. He's, he's continued -- THE COURT: What professor? MR. OSTROWSKI: Our professor at Canisius, Your Honor. He's reviewing programs for similarity. THE COURT: Oh, I see. MR. OSTROWSKI: He's continuing to work and I have difficulty talking to him. THE COURT: We certainly don't want him in for tomorrow morning because then he'd have to come back again and they don't like that. MR. OSTROWSKI: No. All I'm saying, Your Honor, with respect to the scheduling is that I think we are nearing the end, hopefully, and instead of -- I would just like to slip the trial in as we can and get the thing over with, and I -- THE COURT: Well, I don't know if I can do anything on next week until I hear from Bill Price and this out of town attorney. MR. KITCHEN: That will be some time tomorrow. THE COURT: And tomorrow they're supposed to get the result of the biopsy, and I guess on the basis of that, if the out of town attorney tells Mr. Price that such and such is very bad, Mr. Price is in a situation of taking that at face value, and on that basis the trial will not go forward. Then I've got next week. MR. KITCHEN: Okay. MR. OSTROWSKI: With respect to tomorrow, how many hours do you have? THE COURT: Max, three. MR. OSTROWSKI: I may be able to accomplish a good deal of the direct of Mr. James tomorrow morning. THE COURT: Wonderful. MR. OSTROWSKI: Whether or not the expert comes on. THE COURT: Well, then, this gives Mr. Kitchen an opportunity to, one, tomorrow, I'll know tomorrow, some time during the day, I'll know what next week's schedule is going to be. It gives Mr. Kitchen an opportunity to evaluate any position he's going to take vis-a-vis your expert, and more particularly to hire, quote unquote, his own expert. MR. OSTROWSKI: Should I then put the expert off until later? THE COURT: I think so. MR. OSTROWSKI: Okay. I'll call him when I get back. THE COURT: All right. Tomorrow morning 9:00 o'clock. 390 I N D E X Witness Dir Cross Redir Recr Gregory J. Armenia 391 574 609 Jeffrey Robert Anderson 507 530 559 570 574 Exhibit Ident. Evidence Plaintiff's 65 394