Phoenix CD 5.0

home *** CD-ROM | disk | FTP | other *** search

/ Phoenix CD 5.0 / Phoenix-CD 5.0.iso / nightowl.012 < prev next >

Wrap

Text File | 1994-04-11 | 176KB | 3,256 lines

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, November 2, 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 MR. OSTROWSKI: For the record, Your Honor, with respect to Exhibit 19, do you have it? I'm going to ask that the confidentiality order be lifted with respect to that Exhibit. THE COURT: All I have on that, it says Programming. I don't know what it is. MR. OSTROWSKI: My recollection is that it's the one that says Brian's source codes on it, and that the testimony has been, is that correct? MR. KITCHEN: Yes. 19 is a printout of the C source code dated 12/13/91. MR. OSTROWSKI: I believe the testimony has been from Mr. Graham and Mr. Swanson that that program is similar to Plaintiff's 18, which is, is Mr. James' program, without any dispute, and I would ask that Mr. James be allowed to look at that Exhibit and testify about it. THE COURT: Is this a commercial item, something Mr. Graham has been selling? MR. OSTROWSKI: No. This is, well, this is the printout of the file retrieval program which is on some of the CD Roms that he is selling. It's not available, I understand, you can't have access to it from the CD Rom itself. MR. KITCHEN: Well, I have, I have a practical problem, Your Honor, in that I don't have my, my client here to counsel with as to what would be the effect. THE COURT: All right. I assume Mr. Ostrowski's need for it, if any, is not immediate. MR. OSTROWSKI: No. I can wait till Mr. Graham gets here. MR. KITCHEN: Okay. (LARRY D. JAMES, Defendant, previously sworn.) CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. James, when we were on trial in October, I was asking you about -- THE COURT: You make that sound so long ago. MR. OSTROWSKI: It seems endless. THE COURT: October 22nd. BY MR. OSTROWSKI: Q. I was asking you about what you did with the file retrieval program that you put together for Mr. Graham after that initial meeting, and I was asking you about the copyright notices on there. I believe you answered that question about the copyright notices. What, what did you do with the program after that? A. I took it and presented a copy to Mr. Graham. Q. And in what form did you take, was the program in at that point? A. Executional form. Q. Well, what does that mean exactly? A. It means it's something where you don't see the source. You just, you just put it on the computer and run it. Q. Okay. So he could -- was that called object code? A. Execute -- THE COURT: Called what? BY MR. OSTROWSKI: Q. Object code, or is that the 1's and the 0's, basically? A. It's a little bit lower level. It's the 1's 0's, yes, but it's not the object code. It's the executional code. Q. Well, what's the difference between the object code and the executional code? A. The object code is a step between the source and the, and the executional. When you compile a program, it produces an object code that's, that a utility uses in the final stages. It uses elements in that object code to link them together and make a finished executional. The object code is, is an element of binary, but it's not executional in that form. THE COURT: It's all binary, isn't it? THE WITNESS: It's -- THE COURT: I mean, isn't that the basis of computerism? THE WITNESS: The source code is conversation, it's talk, it's regular words, human words. And then the object code becomes binary, and the execution is something you can absolutely run from the binary code. BY MR. OSTROWSKI: Q. Okay. Let me just go back to the subject matter of the 26th. Have you done consulting work for businesses or individuals on, with respect to computers? A. Yes. Q. Okay. And can you tell us some of the companies or individuals you've done consulting work for? A. RS&E Associates in West Seneca. They're a subsidiary of Ford. And -- Q. Of who? A. A subsidiary of Ford. Q. Ford? A. Ford Motor Corporation. Q. What did you do for them? A. I installed a computer network and menu system. Q. Okay. Any other companies or individuals? A. I installed a menu system for the flea market, of course, and the computers, and I set it up for accountant and data base management. Q. When you say the flea market, what do you mean exactly, which part of the flea market? A. The administration department. Q. Okay. Any other companies or individuals? A. I set up a menu system and, and computer for doing machine analysis for a company, it's Jimmy Ostrowski -- Jimmy Ostrowski. What's the last name? Jimmy DiVirgiliac is, that's the manager of the company. I'm trying to remember the company's name. Q. Where are they located? A. Here in Buffalo, off of Hertel and Main Street. It's a major company but I don't remember the name. Q. Okay. Have you done any work out of town on computers? A. Yes. Q. And for whom? A. I set up a network for a subsidiary of Chrysler. It's J&L Enterprises in Detroit. Q. Okay. Have you done any work for any law firms? A. I set up a computer and menuing system for LoVallo and Williams and set up the computer to do word processing and data base management. I set up a computer system for, it's a real popular law firm, I'm trying to remember the name. THE COURT: Where is it? THE WITNESS: Jeffrey Friedman. I did some work -- THE COURT: Excuse me? THE WITNESS: I did some work for Jeffrey Friedman, not for the firm but for his personal office. His office is across the street on Court Street. THE COURT: Is Friedman the one whose name you're trying to think of? THE WITNESS: Yes. THE COURT: I see. All right. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. Now, you gave the -- let me also clear something up that may or may not have come up. What was the -- what did you expect to receive in return for supplying this file retrieval to Mr. Graham for the, the first time? A. Promotion. Advertisement and promotions. Q. Anything else? A. A CD Rom drive. Q. Okay. A. So, as a development -- well, as a, as a tool for my BBS so I'd have more files available for my users. Q. Okay. Now, you gave the, going back to where we were, you gave the program to Mr. Graham in executable form, and do you know what he did with it at that point, from your own knowledge? A. We sat together and I taught him how to use it, and went over elements of pointing out how to set up the text files, the files that you see on the screen when you list the text files that are referred to as DIR's. I showed him how to set those up so that they would be compatible with my program. And we ran it quite a few times to make sure it worked. Q. Well, when you, can you tell us in more detail, when you say you told him how to set up the DIR files, what exactly do you mean by that? A. I had been running a bulletin board for, for about five years previous to that, and, and I was running PC Board, so I told him to set up his DIR's exactly like PC Board. And, of course, he was running PC Board also, which I had given him, so that was a kind of simple matter to convert it over into that format. He had never thought of the concept of using PC Board structure. Q. Okay. Now, you say that you, in the form you gave him the program, he could not see the source codes, is that true? A. That's true. Q. Okay. And therefore couldn't see the copyright notice in the actual source codes themselves? A. The copyright notice would come up when you run the program. Q. Well, yeah. Was he able to see the copyright notice in some form? A. All the time. Q. Okay. How many times did he see it prior to -- do you recall what the release date was or -- A. I think it was around April. Q. Do you recall how long you worked with -- THE COURT: April of? BY MR. OSTROWSKI: Q. What year? A. '91. Q. Do you recall how long you worked with him on the program prior to the official release? A. About three weeks. Q. And do you, can you estimate how many times he saw the copyright notice during the -- A. Not less than a hundred times. Q. Okay. Did he, did he ever make any complaint about the copyright notice? A. He made a comment, but no complaint. Q. I'm sorry, he made a what? THE COURT: Comment. THE WITNESS: Comment. BY MR. OSTROWSKI: Q. What was his comment? A. To protect, so, to protect it so that no one can modify. Q. Well, that's, can you tell us more about what he said because it sounds like a half a sentence? A. Well, actually, he complimented the fact that it was protected. I demonstrated to him that you, if anyone made modifications that the program refused to work, and he complimented that. Q. Okay. Now, we'll later on hopefully have the screen up on the computer. What was your intention, what was your intention in listing yourself and Mr. Graham on the copyright notice? A. To promote my friend's name. MR. KITCHEN: Your Honor, I will -- THE COURT: To promote what? MR. KITCHEN: I have an -- THE COURT: Wait a minute. I just didn't catch the word. What name? Your own name, or my friend's name. THE WITNESS: My friend's name. THE COURT: Who's your friend? THE WITNESS: Richard Graham, at that particular time. THE COURT: All right. All right. Now you have an objection. MR. KITCHEN: Yeah. My objection is, is that this is essentially puerile evidence that the notice speaks for itself. His purpose in what he meant -- THE COURT: He's the only man who can say what was in his head, however. MR. KITCHEN: Well, that's true, except I'm wondering what extent the -- relevant as to what his intention is. THE COURT: Well, that might not be, but of course we don't have a jury. MR. OSTROWSKI: It's also that, Your Honor, the opening screen and the closing screen are different, significantly different, which we will see later, and I think he should be allowed to explain what his intentions were. THE COURT: Why not do it when it's on, when it's up? MR. OSTROWSKI: Well, I'm trying to ask him as many questions as -- THE COURT: Well, but you're going to have to repeat when it's all fired up and on the screen. MR. OSTROWSKI: Other than noting what it says, I don't think I'll go into detail. BY MR. OSTROWSKI: Q. What was your intention in having a joint copyright notice? A. It wasn't intended to be a joint copyright notice. It was intended to give him a license to run the particular execution that he had in his hand. Q. Did you have any legal counsel at that time about copyright law? A. No. I checked a book out of the library. Q. Okay. Was it your intention to grant him a 50% ownership in your program? A. No. Q. Okay. Now, I take it at some point the CD Rom with that program was released, you said in April? A. Yes. Q. Did -- what were Mr. -- did Mr. Graham say anything about the final product or the file retrieval program, what he thought about it? A. He was overwhelmed. Q. Do you remember exactly what he said, or the substance of it? A. He said, he had been using Folio, and he wasn't going to use Folio anymore because my program was so much overwhelmingly better and, that he was going to hire my, my program, employ that in its place and -- Q. I'm sorry. Employed that, did you say? A. Right. Q. Because I thought you said dat, which is a word which has been mentioned. You said employed that in its place? A. Right. He said he would use my program instead and -- THE COURT: Instead of what? THE WITNESS: Instead of Folio, and pay me what he was paying Folio. I didn't know what he was paying Folio, but he said he was going to pay me what he was paying them. MR. OSTROWSKI: Okay. THE COURT: Did you inquire? THE WITNESS: I didn't have to inquire. He continued to say he was paying me a thousand dollars for the initial version, for each initial cut, and a dollar commission per disk. And he told me that was what he was paying Folio. BY MR. OSTROWSKI: Q. Well, was that thousand dollars that you mentioned, was that a topic at that initial meeting with Ralph and Richard and yourself? A. No. Q. Well, and let me ask you this. Did the conversation about paying you what he was paying Folio happen before or after the, any discussion of a thousand dollars? Which came first? A. It happened, it happened the same time. Q. Well, tell us about the discussion in which there was a mention of a thousand dollars. When was that, and where? A. It was in April. Right after he released the disk he got a lot of phone calls and a lot of praise over it. Just as I had told him he would get. I put the ease of -- I program for kids, or for, for real easy facility. Q. Okay. A. And he was overwhelmed, and told me that he would, he would continue to use my program and not use Folio. It was sort of a, I guess he was testing, and I myself was doing promotions. Q. Well, when you say he was testing, what do you mean? A. He was, he was browsing around for products. I think each one of his disks had something different on it. Q. You said you were doing promotions? A. I was promoting my programming. Q. How, how were you doing that? A. By having my program distributed on his disk. Q. Oh, okay. THE COURT: You were promoting yourself as one who could do this work. THE WITNESS: Yes, Your Honor. I, as he mentioned what he would do, as for the dollar a disk, that, that would -- I acknowledged to him that -- he acknowledged that he, he was getting $198 and I was getting $1.00, but my money was to be made out of overall sales of my program to everybody. BY MR. OSTROWSKI: Q. Well, let's go back now because, we have to go back to the beginning. Who first mentioned compensation for the continued use of your program on another version? A. Richard. Q. Okay. And, and what exactly did he say? Was this back in April? A. Yes. Q. And do you recall where the conversation took place? A. It took place at his house. Q. Is that on, was that on Potomac? A. Yes, it was. Q. Okay. And what did he say? A. He said, Larry, I told you that you was a fantastic programmer and you could, you could make money. You ought to let me manage you, and I'll make you rich. Let me be your manager and don't just be working for $25 or $30 an hour like you're doing for them other people. You're wasting your talent. Let me sell, let me sell your product. Some -- he was -- I'm telling you what he was telling me, not what I was agreeing to. Q. Okay. Okay. Did there come a time when he was more detailed in his, what he was going to offer? A. With all his discussions, when he -- THE COURT: Yes or no? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. And -- THE COURT: When was that? THE WITNESS: In April, late -- BY MR. OSTROWSKI: Q. The same meeting? Was it the same meeting, or was this a series of meetings? A. It was basically the same meeting. It was a series of meetings but that, but it was the same meeting where he continued, he made a lot, we had a lot of discussion during this particular conversation. He was excited. He was telling me about all the disks that were selling, and how much money was coming in. THE COURT: You had many conversations, and in this particular conversation. I don't know where you are, Mr. James. THE WITNESS: In this, in this -- BY MR. OSTROWSKI: Q. What, when it come -- did he actually make a detailed proposal of compensation for you, for him to use your program, and -- yes or no? A. Yes. Q. Okay. And what was that detailed proposal? MR. KITCHEN: Excuse -- THE COURT: And when and where was this? THE WITNESS: At his house, he said that -- BY MR. OSTROWSKI: Q. When? Was it in April? A. Yes. It was in April. Q. Okay. What did he say? A. I'll, I'll pay you a thousand dollars for every version, plus a dollar a disk, what I'm paying Folio. Q. Well, when he said a dollar a disk, did he, was he any more detailed about what that meant, a dollar, how would that dollar a disk be mentioned? Did he -- be measured, I'm sorry. Did he specify that? A. Not in that initial meeting, but subsequently he did. THE COURT: When? THE WITNESS: About, about, somewhere about two months later I had told him that he was selling disks too cheap, that he should be consistent, and he made a mention to me that regardless of what he sell the disks for, I shouldn't worry about it. I'll get my dollar, even if he sold them for $3.00. And he, he kept mentioning that I'll get my dollar for every disk he sells. Don't worry about what he do. BY MR. OSTROWSKI: Q. Okay. So the, the agreement at that point was that you would get a dollar for every disk sold? A. Yes. Q. Now, going back to the initial meeting in April where he mentioned a thousand dollars per version, did you, what was your response to that? A. I agreed to it. Q. Okay. And what did, what did you do next, as far as fulfilling your part of the bargain? A. There was, there was nothing to do but coach him on how to sell the disk, how to sell the structures, and advise him of various things that I was going to put available for the users. Richard did make a mention a few times that he didn't want a lot of features in the CD Rom retrieval. He mentioned this a number of times. He said that people are going to be buying the disk for the retrieval, instead of for his programs. Q. Well, did you actually produce another file retrieval program for Mr. Graham, after the first one that came out? A. Yes. Q. Okay. And when, what computer language was that written in? A. C. Q. Okay. When did you actually write the, that particular program? A. I compiled it around July. Q. When did you actually write it though? A. It, it's hard to say when something's written. I just put together libraries, and according to what I want to produce, I just pull from my library and put all those elements together. Q. Well, what was the -- you did -- your first program was in Quick Basic? A. Yes. Q. And then the next one was in C? A. Yes. Q. Okay. What, what is the, were those two programs similar? A. Yes. Q. Okay. Why did you -- whose idea was it for you to write in C? A. It was my idea. I had been writing in C for Color Computer. Q. For who? A. For -- I had been writing in C for the Color Computer, and I had recently -- Q. I'm missing that, what kind of computer? A. The Tandy TRS-80 Color Computer. THE COURT: Color, C-O-L-O-R. THE WITNESS: Yeah, C-O-L-O-R. That's a brand of computers. BY MR. OSTROWSKI: Q. How did you learn the C language? A. By reading books. I, I had written a lot of programs for my Color Computer, so I, I -- when I went to the IBM machine, I took a little bit of time setting it up, and then I started converting my utilities for like, from my other Color Computer to the IBM community. Q. What are the advantages of using C language instead of Quick Basic? A. It's a lower level. You talk closer to the machine with less interface. With, with Basic, a lot of things are provided for the user. A lot of libraries is already provided for the user. With C, there are some libraries, but the user has a lot of liberty to make its own, and do its own methods of clearing the screen or bringing up or listing. Q. Can you give us some of the similarities between your Quick Basic program and your C program? A. They're user friendly, have -- the similarity is they call the directory files from, from a media. It could be a CD Rom drive or it could be a hard drive, or be a floppy disk, and present them to the user to handle it as they please. Q. Are they both file retrieval programs? A. They are. Q. Okay. Showing you Defendant's Exhibit 1 for identification, can you identify that document? A. Yes. Q. And what is that? A. This, this is a copy of my file data base management program. Q. In what language is that in? A. It's written in C. Q. And is that the program that you wrote in C for Mr. Graham? A. You keep saying wrote the program for Richard. I -- THE COURT: Constructed it. MR. OSTROWSKI: I'm sorry, Your Honor. I didn't -- THE COURT: I said constructed. I don't know if he's having problem with the verb or what. MR. OSTROWSKI: No, I think he's getting a -- THE COURT: Whether you write a program or whether you construct it or what you do. BY MR. OSTROWSKI: A. Well, let me ask you, is that the program that you provided to Mr. Graham for his use? A. Yes. Q. Okay. I take it -- well -- A. I was using it long before I provided it with Mr. Graham, and -- THE COURT: That wasn't the question. BY MR. OSTROWSKI: Q. That is the program that you, that you provided to Mr. Graham, however? A. It is. Q. Defendant's Exhibit 1? A. Yes, it is. Q. And that is in C language? A. Yes, it is. Q. Now, did you provide to me any programs, any computer programs? A. Yes, I did. Q. And what program did you provide to me? A. My file data base management. THE COURT: What is this, why is it pertinent what he provided to you? MR. OSTROWSKI: On the issue of copyright registration, Your Honor. THE COURT: All right. Well, I think you can approach it more directly then. You have some program and -- MR. OSTROWSKI: Well, I'm trying to -- THE COURT: -- what he gave to you you have, so you can exemplify it. MR. OSTROWSKI: Yes, Your Honor. It's, I'm trying not to lead the witness. It's Defendant's Exhibit 1. THE WITNESS: This is, this is the -- THE COURT: Go ahead. BY MR. OSTROWSKI: Q. Did you give me a computer program, Mr. James? A. Yes, I did. Q. And what program did you give me? A. I gave you my file data base management program, which is the same program that was published on Richard's disk. Q. Okay. And is that also the same program as Defendant's Exhibit 1? A. Yes, it is. Q. Okay. Did you give Defendant's Exhibit 1 to me? A. Yes, I did. Q. Okay. And why did you do that? A. To have it copyrighted. THE COURT: You have them pre-numbered, I take it. MR. OSTROWSKI: I was working on an Exhibit list this morning, Your Honor. Just ran out of time. THE COURT: I had you up as far as Defendant 21, but -- BY MR. OSTROWSKI: Q. Now, did we have some discussion about the, the name of the program that was to be copyrighted? A. Yes. Q. And what was that discussion about, or what did we discuss? MR. KITCHEN: Your Honor, do I understand now the witness is waiving his -- THE COURT: Attorney-client privilege? MR. KITCHEN: Yes. THE COURT: I would think so. MR. KITCHEN: Yes. THE COURT: At least in this area. MR. OSTROWSKI: Well, I didn't want to get into this whole sticky issue. I did ask Mr. Kitchen to stipulate to these matters. I mean, I'd be -- maybe I should take the stand as a witness and my father is coming down later anyway. Well - - MR. KITCHEN: Well, if Mr. Ostrowski is going to take the stand as a witness, then I understand that Mr. James would be, again, waiving his attorney-client privilege in allowing Mr. Ostrowski to testify about conversations. I'm not sure the privilege is waived any differently. THE COURT: Yeah. I think you have two, two different problems. One, whether it's waived, and two, whether you can represent Mr. James in the lawsuit if you're going to be a witness. MR. OSTROWSKI: I've researched the law on that, Your Honor. I believe that it's not a problem. THE COURT: Pardon me? MR. OSTROWSKI: I believe that this is a ministerial act. It's one of the exceptions under the disciplinary rules. And also, it's, if I'm not mistaken, it's not a hotly contested issue, unless Mr. Kitchen is going to make it one. THE COURT: But he won't stipulate. MR. OSTROWSKI: He won't stipulate. THE COURT: So there is some element of a contest. MR. OSTROWSKI: Well, in any event, I'm going to forge ahead. BY MR. OSTROWSKI: Q. Did we have a discussion about the name of the copyright program? THE COURT: What do you show it, that's right, go ahead. You talked to the name, he said yes. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. And what was that discussion? A. I told you the name of my program was, was FDM. You asked me what did it mean. THE COURT: Was what? THE WITNESS: You asked -- THE COURT: Wait a minute. FEM? THE WITNESS: FDM. THE COURT: FVM. THE WITNESS: FD. THE COURT: Frank Victor Moore. THE WITNESS: Files Data Base Manager. BY MR. OSTROWSKI: Q. Okay. And what was the further discussion we had? THE COURT: FDM, as in -- I see. BY MR. OSTROWSKI: Q. What else did, what else did we discuss about the name of the program? A. File data management sounds maybe kind of general. Q. Well, who said that? A. You said it. Q. Okay. And then what else was discussed? A. That I should consider some specifics for the copyright law to be, it can't be general, it has to be specific. And I added the name of my company to the name of my tool. Q. What's the name of your company? A. Apollo 3. Q. Okay. So what was the name that you told me to use to the Copyright Office? A. Apollo 3 Files Data Base Manager. THE COURT: So it's not FDM, it's File Data Base Manager. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Showing you Defendant's Exhibit 17, is that document familiar to you? You can turn it around and look at both sides, if you want. A. Yes, it is. Q. And what does that document appear to be? A. It's my certificate of registration for, for my copyright. Q. Can you turn it over, please. Is your signature on the document? A. Yes, it is. Q. And what, what date did you sign the document? A. I signed this February 19th, 1992. THE COURT: February 19, 1992, is that what you said? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Now, with respect to, did you give me any other programs, other than Defendant's Exhibit 1? A. No. Q. Did you ask me to copyright any other programs? A. No. Q. Now, on -- showing you Defendant's 1 again. MR. OSTROWSKI: Your Honor, I, I would move Defendant's 1 into evidence at this point. THE COURT: I for some reason have stuck off in my little notation on that also, Plaintiff 18, question mark. Now, what does that -- and then on Plaintiff 18, which is in evidence, there's a printout of a C source code, September 30, 1991. I have Defendant 1, question mark. Are they the same? MR. OSTROWSKI: I believe that they're the same, Your Honor. THE COURT: But Plaintiff 18 is in evidence. MR. OSTROWSKI: Slightly, they're slightly different in that Mr. James's copyright notice was removed, and I believe that's the only difference. THE COURT: Yeah. I have that notation. So you say that this is the same, except it has not been removed. MR. OSTROWSKI: Yes, Your Honor. And I take it that there is no confidentiality restriction with respect to 18. THE COURT: It's in evidence. I don't know. MR. KITCHEN: I don't believe that there is. MR. OSTROWSKI: Can I see it? MR. KITCHEN: On 18, I don't -- THE COURT: I don't know anything about the confidentiality of particular ones. You're sort of running that shop between the two of you. MR. KITCHEN: I don't think the issue of whether that one has been confidential or not has come up yet, and I'm, I'm not altogether sure. I guess -- MR. OSTROWSKI: Well, I asked you about that. I believe you previously told me that it does not apply to that because there, it's undisputed that that's what Mr. James gave to Mr. Graham and therefore there's no, there's no confidentiality concern. MR. KITCHEN: I think you were previously today asking me about 19. MR. OSTROWSKI: No, I know. I'm talking about 18 now. MR. KITCHEN: Okay. MR. OSTROWSKI: Well, in any event, I move that the confidentiality agreement with respect to 18 be lifted, because I can't prove my case without it, without asking Mr. James to compare the program. THE COURT: Is this another situation where you have to wait for Mr. Graham to be present? MR. OSTROWSKI: Well, this is -- the only difference, Your Honor, is that -- THE COURT: I just asked Mr. Kitchen. MR. KITCHEN: Well, it would, Your Honor. THE COURT: Well, it would be, or it is. MR. KITCHEN: Well, yes, it is, Your Honor. THE COURT: All right. MR. KITCHEN: But I will raise an additional point, which I think I can raise, even with him not being present, and that is the idea that I thought the whole point of the confidentiality was for the purpose of seeing that some expert on behalf of defendant were going to appear and make these kinds of comparisons. And, and now, essentially what Mr. Ostrowski is trying to do is to have his client be the expert witness and make, and make comparisons. In any event, I'll have to talk to my, my client about the confidentiality of 18. THE COURT: Well, he should be here any moment. MR. KITCHEN: Right. Obviously -- THE COURT: Why don't we take a recess until Mr. Graham has put in his appearance. MR. KITCHEN: Obviously though, Your Honor, if it's the same as Defendant's Exhibit 1 -- THE COURT: Well, except there seems to have been some difference. MR. KITCHEN: Well, let's put it this way. THE COURT: Defendant's copyright notice was deleted from Plaintiff's 18. MR. KITCHEN: Well, but Your Honor, that was -- THE COURT: And then obviously it was not deleted from Defendant's 1, I assume. MR. KITCHEN: But I will certainly say, Your Honor, that the copyright notice in whatever form has nothing to do with his confidentiality. It's -- THE COURT: It's the substance of it. Sure. MR. KITCHEN: That's, and that's what really makes it -- THE COURT: Are you satisfied that they're the same? MR. KITCHEN: To be honest, I'll have to, I'll have to make a comparison, which really I should do with my client at my elbow. THE COURT: Why don't we take a recess until Mr. Graham is here. MR. OSTROWSKI: Why don't, just in case he doesn't bring a computer, I will, Mr. James and I will get ours. THE COURT: You can accomplish that at the same time. MR. OSTROWSKI: So perhaps we could have about a half an hour to do that. THE COURT: When you're ready, we'll go. (Recess taken.) CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. James, the, the menuing -- did you get a menuing format from Mr. Graham when you were putting your file retrieval program together for him back in April? A. Yes. Q. And do you know from your personal knowledge where Mr. Graham got that menuing format from? A. Yes. Q. And where did he get that from? A. Well, it's, it's very primitive. THE COURT: The question is, do you know where he got it. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. Where did he get that from? A. Jeff Anderson. Q. Have you seen that menuing format before? THE COURT: Before then? BY MR. OSTROWSKI: Q. Before Mr. Graham showed it to you? A. Yes. THE COURT: In April of '91? MR. OSTROWSKI: Yes, Your Honor. BY MR. OSTROWSKI: Q. And where did you see that? A. On my BBS. Q. Okay. And where did you get it from? A. That's a, that's a -- I have to answer that with an explanation. Q. Okay. A. I thought it up. I made it up and I developed and I used it. I used it for about three years and then I, it happened, it's so common that it was on the PC Board, a place that was developed totally independent of me. I didn't have anything to do with, with the other. In fact, PC Board didn't make up that menu format. It's common. I wrote a stack of numbers, all those numbers you see. If you call those numbers, it dials in all over the country. Q. What numbers are those? A. Those are phone number for PC Board BBS's. Q. Okay. Now, if you, if you call up those numbers, would you at some point see a menuing screen? A. Yes, you would. Q. And is that -- MR. KITCHEN: Well, I'm going to object to essentially hearsay. This client is testifying about what they will see if they call up and access a BBS. THE COURT: Bring it down to Mr. James' own experience. BY MR. OSTROWSKI: Q. Well, have you seen BBS menuing screens in the past? A. Yes. I gave you a printout, and you have in -- THE COURT: The answer is yes. THE WITNESS: Yes. THE COURT: It seems that Mr. Ostrowski asks a question, and it's as though he pushes a button. We get a great rolling recitation. THE WITNESS: Sorry, Your Honor. BY MR. OSTROWSKI: Q. Okay. You've seen menuing screens on BBS's yourself? A. Yes. Q. Okay. Are they or are they not similar to the one that Mr. Graham showed you back in April of '91? A. They are. Q. How many of those have you seen that are similar to Mr. Graham's? A. Hundreds. Q. Now, going back to the, the Quick Basic program and the C program that you testified to, is the, is the C program a, a translation in some sense of the Quick Basic program? A. No. Q. It's not? A. No. Q. And when you say that it's not, what, what do you mean? What would it -- is it possible to translate one program into another language, just by translating the source codes from one language to another? A. A person can take the source code from one and follow the flow, and try to use that to simulate it in a different language. And I guess, no. They could, they could probably do it, but that's not the way I do it. THE COURT: The testimony is, it's not directly translatable, but one could be used by a person to produce the other, as a guide? THE WITNESS: One could, one could. THE COURT: All right. BY MR. OSTROWSKI: Q. Did you do that with respect to your developing the C version file retrieval? Did you use the Quick Basic as a line by line guide? A. No, I didn't. Q. Okay. MR. OSTROWSKI: Your Honor, I'd like to put a stipulation on the record that counsel and I have discussed lifting the confidentiality order with respect to Plaintiff's Exhibit 18 and Plaintiff's Exhibit 19, and he has agreed to stipulate that that is lifted so that Mr. James can now examine these documents. MR. KITCHEN: I'm not sure that I'm stipulating to lifting it, so much as I'm stipulating to the fact that the confidentiality would not apply. MR. OSTROWSKI: Well, then I'm asking that the order be lifted with respect to these two Exhibits, 18 and 19, because there is an order in place. THE COURT: As long as Mr. Kitchen takes the position he's announced, isn't it better just to proceed to do something and see when and if Mr. Kitchen screams? MR. OSTROWSKI: In light of some of the past history in my professional life, Your Honor, I would prefer -- THE COURT: I'm talking about the procedure here in the courtroom, and we don't care about your professional life. MR. OSTROWSKI: Well, Your Honor, I'm currently charged with contempt of Court in another part of this Court for violating a confidentiality order, and of course, I did not, but -- THE COURT: Well, I don't know what the situation was. I can't imagine that it would have been a circumstance when the party who was asserting the confidentiality was not present and was unable to voice an objection. Now, I assume that that situation that I just outlined obtains here. Consequently, if you start forth to do something, Mr. Kitchen can complain or not complain. If he does not complain, then there's no problem. Doesn't that seem appropriate? MR. OSTROWSKI: I'm just being extra cautious, Your Honor, in light of -- THE COURT: Why are you not protected by that procedure? MR. OSTROWSKI: I probably am being protected, Your Honor. I just don't see any reason why there can't be a stipulation or an order lifting the -- THE COURT: Mr. Kitchen doesn't want to proceed that far, or that definitively. If I gauge what he said. MR. KITCHEN: Your Honor, it's not my intention to sandbag Mr. Ostrowski. However, it's not my intention to expose my client to getting sandbagged by him. THE COURT: Well, you wouldn't, you wouldn't be sandbagging him because if he did something in your presence, in your client's presence, you didn't object to, you'd be I suppose waiving something. And you wouldn't be able to sandbag him. MR. KITCHEN: Right. THE COURT: Right. MR. OSTROWSKI: Let me just say, Your Honor, I blurted out something under the heat of the moment. Of course, I did not violate any prior Court order, nor have I ever violated a Court order. THE COURT: We'll put that statement into your dossier. BY MR. OSTROWSKI: Q. Mr. James, I'm going to show you Plaintiff's Exhibit 18. I'd ask you to look at that. Does that look familiar to you? A. Yes, it does. Q. Are you still examining that, or have you looked at it sufficiently? A. Yes, I have. Q. Okay. What is that document? A. It's my Files Data Base Manager. THE COURT: It's what? THE WITNESS: My File Data Base Manager. THE COURT: Manage. THE WITNESS: It's my File Data Base Manager. THE COURT: Manager. THE WITNESS: It's my retrieval program. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. Are there any differences, we're talking about Plaintiff's 18 right now, are there any differences between that and the program -- well, is that the program that you supplied to Mr. Graham? A. Yes, this is. Q. Are there any differences? A. No. I don't see, I don't see any differences. None whatsoever. Q. Now, with respect to copyright notices, are there any differences? A. Oh, except the, they removed my name. Because they removed my name, it won't, it won't work. This, this -- THE COURT: Well, we don't care about that. You do see that difference. The only difference you see is that your name has been removed, is that correct? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Is there a particular page on which your name would have appeared, or did appear at some point? A. Let me count the pages. Q. Well, let me strike that. That's not an important -- what would -- did you have a copyright notice on it when you gave it to Mr. Graham? A. Yes, I did. Q. And do you recall what that said? A. Yes. Q. And what did it say? A. Copyrighted by Larry James for the Night Owl Retrieval Service. Written by Larry James. Q. Now, you testified that you somehow encoded your copyright notice into the program, and why did -- what is the significance of that? A. To protect my, to protect my copyright. Q. How would your copyright be protected, exactly? A. Well, the words that I put in there was to allow Mr. Graham to use a single version, but not, not to do anything different, just use what I had given him particularly, and if, if it was modified, you know, to give, to give -- if anyone else used it besides Richard, that particular version, it was not to work. Q. How exactly did that -- what do you mean to say, not to work. How did that, how did you set that up so that that would not work? A. I put a algorithm to check for my copyright notice, my name, and if, if it didn't appear, it would say error 99, please contact the author. And I was looking and expecting -- THE COURT: Now, you're saying that this would prevent someone else from Mr. Graham for using it. Would it prevent some other person from using it as long as it had the same copyright notice that you had on there, copyright by you for Night Owl Retrieval, written by Larry James? THE WITNESS: The Night Owl Retrieval -- THE COURT: No. My question is -- THE WITNESS: The Night Owl -- THE COURT: -- can John Jones use that in the form that you gave it to Mr. Graham? THE WITNESS: Yes, he could. THE COURT: But he couldn't use it if modified. THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. On, showing you Defendant's Exhibit 1, have you similarly encoded your copyright notice so that it can't be tampered with? A. Yes. There is a veriable. Q. Do you know, can you locate in the program -- is that program numbered, that printout? A. It's numbered. Q. Can you locate without a great effort where that encoding program is located? A. What, the algorithm? Q. Yes. Or would you need time to look for it? A. The name of the algorithm is verify, and it would take me a minute to page through. Q. Well, see if you can find that without too much bother. Could you look at page 9 perhaps. A. That's it. Q. It's on page 9? A. Yes. Q. Okay. Could you just explain how that, that module, is that a algorithm, you said? A. It's a module that you started to say, algorithm is a type of module. Q. Could you just explain how that works, what does that -- THE COURT: You said it's a what, as opposed to an algorithm. THE WITNESS: It's a module. BY MR. OSTROWSKI: Q. How does that module work? THE COURT: A module, I take to be something, a physical unit or part. Is that what you mean when you say module? THE WITNESS: Yes, Your Honor. Sort of a element of the program that would function separately. THE COURT: And a module could contain or be an algorithm. THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Can you explain what the source code on that module means, and how it works? A. It accepts a character stream up to 80 characters, and it would test the line. When this is called, it would add each one of those elements of, each one of those characters. An alphabet is represented by, the letter E is ASCI code 65. The lower case e is, is 32 higher than that. The lower case a is 97. So what it does, it will add all of them together and return the value of what they all check out to. And when this value that causes verify statement, it would add those up on a separate, on a separate line, and compare the two. And if they don't, if they don't check out, then it will just say that, it will get an error 99, and just exit. Q. Well, but how -- A. This element is very simple and if someone wanted to look in the code, they could easily just remove this key. But if a person, normally they wouldn't have the code. Q. And how would this module know where to look, how does it know where to go in the program to check out the copyright notice? A. It's called. Q. Pardon me? A. It's called just before it goes into the screen to open up the directories. Q. What is called? A. That function. You see, a function is called, for instance, if you type in the word DIR and press enter, you know, you execute a command DIR. In a program it acts as, you just write that word down and subsequently as it comes down it will execute each one of those commands as if someone typed it in. And that's referred to as called. Q. Well, so you're saying that INT, I-N-T, space verify, et cetera is called, as soon as the program is up and running? A. It will let the user go a little while before it will come to that point. The reason I did that, is because hopefully I wouldn't want a person to know that, that it's, that what they did -- THE COURT: You don't want them to know exactly where the trap is. THE WITNESS: Yes, Your Honor. Or that it exists. But I would hope that they would think that their computer not, you know, functioned correctly, and they called me and say, hey, I'm getting an error 99. And then I'll know what they're doing. They're trying to change my copyright. BY MR. OSTROWSKI: Q. Okay. Now, let me show you Plaintiff's Exhibit 19. Have you seen that before? A. At a glance, yes, I have. It's identical to my programming style, my words, my functions are in here. They're not distributed in any library except my own personal library. These, these are my functions. Q. Have you had a chance to analyze this page by page? A. No. This is the first time I'm looking at this, this particular compilation. Q. Would you be able to look at it, take a few minutes and determine whether it's similar to your program? A. Oh, I, I can already tell. Q. Well, how can you tell? What pages have you looked at? A. The help function right here. This is not in any book. You would not find this anywhere. This character help lines Eagle and this is a text file that, that I build up to, to address various elements in the program. That, that structure in that line is, is perfect, and it will require my help function to run it. Just any program is not going to run that. My module -- and it helped. And you can call it by any name. You don't have to call it and it helped. But it has had the same structure to address these text files that are engraved into the program. THE COURT: What temporal schedule are we following today? MR. OSTROWSKI: As far as our break, Your Honor? THE COURT: Yeah, right. Being 12:10. MR. OSTROWSKI: I could go on for a few more minutes. THE COURT: Any lawyer could. MR. OSTROWSKI: Yeah. THE COURT: You're obviously, you're going on quite a lot longer with Mr. James on your direct examination. MR. OSTROWSKI: Yes. THE COURT: And you're going to have hopefully some showboating, I mean, with the machine. And then there will be, of course, cross examination. So I want to know what the schedule is. THE WITNESS: Well, I was calling the telephone company to come and install a telephone line to work. THE COURT: Sure. MR. OSTROWSKI: I think that I could finish with Mr. James, if I take the rest of the day. THE COURT: All right. So we should break for lunch. MR. OSTROWSKI: That would be fine, Your Honor. THE COURT: When should we come back? 12:11. 1:15. MR. OSTROWSKI: 1:30 would be better. I do have to go back to my office and check -- THE COURT: It's always bad going back to the office. I've tried to warn you against that. MR. OSTROWSKI: I do have a criminal matter that I have to attend to. Same one as last time. THE COURT: What do you have to do on that? MR. OSTROWSKI: 1:30 would be fine. THE COURT: All right. (Lunch recess taken.) THE COURT: On the record. CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. James, I asked you about Plaintiff's Exhibit 19 and whether you had ever seen that before. And what was your answer? A. This is my work. Q. Have you ever seen that actual physical document before? A. It's typed on different paper. That's not my typewriter or my printer, but that's, it's the work that I have done. And I, this physical paper I saw when you gave it to me just now. Q. Okay. Before the morning -- THE COURT: So your answer is that at least in seeing this particular thing, no, you haven't, but you recognize that what's embodied in it is your work. THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Have you had a chance to look at it over the lunch break - - A. Yes. Q. -- in more detail? And do you have an opinion on its similarity to Defendant's Exhibit 1? A. There's very little changes. If a person really took the time -- THE COURT: Wait a minute. You're saying, there are very little changes from Defendant 1 to Plaintiff 19, is that right? THE WITNESS: Yes, Your Honor. Almost all of the words are identical line by line. BY MR. OSTROWSKI: Q. The source codes? A. Yes. There's some additional comments that would help someone follow. I didn't put comments in mine, but someone put comments in this. Q. Why didn't you put comments in yours? A. That was one of my methods of protecting the, protecting the flow and protecting my property. Q. Do you work with other people when you develop your programs? A. No. I'm an independent, independent developer. Q. Okay. Do you have an estimate as to the similarity in the source codes between Defendant's Exhibit 1 and Plaintiff's Exhibit 19? Can you put that into a percentage number? A. I would say it's well up, 95%. The functionality in the words, it's identical, it's, the amount of differences is that there are some comments added. And my, my security has been removed, but just about everything else is there. THE COURT: Your security, you mean the copyright and also this algorithm? THE WITNESS: Yes, Your Honor. There is also, a part of the security was a serial number that I had given, appointed Richard. That's been removed also. There was an algorithm to check and make sure that it was a proper serial number. THE COURT: Serial number, you're saying? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. Why did you have a, why did you have a serial number in your program? A. To track, to track the distribution. Every customer that I sell to, I would like to know how much money that particular item is making. It's like one of my kids going out to work. THE COURT: How would that enable you though to know how much money a particular product is making? THE WITNESS: Your Honor, this one, serial number 0001, I have had an entry in my data base, and every time I would get a commission check, it would just be applied to that data base. THE COURT: Oh, I see. You would know how much because you would get paid on a per unit basis. THE WITNESS: Yes, Your Honor. THE COURT: Other than that, would you know? If someone was dishonest and didn't pay you, you wouldn't know. THE WITNESS: I wouldn't know but if I suspected I'd probably communicate with the person's manufacturer to, to insure that I was getting my fair commission. BY MR. OSTROWSKI: Q. Now, Defendant's Exhibit 1, with respect to that, where did you do the work in producing Defendant's Exhibit 1? A. Mostly my cab, and at home. Q. And what equipment did you use? A. My laptop and my regular computer. Q. And did you receive any assistance from Mr. Graham in writing the source code for Defendant's Exhibit 1? A. No. Q. By the way, did you use the menuing screen information that Mr. Graham gave you in putting, putting your file retrieval together with his system for the CD Rom? A. No. It didn't support my BBS. I used the, I used the support that was already in my BBS. Q. Now, just to, I may have asked you this, but just to get back on track, what form, in what form did you give Mr. Graham your C version of the file retrieval? A. In the executional form. Q. Okay. Is that this -- well, and did you see him actually operate the, the program in that form? A. Yes. Q. Do you know if that was -- did you see him before the release date of the CD Rom upon which your program appears? A. Yes. About three times a week. Q. Do you know from your own knowledge which CD Rom release has your C version on it? A. Version 41. Q. And do you know -- THE COURT: 41? THE WITNESS: Yes, Your Honor. THE COURT: What's that, 0041? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Is that PDSI? A. Yes. Q. Do you know approximately when that came out, was released? A. Late part of July of '91. Q. Okay. And prior to that release you saw Mr. Graham execute your program? A. Yes. As I said, about three times a week. The only reason I went over there at this point was to show him -- THE COURT: What point are we at? What time? THE WITNESS: A few weeks prior, last part of August and the first part of July. THE COURT: '91? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Did you see him gear up the program and run it? A. Yes. Q. Prior to its release on the CD Rom 4-1? A. Yes. Q. And did he see the copyright notice on there? A. Yes. Q. How many times would he have seen it in your presence? A. Hundreds. We, we would fire up and I'd show him the different elements that I'm adding, and he, he mentioned that, while he was looking at it, that it was so overwhelming that he was afraid that customers would be buying the disk just for my routine, just for my program. Q. Well, let me ask you this. Now, did he complain or make any objection to your copyright notice on the program? A. No. Q. Okay. And let me ask you, you testified earlier that the agreement that you reached with Mr. Graham was that you would be paid a dollar for each disk sold, is that correct? A. It was a dollar for each disk that had my program on it. Q. Well, did you listen to a tape recording of your phone conversation with Mr. Graham over the lunch break? A. Yes. Q. Didn't that refresh your recollection as to what the agreement you reached with him was? THE COURT: What did he listen to? MR. OSTROWSKI: Plaintiff's 16, Your Honor. THE WITNESS: Yes, it did. BY MR. OSTROWSKI: Q. Did that refresh your recollection? A. Yes. Q. What was the agreement regarding a dollar per disk? A. That, that I would be paid a dollar for every disk that he had manufactured with my program on it. Q. Now, I also, I asked you about, if you did work for lawyers, and you said you did work for Jeffrey Friedman? A. Yes. Q. Have you thought further about that answer? A. Yes. Q. And -- THE COURT: Excuse me. Has he talked further about his work with Mr. Friedman? MR. OSTROWSKI: No, I'm sorry. Has he thought further about it. THE COURT: Thought further. MR. OSTROWSKI: Thought further. THE COURT: I see. BY MR. OSTROWSKI: Q. Is that, was that the correct answer to that question? A. No. Q. And what is the correct answer? A. The Friedman, is Gary Friedman. Q. Gary Friedman? A. Yes. Q. Okay. Now, were you in Richard Graham's office or -- did he have a home office during, say April through July? THE COURT: You mean, did he have an office at his home, or did he have a home office? BY MR. OSTROWSKI: Q. Was his office in his home? THE COURT: Where was his office? BY MR. OSTROWSKI: Q. In mid 1991? THE COURT: Where was his office? THE WITNESS: It was on, that address is on the disk. Right near Grant Street and Delevan. BY MR. OSTROWSKI: Q. Potomac? A. Potomac, yes. Q. Okay. THE COURT: Was that where he lived? THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Did you have occasion to be in his home office from April through -- THE COURT: In his office. BY MR. OSTROWSKI: Q. In his office from April through September of 1991? A. Yes. Q. Were you there when he was filling orders for CD Roms? A. Yes. Q. And did you observe the quantities of CD Roms he was selling? A. Yes. Q. And were you, did you learn of the prices he was selling them for? A. Yes. Q. Okay. Can you -- how many days were you there when he was actually filling orders? A. Between July and -- July, August and September, I was there just a few hours at a time, about three times a week. Q. Now, do you recall any particular days when he was filling orders in which you could remember what, how many dollars worth of orders he had filled for CD Roms, dollars worth of orders? MR. KITCHEN: Your Honor -- THE COURT: Your answer would be yes or no. MR. KITCHEN: -- I'll object to the relevance and the competency of the testimony he's about to give. If he was only there a few hours at a time, three times a week, he's obviously not in a position to give relevant evidence as to what the volume was. THE COURT: No. Except within the allowability of extrapolation. Seeing the amount that would go out in one hour would maybe tell him the amount that went out in eight hours. Extrapolation. MR. KITCHEN: Well, I understand the principle of extrapolation, Your Honor, but it seems to me that there would have to be as a foundation there that there was some relationship between the hours that he was there as opposed to the rest of the hours in the week that would permit such, I mean, a constant state must be -- THE COURT: True. MR. OSTROWSKI: The law of averages. THE COURT: True. MR. OSTROWSKI: That's the foundation. THE COURT: But it's not without some relevance or reliability. How much, I don't know. BY MR. OSTROWSKI: Q. Can you recall a specific day when he was selling, upon which day you can recall what he, how much he was selling? If you understand that convoluted question. A. He showed me figures. Q. Okay. THE COURT: Excuse me? He showed you figures? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. What kind of figures did he show you? THE COURT: When did he show you figures? THE WITNESS: August. He showed me figures in August because he was trying to get me to come in in September. BY MR. OSTROWSKI: Q. Well, what kind of figures? THE COURT: When in August. THE WITNESS: Around the middle of August. Well, around the second week in -- well, in August he started showing me at least once a week figures. That was the reason why I was waiting for the question, if you ask the question. THE COURT: What question? THE WITNESS: He, he was not giving me, the disks that were being sold, he wasn't giving me direct money. He said he wanted to get some equipment, but, and he was showing me -- THE COURT: He was deferring payments to you? THE WITNESS: Right, and he was showing me the bank checkbook that was growing, and he'd say, when this number becomes this number, and it was growing at a rate of about, about a thousand dollars a day, and he had gave me a forecast in September that he was going to start paying me my commission. THE COURT: Start paying your commission as of that time? THE WITNESS: That's what he was saying in July, in August. THE COURT: No. I'm just trying to understand. Did he say that he at that time would start paying you commission on items sold from that point, or earlier? THE WITNESS: He was going to pay me my fair commissions on the disks that were being sold, but he needed to build up the money, build up the bank account. His, his words were, Larry, I, I'm a business man, I own my own garage, and it takes money to make money. Just be patient, and we're going to build up this account. And he was showing me, that's how I knew what was being sold. I saw the orders coming in and I saw the check, the checking account as it was growing. BY MR. OSTROWSKI: Q. And based on your seeing those figures, can you tell us, can you give us an estimate of how many CD Roms he was selling and -- MR. KITCHEN: I'll -- THE COURT: There must be better evidence of this that's been available to you, Mr. Ostrowski, through discovery. MR. OSTROWSKI: Well, Your Honor, what -- THE COURT: No. This would be totally unreliable. Certainly far from the best evidence. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Now, did you receive the $1,000 for the first version that this C program was put upon, put on? A. No. In confidence I allowed him to build up his account. THE COURT: Your answer is no? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Did you receive a dollar for each disk produced? A. No. Q. Did you have discussions with Mr. Graham about when those things would happen, you would be paid? A. Yes. Q. And what did he say, and when did you discuss that with him? A. In August and September. Q. And what did he say about when you would be paid? A. He said as soon as he build up his account. I think he, he gave me a figure. It was about $60,000. Q. Okay. And did there come a time when you did receive some payments from Mr. Graham? A. He gave me supplements. THE COURT: Gave you what? THE WITNESS: Supplements. THE COURT: Supplements. What do you mean by supplements? THE WITNESS: A few times I came to him and told him I needed some money for expenses. THE COURT: He loaned you money? THE WITNESS: It wasn't a loan. It was an -- THE COURT: Payment on account? THE WITNESS: Yes, Your Honor. THE COURT: Is that what you mean by a supplement? THE WITNESS: Yes, Your Honor. THE COURT: All right. MR. OSTROWSKI: I'm looking for the checks, Your Honor. BY MR. OSTROWSKI: Q. Now, Mr. James, did you receive some checks from Mr. Graham? A. Yes, I did. Q. And do you know roughly what those, how many checks there were? A. About three or four. Q. Okay. And did you have some discussion with -- those are the checks that were introduced into evidence in this case? I'm sorry. You haven't -- I'll strike that. Did you have some discussions with Mr. Graham about what those checks were for? A. Yes. Q. And what did he say they were for? A. They were on account, to be deducted from the money that I would eventually be paid. It was just operation expenses that I needed that I came to him for. Q. Showing you Plaintiff's Exhibit 12, can you identify those checks? Could you look on the back as well? A. Yes. These are the checks. Q. Okay. Did you sign those checks and deposit them? A. Yes, I did. Q. Okay. These checks were to be applied to the amount he owed you? A. Yes. Q. Pursuant to your agreement. Now, what -- do you know which exact version of your C program Mr. Graham actually used on the CD Rom? A. What do you mean? Q. Well, let me -- THE COURT: You don't understand the question? THE WITNESS: Right, Your Honor. I don't. MR. OSTROWSKI: I'm trying not to ask a leading question. THE COURT: Pardon me? MR. OSTROWSKI: I'm trying not to ask a leading question. THE COURT: Well, we're trying to keep you from asking leading questions. BY MR. OSTROWSKI: Q. Did, did your, did the program that you gave Mr. Graham that ended up on the CD Rom, the C program, did it have any writing on it or numbers on it that would tell you that it was some particular edition or stage of development? A. It was probably -- THE COURT: No. You're getting into probably. I don't know how much weight to give your testimony when you say probably. BY MR. OSTROWSKI: Q. Let me ask you this. You've heard -- A. If I used -- since it was the first time that he himself was using it, it most likely was version 1. Q. Okay. Let me ask you this. You've heard testimony that the program you gave him did not allow someone to use a monochrome, black and white monitor, is that correct? Have you heard that testimony? A. Yes. THE COURT: I don't know if I have, but if it's in the record, I have, I guess. THE WITNESS: The version that I gave him was a beta version. BY MR. OSTROWSKI: Q. Well, okay. Well, what I'm asking you is, did your program, in fact, that you gave him and that he used, did it support a monochrome monitor? A. No. It wasn't completed. He wasn't supposed to -- Q. Why not? Why did your program not support a monochrome monitor? THE COURT: Other than not being completed? THE WITNESS: I had agreement with Richard -- THE COURT: Wait a minute. I'm trying to get this straighten out. See where we are. MR. OSTROWSKI: I'm trying to, I'm trying to ask, I'm trying to follow the question and answer format, Your Honor, and, so that the witness does not give a narrative. I think it would be preferable if it was question and answer. That's why I interrupted him. BY MR. OSTROWSKI: Q. But you were about to say -- well, did the program that you, the program -- where's my grammar here, fifth grade, was the program that you gave him that he used a completed finished product, yes or no? A. Yes and no. Yes on its perspective and no in some. Q. Okay. In what sense was it not complete? A. I had marked, I had given, assigned him a serial number, but I had marked it and removed the beta out of the distribution disk. Q. What does beta mean? A. In still testing, in testing. Q. And did it have beta on it, the program that you gave him that he used? A. Yes, it did. Q. Okay. A. It also -- Q. And what does that indicate, when something has beta on it, or when one of your programs has beta on it? A. It's for evaluation and not for immediate publish, and that's what comes on the screen when you fire it up. Q. Okay. So Mr. Graham used a program that you did not intend him to use on his finished product? A. Yes, he did. Q. Now, were there any modules on your program that really, that were not used in his first, the first release in which he used your C program 4-1? A. Yes. Q. And why would that be? A. It's a collection of libraries. There was modules in it to, to produce disks, to pull disks from my BBS and, and distribute them, distribute floppy disks for resale. Q. Now, let me ask you -- A. You could see the comments, some things that are commented out. It's according to a customer, whatever a customer wants. I would just put that in, uncommented, for the customer. Q. Let me ask you this. There's been some testimony about a Robert Depew disk. Where did you, where did you get that, did you write a program for Depew? A. Yes, I did. THE COURT: A program for what? BY MR. OSTROWSKI: Q. Mr. Depew. And did you receive a CD Rom from someone in order to allow you to write that program? A. Yes, I did. Q. And who gave you that CD Rom? A. Richard did. THE COURT: When does a, when does a piece of metal become a CD Rom? In other words, can you have a metallic disk that's a CD Rom, or is it a CD Rom when the data is in-built into it? THE WITNESS: It would probably be referred to a CD Rom when it's prepared for assembly and data into it. THE COURT: So somebody like, I can't remember the names of the manufacturers, but someone who actually produces the CD Roms, manufactures them, obviously starts with a plain disk. THE WITNESS: Yes. THE COURT: And that's not a CD Rom at that point. Nothing on it. THE WITNESS: Yes, Your Honor. THE COURT: It's not a CD Rom. THE WITNESS: Right, Your Honor. THE COURT: It's a disk. THE WITNESS: Technically right, Your Honor. Absolutely. BY MR. OSTROWSKI: Q. I'd like to show you Defendant's Exhibit 1 and ask you to go through that program and discuss the highlights of the program and explain what they are. THE COURT: It's not in evidence. MR. OSTROWSKI: I'm sorry, Your Honor. I thought I had moved it into evidence, and if it's not, I'd move it into evidence at this point. MR. KITCHEN: No objection. THE COURT: I see. Defendant 1 is received. (Defendant Exhibit 1 received into evidence.) THE WITNESS: Start? BY MR. OSTROWSKI: Q. Yes. A. The first page is a column of declarations. I decide virus functions. The first few functions are header, considered, they're called header files, and -- THE COURT: Called header files, H-E-A-D-E-R? THE WITNESS: Yes, Your Honor. These header files have some declaration in them similar to the first page that's here, that are distributed with a programming language. The second blocks of text is, is declarations that I have to assign a name to numbers when you -- every key that you hit on the keyboard has codes that are scanned. And for the up arrow if you hit the up arrow there's a code of 18,432. THE COURT: So this is a declaration of codes for, which particular keys would utilize or trigger? THE WITNESS: When you -- yes, Your Honor. THE COURT: All right. THE WITNESS: When you hit a key, a number is correspondent into the computer's memory, and rather than use a number every time I refer to the up arrow, I'll refer to the word up arrow and that -- THE COURT: Up error, E-R-R-O-R? THE WITNESS: Actually it's U arrow, U-A-R-R-O-W. I wanted to kind of shorten the typing by shorthanding some of my writing. THE COURT: I see. THE WITNESS: And I also chose words that were descriptive. Since I didn't want to put comments in it to facilitate anyone that might want to try to steal my program, I use descriptive language for the modules that I create. The next block of text assigns various declarations to other string variables I will use later on in the program. For instance, a line count, a line pointer, zip pointer, highlight. Those different things, when, later on when, in the program, any time I want to know which line I'm on, I just use the word line count. I don't have to write a description and say, this is a module to decide which line that I'm on. If I see, if I'm using a word, if I'm studying a line that I'm on, I just use the word line count and it, the, the text has itself. After the lines I started setting up a declaration of strings and the first string that I put in was -- THE COURT: What, a declaration of? THE WITNESS: Declaration means to declare. THE COURT: Declaration of what? THE WITNESS: Strings. THE COURT: Strings? THE WITNESS: Text that's built in -- THE COURT: S-T-R-I-N-G-S? THE WITNESS: Yes, Your Honor. THE COURT: All right. THE WITNESS: Text that's built into the code. The first block of text is my copyright ID and the next block of text is the serial number for the particular customer that this particular copy is being distributed to. The, the copy, the manuscript copy, no one will actually ever see it and actually ever have it. But once I compile that copy for an individual customer, as I said, the next page is the one, that page right there. THE COURT: Wait a minute. You're pointing me to page 2 of Defendant's Exhibit 1. THE WITNESS: Yes. Once I compiled this, all this text would appear inside it, including the serial number which, which this is generic and that's what makes this a beta copy, by not having a serial number in there. If a person takes a editor, and pop up, you can take a binary editor of, of regular programs that are executable programs that you can't read, and put it on the screen, and you can change text inside it, and the program will still operate. So, so I put an algorithm an algorithm that's called veri serial. That would verify the serial number and if the serial number matched the serial number that I had given to that individual, in this case, 1 for this one, it would remove the word beta and remove the word evaluation copy only. The next, after the serial number, is general blocks of text information for my help screen, and I have never seen this done anywhere before. I would take and put a word in a bracket and then describe, put a little block of text, first in this first block says general, and after that block it says on most of the screens the command variables are on the top and the bottom status lines. That mean whenever a person is in anywhere in the program to hit F-1, if I didn't put a special association with that particular key on that screen, it would just pull up a general screen and tell the individual what they can do from there. And going down further -- THE COURT: Page 3? THE WITNESS: Page 3 is -- THE COURT: I notice you flipped the page. That's why I made that -- THE WITNESS: It's a continuation of the same strings with the same agorithms that I described. And page 4 is where it goes into the first function. And this function is called main. Every program -- THE COURT: It's called name? THE WITNESS: Main, M-A-I-N. THE COURT: Oh, main. THE WITNESS: Yes, Your Honor. This, the main function is when you compile a program it can be called anything, but the compiler, it looks for the word main so it will know where to start. That's the first thing that runs when you first turn the computer on. So in this particular case, the first thing I do is write a algorithm to pull off whatever parameters were passed on the command line to the program. For instance, if you type -- THE COURT: That would be a code number that you would insert that would accomplish that. THE WITNESS: Right. If you type I, the program would actually go in and, and do a first install of the CD Rom retrieval. It will go on the hard drive and create -- it will prompt the user for where, what the name of the CD Rom drive, and will create the necessary files. After main, in that main function, all the other functions that run are called somewhere in this particular program. It stays -- THE COURT: Parts of the main? THE WITNESS: Yes, Your Honor. It stays in that, that block of, that module. MR. OSTROWSKI: What do you mean -- THE COURT: That general category. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. What do you mean by called? A. If you type in a command on, on the, on the computer, for instance, if you typed in WP to bring up Word Perfect, and when you press enter, Word Perfect comes on the computer screen. That's, you actually called Word Perfect by typing in and pressing that command. What happens, when the program is running, it subsequently goes on each line and subsequently it will run those programs as if it was a DOS command being typed in, or run those modules as if there was separate DOS commands that were typed in. THE COURT: Now, Word Perfect to me as a lay person is a particular program, isn't it, or language? THE WITNESS: It's a program. THE COURT: Yeah. THE WITNESS: And I use that as an example because each one of these modules runs as if they were a separate program. They would hardly run individual because they're dependent on other modules, but while they're running, they're running just as if they were a program. I'm up to page 5 which has various elements of, of declarations. By default, it's setting up the environment, and it would test and look into the computer's memory, there's a DOS command called set. If you type set and press enter -- THE COURT: Type what? THE WITNESS: The word set. MR. OSTROWSKI: S-E-T. THE WITNESS: S-E-T. THE COURT: S-E-T. THE WITNESS: Yes. What it would do is, is show you the environment of your computer. For instance, you would -- it will tell you where the command com is located. It will tell you where the, how much files you have set aside for running programs, and it will tell you the path of, that would be searched when you type in a command. And then, in this case it will tell you whether Night's Hour, the Night's retrieval has been installed or not. So -- BY MR. OSTROWSKI: Q. Why is that important for the user, that module? A. It would, if that variable is in the computer's memory, when you type Night, it would just go out and use the programs that's on the hard drive. In this particular case, I wrote X equals, get environment, and it go -- THE COURT: X equals? THE WITNESS: Get environ -- THE COURT: Death? THE WITNESS: Get. MR. OSTROWSKI: G-E-T. THE WITNESS: G-E-T, E-N-V-I-R-O-N. That's, that was sort of a shorthand method for get environment. And like I said, rather than writing a comment, this is a routine to get to the computer's environment. I call the routine, get environment, or get environ. And the next line says, if X is, equals to one, new environ equals one. BY MR. OSTROWSKI: Q. Let me ask you, do you recall when Mr. Swanson was testifying? A. No. Q. And -- A. He made reference to -- Q. Did he have some trouble -- well, did he make any reference to that particular module, in his testimony? A. He said that it was, it was -- THE COURT: Your answer is yes? MR. OSTROWSKI: What did he say? THE WITNESS: Yes, he did. BY MR. OSTROWSKI: Q. What did he say? A. He said it was redundant because it called so many times. Q. Is it redundant? A. Absolutely not. Q. Did you observe Mr. Swanson when he was operating the computer and executing various versions of CD Roms? A. Yes, I did. Q. And did he have any problems at that time? A. Yes, he did. Q. Were those problems related to this -- A. Most of them -- Q. -- this module, in any way? A. Most of them were. Q. In what sense were they related? A. He removed this, this, what he called redundant, he removed the new config because he said, you know, if, if you install the program and got a configuration, why should you check to see if that configuration is there. And he removed it. And this was very critical because if you put in a different disk, then the program recognized, sees it as a configuration, and all, and it's, you go to run it, but the configuration don't match that other disk you got in, and so it keeps crashing. And then you got to go in and delete everything so that you can put another disk. Q. Now, did that in fact happen in the courtroom? A. Yes, it did happen, and, and there was, there was some mention that maybe, you know, see, when a person get a CD Rom disk they have a totally blank computer and you won't have this problem. But see, very few people have a blank computer. A lot of people have a stack of CD Rom disks, so they are going to have a problem as long as this here is out. You have to put this in there because they're not going to run a new computer. Q. Is -- A. And most people won't know how to go in and delete all the configuration files just because they're changing disks. Q. Is that what Mr. Swanson in fact did to solve the glitch? A. Right. He had to delete the files, and even him, it took him a while to recognize, wow, you know, like all these, you know, what's going on. I knew what was going on all the time. The program -- Q. Is it -- A. -- had this configuration he had to -- Q. Is it helpful to -- THE COURT: Can the Court just say, whoa, let's get back to a question and answer. MR. OSTROWSKI: I'm sorry, Your Honor. BY MR. OSTROWSKI: Q. Well, is it helpful to a user of computers to have to delete lots of stuff on your computer before you use a CD Rom? A. It's probably more aggravating than helpful. It probably make him decide to just set it down. Q. Okay. Continue then with the general question of explaining the highlights of the program. A. The next, next line is, is, the next few lines, it has my routine that creates the screen. There was a lot of testimony that was made to say that there's a lot of, there's only one way to clear the screen, but I don't, I don't clear the screen necessarily. You know, see, a person can clear the screen and then put something there, but if you clear the screen and then put something there, there's a blank and there's a pause and a flicker. Some time you might decide to just paint the screen. I mean, if you clear the screen then it's black and there's nothing there. But instead of just clearing the screen, you can paint the screen blue, or paint the screen another color. So that there's a thousand ways of doing things, and very few people would just, would just all of a -- THE COURT: What you're saying, if it's solid blue or pink or vermillion, it's not blank. THE WITNESS: Well, if, if -- THE COURT: Is that what you're saying? THE WITNESS: Yes, Your Honor. THE COURT: All right. THE WITNESS: So, so I have a routine that's called screen one, and this, this routine, what it does -- BY MR. OSTROWSKI: Q. Is that on page 5, is that what you're talking about? A. Right. Actually, I'm going through the pages, but some of the routines -- THE COURT: Are you on page 5? THE WITNESS: Yes, I am on page 5. That routine is not page 5, per se. It's been called from 5, but actually -- BY MR. OSTROWSKI: Q. It's on another page? A. Yes. Q. Okay. A. That's why, after we go through half of it, we'll be through the whole thing because most of the modules is in the back, would have been called and expressed it. Q. Okay. You can continue with the highlight question. A. After -- so I do my routine with the screen one, and what it does, it paints a default screen rather than just clear the screen. There is a command in the C language and any other language to clear the screen, and the other DOS command calls CLS that clears the screen. THE COURT: Now, a default screen might be a solid color screen? THE WITNESS: Yes, Your Honor. THE COURT: All right. THE WITNESS: So, so as I was saying, my screen functions, it prepares the screen and paints the screen and colors the screen, not just clear the screen. Sometimes clearing the screen is part of that paint. And also, when you do clear the screen, there are set-ups you do. If you set your screen attributes to your preferred color -- BY MR. OSTROWSKI: Q. What's an attribute? Are you talking about colors? A. Right. Attribute could be, the text is red and the background is blue. That would be an attribute. So if you do that and then type CLS it will clear the screen but the whole screen will be blue. If the attribute is normal, black background and white text, you clear the screen and the screen will be black. So the professor, I really appreciate that he said there's one way to clear the screen, but there's a million ways to be colorful and creative to paint and create, you know, the environment that you want. There's no way that this here, that I came up with with my own libraries and compiled together, you never see them done this way anywhere else. The next significant module is, is if X equals DIR, and then it's got two equal signs, one, and then, then it's got another function, new config. This, this is what -- Q. That new config, that's already in there. Isn't that redundant? A. Right. The one that's up here is the one that runs when you first start the program. The one, the one here runs every time you paint that category screen, every time that category screen is painted, this one runs. It won't necessarily run, it's right there, but it won't, it won't run. The only way it will run is if an arrow comes right here, but the user would never see the arrow. That's why, there was a reference that said, like, why should, why should every function always return an integer. Why should they return an integer. The reason I put these integers for the function to return to integer because when a command is, is executed, I want to know, the program wants to know whether it was a successful command or not. And it's not up to the user to decide whether it was a successful command. The program would know and work accordingly. And right here, that one word, new config, it will never run, it will never run and he did testify that that would, that doesn't hinder the program. He saw it there but he didn't know why it was there. Q. By he, is that -- A. Yeah. Swanson saw it there but he didn't know why it was there, so he just thought it was dangling. But it's not dangling. But he did study it enough to notice that it would not cause any slowdown or anything in the program. Q. Okay. A. And it may not be called, but some time it will be called and that's why that one right there, if there's a return of one, and then, it would just go and run that program. And it would have done that about three or four times during his presentation. Q. You mean, when he had glitches? A. Yes. And the next, next function I have is get, get DIR. This get DIR, what it would do is get the actual directory that the user picks, after the DIR paints the screen with all the directory categories. Then the get DIR would get the particular character that the person types in. If he types in one, then it will pull up the DIR. And I do have a demonstration of PC Board that, that has all these DIR files that I have been using, as I mentioned, for a number of years. So I'll go, the next page -- Q. What page? A. Page 6. It, it checks for various parameters to see what the user is going to do after he has gotten his directory lesson. And according to what command lines that he would do, it would execute those command lines, and it goes down. Most of this next page, in fact the next few pages, are functions. And you can tell a function by, in it, and as I said, there was testimony that my functions are kind of redundant because they're all returning integers, and they don't have to return integers. But I did that, like I said, as a test to make sure that they work okay. The first one, the check -- I'm trying to pronounce them the way they're written, they're shorthanded. It stands for check parameters. THE COURT: Why don't you spell them? Why don't you spell them? THE WITNESS: Check, C-H-E-K, P-A-R-A-M And that's what check parameters, and that's to decide what type of parameters that a person would type in the command line and interpret so. The next, next function is integer help. THE COURT: Is what? THE WITNESS: Integer help. This, it's the help function. THE COURT: Enter help, or what are you saying? THE WITNESS: It's, it's -- THE COURT: What are you saying? THE WITNESS: Integer help. THE COURT: Energy help? THE WITNESS: Yes, Your Honor. THE COURT: All right. MR. OSTROWSKI: Do you mean integer? THE WITNESS: Right. THE COURT: Integer. MR. OSTROWSKI: Integer. THE WITNESS: Right. THE COURT: I-N-T-E-G-E-R. THE WITNESS: It's declaring this function -- THE COURT: Is that what you're saying, I-N-T-E-G-E- R? THE WITNESS: Yes, Your Honor. What this, this prefix is doing is declaring that the return of this, five more minutes, I would have -- MR. OSTROWSKI: I notice that he's been at this, Your Honor, for about 20 minutes. BY MR. OSTROWSKI: Q. Let me ask you this, Mr. James. What page are you on now? A. Page 6. Q. Now, could you continue to the end and explain the entire program? THE COURT: The end of what, 6? MR. OSTROWSKI: The end of the program -- THE COURT: Well, he said then there are several pages of functions, is that what you -- after 6? THE WITNESS: Yes. Yes. Right. Then, most all the pages now are functions that, that were called from the main. Each one of those functions would call another one of the functions. BY MR. OSTROWSKI: Q. Is there a way you could take maybe five more minutes and give us the highlights of the highlights. A. Okay. I'll just -- Q. Let me ask you this. Could you, could you explain every line of code in that program as to its purpose and logic? THE COURT: Just yes or no. THE WITNESS: Yes. MR. OSTROWSKI: Okay. THE COURT: Don't. THE WITNESS: All right. Turn a few pages and point, and -- BY MR. OSTROWSKI: Q. And could you continue on discussing each page according to its general logic and highlights? THE COURT: Yes or no. THE WITNESS: Yes. MR. OSTROWSKI: I'm not going to take any more time on that. THE COURT: Shall we take 10 minutes? MR. OSTROWSKI: That's fine, Your Honor. THE COURT: All right. (Recess taken.) THE COURT: How long are you looking to continue today? MR. OSTROWSKI: I was going to break up the testimony and ask him to go through the CD Rom's on the computer. Then - - THE COURT: That doesn't answer my question. MR. OSTROWSKI: Whatever, whatever time -- THE COURT: What is your wish? Not that it will be granted, but what is your wish? MR. OSTROWSKI: Another hour and 15 minutes. THE COURT: No problem with that. That's all you want, 4:30? MR. OSTROWSKI: Well, I, I may not be done today, Your Honor. THE COURT: Well -- MR. OSTROWSKI: Naturally. THE COURT: -- I anticipate that. MR. OSTROWSKI: I'll try to get a chunk -- THE COURT: I will run to 4:30 today. Go ahead. BY MR. OSTROWSKI: Q. Mr. James, I would like to ask you to step down to the computer and I'll ask you some questions there. (Witness steps down.) THE COURT: This something you want the trier of fact to be observing? MR. OSTROWSKI: I would think so, Your Honor. BY MR. OSTROWSKI: Q. Now, Mr. James, showing you Plaintiff's Exhibit 1, what, what is that? A. It's a CD Rom disk. Q. Which version? A. It's version 1. Q. Can you, is this a standard computer here? A. Yes, it is. Q. Okay. Whose computer is it, by the way? A. It's yours. Q. Okay. Can you put that CD Rom in the hard drive and fire it up? A. Run the program? Q. Yeah. Well, yeah, fire it up. A. First I do a directory, check and look on it and see what executable files I see. On this, this particular disk there is only one executable file. I'm familiar with that tool. It's PK UNZIP. Q. Okay. And that's, is that the only thing you can do at this point is unzip stuff? A. Well, actually, since there are no significant executable files, I would list the categories. I would take some kind of utility, the text editor, a word processor, to look at the text and see what's there. Q. Have you, well, hold on. Have you seen this, have you seen the CD Rom before? A. I saw it when, when Court started last month. Q. Okay. A. I mean, this month. Q. Is there a file retrieval -- A. October. Q. Is there a file retrieval program on this CD Rom version? A. No, there isn't. Q. Okay. What did you do there? Did you -- A. I called up Word Perfect, something to, to edit files or look at text files. Q. Okay. And without a file retrieval program, what would you do in order to -- is it your suspicion that there's some executable programs buried in there? A. Yes. Q. What are those IBM numbers there? A. Word Perfect has a way of showing you what's a text file and what's a directory file. It puts the word DIR in file names that happen to be a directory. Q. I'm going to ask you to back out of Word Perfect and go back to DOS. Now, you're at the basic DOS stage. How do you get into these, into the CD Rom to find out what's on it and use programs? What would the first thing you would have to do? A. When I go to a computer, the first thing I do myself is type DIR. I'll act a little bit different than most people, and usually I'll have a disk in my pocket with one of my utilities on it. I'll put it on there, which I would do if Basic or Word Perfect just did. It will give you a menu. Q. Well, I'm just saying from DOS. Not everybody has Word Perfect, do they? A. Right. There's a text file right there so I would type that text file to the screen. Q. Okay. Why would you do that? Which is the text file? A. The file that ends in a TXT. Q. Okay. Why would you do that? A. I don't have it. Q. Okay. Well, why don't you do that and see what we come up with. Okay. What, what do you see there? A. It was some instructions. It went by kind of fast. Q. Well, what about the instructions, are there instructions on the screen? A. Yes. Q. And do they tell you anything about how to get into the CD Rom programs and use them? A. Let me see. The most efficient way is to use the pick utility that was applied and the root directory of the disk -- Q. Is that -- I'm sorry. A. -- typed pic not text on using this disk. There's no such file. The only text file is the one I just listed to the screen. Q. Well, in your opinion, what is the fastest way to get into the CD Rom programs and use them, from DOS? A. In my opinion, this is very cryptic but this is very common during those times. I myself, I always put a menu in all my computers, but a lot of people, when they have their computer, their hard drive is just like that and no difference. They have to type CD and a lot of DOS commands to get started. Once they get a program that they're familiar with, then they type that familiar sequence. Q. What I'm asking you is you, what happened when you went into that text file, did it give you any useful information? I guess that's -- A. Well, it made reference to, to another text file. I think that probably is an error because the text file is not on there. Q. Okay. What would the next thing, what would the next logical step be to get into the programs and use them, based on your knowledge? A. On my knowledge, I would just go, I did a DIR so, so I would read the -- I would probably spend some time reading that text file. Q. What are you doing now? A. I'm going to type that text file through more. THE COURT: Same thing you did before. THE WITNESS: Right. THE COURT: Same thing you did before. THE WITNESS: Right. This time I'm typing it through a DOS utility called More. That utility, that utility is not something that a lot of computer users would be familiar with. Oh, I see what the problem is. THE COURT: It doesn't seem to like what you're doing. THE WITNESS: Right. Because you can't do it from that -- okay. I'll try it again. Type -- it will come up this time. This is not something that a person would normally use. That's why I put menus on systems. Okay. Now -- BY MR. OSTROWSKI: Q. What do you have there? A. It's a text screen. What I have just done, done now, like I said, most people wouldn't do it, most people would type it to the printer, and most people are not familiar with -- I myself wouldn't have trouble. You can't make anything cryptic for me, but the average person would not be able to use this disk. Q. Okay. A. Except, except to pull programs up and, you know, they'll probably print out that directory list, have a catalog of all the files on the shelf somewhere, when they need something, go directly to it, copy off and put it on the -- MR. KITCHEN: Your Honor, I'll object to the opinions offered by the witness as to what a person, a theoretical person would or would not be able to be, to do. He's not been qualified as an expert. MR. OSTROWSKI: I think he has. THE WITNESS: I'd have -- MR. OSTROWSKI: He's testified that he's a tutor, a teacher, he's familiar with all levels of computer users. MR. KITCHEN: He's testified that he taught my client how to read and write, but I don't think he's -- MR. OSTROWSKI: And your client apparently hired him to -- THE WITNESS: If anyone is -- MR. KITCHEN: I don't think he's qualified as a reading teacher, and I think there needs to be more qualifications than what has been displayed before he can speak with an expert opinion about what people do and what people don't do -- THE WITNESS: What I described -- MR. KITCHEN: -- seeming to speak for all, all computer users. THE WITNESS: Everybody -- THE COURT: If you have objection as to his lack of expertise in saying what other people do or so forth, I'd sustain the objection and have Mr. Ostrowski demonstrate that he has that background. THE WITNESS: Everybody in this courtroom -- BY MR. OSTROWSKI: Q. Are you familiar -- how many people have you instructed in the use of computers? A. Many tens. Q. Well, how many? A. Maybe -- there's 1,500 users that called my board and I teach them computers. I call them up on the voice, on the telephone. This morning I was up to about 2:00 o'clock, giving -- THE COURT: So was I, on the football game. THE WITNESS: -- giving consulting, I'm a consultant. BY MR. OSTROWSKI: Q. Well, are you saying at least 1,500? A. Well, not all 1,500 use me for consultant, but a very large number of people, they call my board and I type, I physically type in responses, about 15 or 20 responses to questions a day. In the course of a month I might type a thousand responses to questions, teaching people and giving advice, and I give free advice to people that call my board. And people do call me for consulting, and my fee is $35 an hour. And it's a real good example what I just said as a generality, everyone in this courtroom, except maybe, I don't know Richard Graham and his attorney, but everybody else in this courtroom would probably fall in the category of what I just described about how they would approach this system. They wouldn't know what to do. Q. Let me ask you this. Have you taught people how to use a computer that didn't know anything about computers? A. Yes. Q. Are you familiar with the level of skill of people just learning computers? A. Yes, I am. Q. Are you familiar with the level of skill of people who have used them for just a couple of years, casually? A. Yes, yes, I am. I even watched Mr. Kitchen in his development. He's getting good now. MR.OSTROWSKI: Well, I submit that there's more than a foundation for him to testify. THE COURT: Well, I'm going to allow the testimony without endorsing or not endorsing Mr. James as an expert. Obviously I am the trier of facts. We're not putting anything before a jury who might be misled by an opinion from someone who doesn't have the proper qualifications. I can weed that out along with other factors and characteristics of Mr. James' testimony. MR. OSTROWSKI: Okay. THE COURT: For example, that he's a party, interested party in the lawsuit. BY MR. OSTROWSKI: Q. Now, did you say that the menu that you have there, shareware C.A.R.R.S. menu, you used a command to get to that that most users are not familiar with? A. Yes, I did. Q. And what was that command again? A. More. Q. Okay. And now that you're here, what is the next step in getting into the individual programs and using them? Let's say, communication programs? A. I would -- Q. What did you just do there? A. I know if you hit a key, if I wanted to break out of, I'd hit control break. Q. You just went down to the bottom of the page, basically? A. No. I broke out of that utility. I looked, I typed something to the screen so I could see what was on it. Q. How did you -- THE COURT: The word M-O-R-E that had been on the bottom of a couple screens indicated to you that if you would scroll downwardly you would come up with more material. THE WITNESS: Right. THE COURT: Is that right? THE WITNESS: Right. The more recalls every -- THE COURT: It says there's more to come. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. And you escaped from that utility? A. Yes. Q. How did you do that? A. I hit control break. Q. And where are you now? A. I'm at a DOS command prompt. Q. So how, how are we going to get into the communications programs? A. I'll go back to Z drive, which is the CD Rom drive, and type DIR. And then go into the area which apparently is the area 1. Q. How, why do you say that, is that because the number 1 was on the menu next to communications? A. Yes. Q. What commands are -- MR. KITCHEN: Your Honor, let me -- can I interject something here? MR. OSTROWSKI: No. MR. KITCHEN: Mr. James is going through manually what these, these retrieval files, or these retrieval programs, have been -- would do, much more automatically. I mean, I'm willing to stipulate that as far as both sides are concerned, it's better to have a CD Rom disk with a retrieval system than it is to have one without any retrieval system. So I'm just trying to do this with the idea that maybe he could move on to the disk that really has a real retrieval systems on it, rather than demonstrating, which we'll concede, that it's better to have one than to not have one. So I'm not sure what the point of this, this rendition is, other than showing that, gee, it is really better to have one than not have one. MR. OSTROWSKI: My fee is $100 an hour to explain trial strategy. THE COURT: Well, there's another factor also which works against an undue continuation, and that is, until I come to a further decisional point in the case, the outstanding injunction against Mr. James remains in place. That does not, however, mean that we ought to be wasting the Court's time or wasting Mr. Kitchen's time or his client's time. MR. OSTROWSKI: Well, I'm intending to go through these as fast as I can, Your Honor. I don't believe that this particular disk has been demonstrated at all, and I think it's important to see -- THE COURT: It is important? MR. OSTROWSKI: I think it is important to see what an absolutely disaster it is not to have a file retrieval because that's part of our claim for damages. We have some burden of showing roughly -- MR. KITCHEN: But it's conceded, it's stipulated. MR. OSTROWSKI: Can I -- THE COURT: But are we dealing across the board with file retrieval systems of different kinds and sorts? MR. OSTROWSKI: But, Your Honor, I also have to demonstrate to the Court some proportion of the value of a CD Rom which is generated by the quality of the file retrieval. And I think that it's interesting for the Court to see from scratch that where there's no file retrieval how absolutely useless the disk is for the average user. MR. KITCHEN: Your Honor, the -- THE COURT: Well, but we're proceeding almost on the premise that having a file retrieval system is a benefit, something that's worth having. MR. KITCHEN: Your Honor, I submit -- THE COURT: Why are we showing what, how worthless it is without it? MR. KITCHEN: It's not necessary to demonstrate the value of a hammer by having somebody demonstrate, trying to drive nails by hand. THE COURT: Thank you, Mr. Kitchen. Thank you, Mr. Kitchen. BY MR. OSTROWSKI: Q. Mr. James, how many more steps would you have to utilize in order to get to one of the individual programs and actually use it? A. If I was going to be safe, it would be about 10. Q. Okay. And out of those 10 steps, how many would be within the capability of an average computer user? A. The average computer user would unzip one of those files onto this hard drive and unzip another one on his hard drive, and pretty soon his hard drive would be full of a lot of garbage, and, because he wouldn't know which files to delete and which files not to delete. Some people would start deleting files and then they'd call me because their computer won't boot. They will have deleted the command com. So that's why there is extra steps. First you have to go, go to C drive. Q. Well, I'm just asking you to describe it. A. You have to go to C drive, make a directory, a name directory, a unique name directory, and then go into that file directory and unzip the file to that area. Q. Okay. I'm going to ask you to fire up Plaintiff's Exhibit 37. Can you just identify the version number? A. It's, it says PDSI.002. Q. Okay. Can you fire that up? Now, could you just explain what, the steps that you're going through? A. The first thing I do -- THE COURT: I see. Now you've removed the material from the other disk, which was what, Plaintiff 1, and now he's thrown up some new material, which I assume comes from Plaintiff 37. MR. OSTROWSKI: Yes. BY MR. OSTROWSKI: Q. Is that correct, Mr. James? A. Yes, Your Honor. Q. And what, what do you have on the screen there? A. I have a directory listing of the contents of that, of that disk, and I'll look in it to find an executional file, something that has an EXE or a BAT or a COM. Q. Okay. Now, you've heard the testimony that the, the executable command for the file retrievals is Night? A. Yes. Q. And do you see it on there? A. Yes, I do. Q. Okay. Could you fire up the Night system. Okay. Have you seen this program operated during the trial? A. Yes, I have. Q. Is this a file retrieval program? A. No, it's not. Q. Why isn't it? A. It doesn't do any retrieving. It just displays files like Word Perfect. Q. Well, can you try to retrieve a file with, just using this program? See how far you get? A. I -- Q. Well, let's -- what would the next step be -- what I'm asking you to do is, see how far you can go with this program, with the communication -- A. I know what it does. It lists the various categories. THE COURT: That's what you have in front of you. Now what did you move to? THE WITNESS: I chose a number and brought up the file list. Brought up the file list. MR. OSTROWSKI: Okay. THE COURT: As opposed to the 37 listings you had on the earlier screen? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Now, what, what did you just do there? A. I pressed escape. Q. Okay. A. To come back to categories. Q. Now, why isn't this, why don't you consider this a file retrieval program? A. Because there's no option to, no facility to retrieve anything off the disk. You have to do it manually. Q. Okay. A. In DOS. THE COURT: Is this -- THE WITNESS: In using this program, I guess in response you said user, I would pick up a file name and let's say that there's an alien game in basic and it says, the screen says, hit home to unzip. So I hit home. The name of the file is Alien.ZIP. I'm paying attention to what the name is, name of the file is, and where it's at, because I watched the testimony and I already know there's no facility to get to the file itself, to use DOS commands, from DOS. There are instructions to go to the area, but the instructions are not correct. If you type in those commands, it's not going to do anything. BY MR. OSTROWSKI: Q. Yeah. I'd like you to do that, please. Can you follow those instructions exactly and see what happens? A. Nothing's going to happen. Q. Well, would you -- I'd ask you to do it. A. Except arrow -- Q. I'd ask you to do it. And could you just describe the instructions that you're -- A. Okay. It says, when you see the command line, all you do is go to the subdirectory of where the program is located at, and type, example, program is in A, PK.UNZIP, et cetera. Okay. I know where the program is so I'll go to the area. The program is in 2. So I go to the area and the instruction is not there anymore. I would have to print it out to follow the instructions. But I can do -- Q. You've gone to the area now and -- A. I can do a DIR. Actually I can back out and look at the instructions again, come back into it. Q. You'd have to print out the instructions. A. It didn't -- well, actually, I know what the name of the file is because I paid attention to the name before I went in there. MR. KITCHEN: Your Honor, if the record will reflect that the witness is not following the instructions that were given. MR. OSTROWSKI: I think the record reflects that the instructions are impossible to follow. THE COURT: Well, that's just the comment of the witness. BY MR. OSTROWSKI: Q. Could you please write down the -- get back to the help screen and write down the actual command and type that in. A. Okay. Look like I will have to quit the program and start it over again because the instructions are not coming up. And to quit the program also it's kind of awkward. Q. Why is that? A. It doesn't have a quit command. Q. Does a program normally have a quit command? A. Yes. Okay. I go to area 2 and -- THE COURT: You selected that number 2 off the 37 item directory you're just looking at. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Now, what did you do, hit home? A. Yes, I did. Q. And you have a menu screen? A. Yes, I do. Q. I guess we ran out of paper on the printer, huh? A. I see one page in there. That should come out. Q. You're going to print the help screen here? A. Yes. I'm going to attempt to. Oh, the printer is locked up because it's out of paper. It's recognizing that there's no paper. Q. Well, can you just write down the instruction. THE COURT: Does anyone have a camera? MR. OSTROWSKI: Photographic memory. THE COURT: Actually it's not a bad situation in which to use a videotape. MR. KITCHEN: Your Honor, do I understand now that it's defendant's position that all of these difficulties are the result of my client's, the inadequacies of my client's disk? MR. OSTROWSKI: I don't answer questions during examination, Mr. Kitchen. THE COURT: Well, it's good to find out what the issues are. You declined to answer Mr. -- or to accept Mr. Kitchen's invitation? MR. OSTROWSKI: Well, he's editorializing during my examination of a witness. I think I -- THE COURT: We don't have a jury. MR. OSTROWSKI: The testimony is that, that this program is similar to the -- THE WITNESS: I usually use printers to do everything. You know you have a hard -- I have a hard time reading my writing. Okay. I'll write the instructions. It says -- MR. KITCHEN: Your Honor, may I -- THE COURT: Well, all you have to do is to read what's there, and it automatically goes right into our record, and if you want a transcript of it in the future, it comes out as you've dictated it. THE WITNESS: Right here, it says PK -- THE COURT: You're pointing to the third line of what is on the screen. THE WITNESS: Okay. It says PK.UNZIP double 001. At a glance I know it won't work. James said demonstrate what the error that you would get if you followed the instructions. The instructions, if you follow the instructions it's not going to work. Even though they're there, you're going to have to call a text report or somebody to teach you how to do that. BY MR. OSTROWSKI: Q. Okay. Let's skip that, and ignoring the -- MR. KITCHEN: Your Honor, I object to this because of the fact that about half of the instructions have scrolled off the screen, and the witness has started essentially in the middle of the instructions and says that they can't be followed. I submit that he should start at the beginning like normal people would. MR. OSTROWSKI: That's not a proper objection, as most of your objections are not proper objections. THE COURT: Well, he's just pointing out that what's coming in is really not at all pursuasive to the fact finder. THE WITNESS: My effort to print -- MR. OSTROWSKI: Let me ask Mr. Gentner, if he's here. THE WITNESS: I won't try to print it anymore. I just, like I said, it's clear that the program won't work. THE COURT: No, but do you recognize my point that in order to get a written record, a permanent record of what's on the screen. All you have to do is read it off into the microphone and we will have such a record. MR. OSTROWSKI: But that won't demonstrate, Your Honor, that it doesn't work. THE COURT: Nevertheless, if you want to know what's on the screen and retain that for the record, that's a way of doing it. MR. OSTROWSKI: I'm trying to get some paper, Your Honor, to print out the screen. I think that would be the best solution. BY MR. OSTROWSKI: Q. Could you load the printer and print out that help screen. THE COURT: A problem I can foresee with this as items are being printed from what is on the screen from time to time, we aren't going to have any real identification in the record by Exhibit number, for example, as to what is what. MR. OSTROWSKI: I would, I'll try to make this an Exhibit, Your Honor. THE COURT: Make what an Exhibit? MR. OSTROWSKI: The printout here that we'll hopefully have. THE COURT: So you're saying that you would have what is on the screen now, for example, printed out, and then take that printed sheet of paper and put an Exhibit number on it? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Of course, you could use subletters because we're coming off Plaintiff 37. Like 37-A, B, H, and so forth. MR. OSTROWSKI: Can we call this 37-A? THE COURT: 37-A. (Plaintiff Exhibit 37-A marked for identification.) BY MR. OSTROWSKI: Q. Okay. Showing you Plaintiff's Exhibit 37-A, Mr. James, what is that, is that what you just printed out? A. Yes, it is. Q. From the CD Rom, Plaintiff's 37? A. Yes, the instructions from the -- Q. Okay. A. -- from the -- THE COURT: From one portion of the instructions. BY MR. OSTROWSKI: Q. Now, can you -- THE COURT: Is that right, Mr. James? THE WITNESS: Yes, from a portion. No, it's the full instructions. BY MR. OSTROWSKI: Q. Is there anything -- THE COURT: Well, it starts in the middle of a sentence, using hard drive, or do they always start with small letters? THE WITNESS: That's all you, that's all you can get. BY MR. OSTROWSKI: Q. Now, how did you get to this screen, Mr. James? A. That's all I ever saw. Q. Okay. A. Okay. If I -- THE COURT: I see immediately there you scrolled halfway up, but you came to a different picture, which had half of what you had printed out as 37-A, and some other garbage. BY MR. OSTROWSKI: Q. Are you in one of the subdirectories, Mr. James? A. Yes. Q. Okay. And does it say, use home to unzip? A. Yes. Q. And could you hit the home key? What are you doing? A. I didn't want to print everything. Q. Well, we don't have to print anything else. A. I was, I wasn't going to print. That won't happen anymore. I turned the printer off right in the middle of printing. Q. Oh, okay. You can get back to the program pretty quickly, I hope? A. Yeah, it will come right up to it. THE COURT: You need someone standing at the printer to throw it on or off? THE WITNESS: This is some of the things that, that people will experience in trying to get instructions. I mean, they're not permanent on the screen. As you will notice, Your Honor, you mentioned that you're only seeing half. I don't know the way to see the rest of it, if there's anything else there. BY MR. OSTROWSKI: Q. Okay. Well, we're going to demonstrate that. You're going to hit the home key. THE COURT: As far as operating the printer or not operating, is that controllable from your keyboard? THE WITNESS: It is. THE COURT: So you don't have to go up there and turn a switch on or off. THE WITNESS: Not anymore. BY MR. OSTROWSKI: Q. Okay. Now, you're at -- well, what did you just do? A. I hit home, hit the home key. THE COURT: Back to what he printed as 37-A. BY MR. OSTROWSKI: Q. And what is the first word on the screen? A. Using. THE COURT: With a small u. BY MR. OSTROWSKI: Q. Okay. Can I -- and is that the screen that is printed out on 37 -- THE WITNESS: That's the same thing that -- THE COURT: If you scrolled upwardly from that, you wouldn't find any more text? THE WITNESS: It's not possible to -- BY MR. OSTROWSKI: Q. Can you hit the -- can you hit the -- THE COURT: Well, you can scroll down but you can't scroll up. BY MR. OSTROWSKI: Q. Can you hit the up arrow, please? A. You can't, you can't scroll. THE COURT: I see. You can go down but not up. THE WITNESS: You -- that's right, Your Honor. BY MR. OSTROWSKI: Q. Can you hit page up? Can you hit home? Okay. None of that works -- A. That's correct. Q. -- to get you any further beyond using? A. That's correct. Q. Or in front of. Okay. Can you see some instructions there on the printout? A. Yes. Q. As how to fire up the program? A. It says, using hard drive, we have shell to unzip part of this program out. Now, here's how it works. When you -- that, that sentence didn't make sense because it's part of a sentence. When you see the command line, all you do is to go to a subdirectory where the program is located at and type, example. Program is in 001A. So I go to where it's at. The program is in 002A. Q. Which program? A. Alien. Q. Okay. A. And now, now the instruction says -- Q. Well, where are you now? Did you accomplish anything? THE COURT: You still have part of what was on the screen before. THE WITNESS: Yes. It would have stayed on till it scrolled off. BY MR. OSTROWSKI: Q. Where are you? A. I have moved to a subdirectory on the CD Rom drive, which is just essentially the same as a hard drive. Q. Okay. Can you follow the command then on the printout exactly and see what happens? A. It says PK.UNZIP AA.ZIP c:\CD Rom or PK.UNZIP AA.ZIP. THE COURT: I notice they have two different directions to accomplish the same thing, to wit, type exit to return to A menu. THE WITNESS: Yes. That's the command prompt that -- THE COURT: You got two different commands to accomplish the same thing. THE WITNESS: Right but the command where we're at is that flashing cursor. The next thing that we type in -- THE COURT: I see. That little -- THE WITNESS: This is indicating -- THE COURT: -- flashing underscoring shows you that's where you are? THE WITNESS: Yes. MR. OSTROWSKI: Okay. THE WITNESS: It's showing that, that we, the DOS command prompt where we are, we are inside of a shell. We're at a DOS prompt, but we're at a shell. THE COURT: Can you move or scroll that flashing underscoring upwardly? THE WITNESS: No. It's hardcore, if this was word processor, you could. THE COURT: Why, what's the purpose of that instruction that's next above that, where it says, the same instruction, type exit to return to A menu, and then gives you a different, different keying to accomplish it? THE WITNESS: Every time you type in a command, this menu shell is going to indicate and remind you that you are in a shell and that you can go back into the dominating program. THE COURT: That's what each of those messages or instructions says. THE WITNESS: Yeah. Those, the instructions are on that paper, but yes, every time you type in a command, even if I just press enter, that's a command there. BY MR. OSTROWSKI: Q. Now, if you typed exit, you'd be back to where we just left, right? A. Right. THE COURT: Now, what you have now -- what you had there was a bunch of how to get through that same thing and the repetition of the keying to accomplish it. BY MR. OSTROWSKI: Q. Okay. Can you hit home to go back to where we were again? A. It's not going to work at this point. Q. Well, why not? A. We have to quit it. Because it's apparently looking for that help file on the root directory. Q. Okay. Can you just get back to where we were? A. Okay. Q. And we're going to execute this command. A. I can anticipate all the problems that are happening. Q. You don't need to anticipate. I'm just going to ask you to execute this command. Now, what was the last command you hit -- wait. Hold it, hold it, hold it, please. What was the last command you hit? A. I pressed the home key to drop in to the shell. Q. Okay. I'm going to ask you to -- THE COURT: Now we're back to 37-A. BY MR. OSTROWSKI: Q. I'm going to ask you to look at 37-A, and do you see any commands here on how to proceed next? A. Yes. Q. And what is the first command? A. It says, type, goes to where the program is. Q. Okay. Can you go to where the program is? THE COURT: Where do you -- all right, go ahead. BY MR. OSTROWSKI: Q. Now, was that a -- what -- how did you get to where the program is? A. I used the DOS command, CD for change directory. Q. Is that a common command? Would most users know that, how to do that? A. Well, most -- MR. KITCHEN: Which question is he supposed to answer, Your Honor? MR. OSTROWSKI: Well, it's really the same question. THE WITNESS: It's a common command and it's the kind of command that people are often taught, you know, how to get to those programs. A lot of times they don't understand it, but they do it. BY MR. OSTROWSKI: Q. And what is the next step? THE COURT: One problem I have, frankly, Mr. Ostrowski, with the level of expertise that Mr. James is portraying, that he's basing it on questions and conferences and advices that he's giving to people who are calling in. And I assume, maybe wrongly, that there's a whole category of people out there who don't need that help, so consequently he's answering on the basis of only part of the field of users. This is my surmise. MR. OSTROWSKI: Well, I'm -- THE WITNESS: Your Honor -- BY MR. OSTROWSKI: Q. Let me ask you this, Mr. James. A. He has a real good point there. Q. What percentage of -- A. He has a real good point. Q. What percentage of computer users are hooked into a BBS? THE COURT: Well, what does that matter? MR. OSTROWSKI: Well, I would suggest, Your Honor, that it is in fact the opposite. THE COURT: People can be hooked in and not use, and not come to Mr. James for help or advice. MR. KITCHEN: Object to the competence of the witness to answer that question, Your Honor. Now he's going to be a statistician or essentially an economist of the computer environment. THE COURT: Well, he hasn't qualified as that. BY MR. OSTROWSKI: Q. The people who -- A. Very few computer users use BBS's, very few. And they really lose out by not using them. Q. Okay. Let me ask you this. A. Very few people -- James Ostrowski, you've been using a computer for what, maybe five, 10 years? You don't know how to run a -- the only way Kitchen knows how to do anything about this is because Graham taught him. His Honor, and the secretary, and I'm quite sure they use computers, but they wouldn't know how to do anything like this. THE COURT: My secretary is not here. My secretary is quite competent in it, but neither the Court Reporter nor I is. THE WITNESS: Your secretary will not be able to use this, Your Honor. THE COURT: I don't know. I wouldn't challenge her. MR. KITCHEN: Your Honor, I will stipulate to the fact that in fact Richard Graham is highly competent and capable of teaching me many many things about the -- BY MR. OSTROWSKI: Q. Okay. What is the next instruction on Plaintiff's 37-A? A. It says type PK.UNZIP/AA.ZIP C\CD Rom and -- Q. And -- A. It will not work. Q. Well, do it, please. THE COURT: Wait a minute, you're mistyping. THE WITNESS: No. That's an example. THE COURT: Well, it says 001, you've got 002. THE WITNESS: Neither of them are going to work. MR. OSTROWSKI: When you type -- THE WITNESS: I'm anticipating -- MR. OSTROWSKI: When you type -- no, no, no, no. When you type 002, are you following the instructions of the program? THE WITNESS: Yes, I am. THE COURT: The instruction says PK.UNZIP 001a/AA.ZIP C\CD Rom. MR. OSTROWSKI: It says that's an example, Your Honor. THE WITNESS: It's using 1 as an example. THE COURT: It says -- well -- THE WITNESS: See, it's as in -- THE COURT: -- I thought that you were being told to type that in. THE WITNESS: It says -- BY MR. OSTROWSKI: Q. Well, can you use 001? A. It says, look at, look at where your program is located, an example. THE COURT: On the screen now, that's not there. It starts below that. It starts at the third paragraph of 37-A. THE WITNESS: And that's, that's continuing with the example of 001A. THE COURT: Well, it says or, that's disjunctive. That's not conjunctive. THE WITNESS: Okay. I'll type in exactly what's there, and what should be typed in -- MR. OSTROWSKI: We don't want to know what should be typed in. THE COURT: Now, do you have to put enter or something, or what? THE WITNESS: I'll answer your question. What's the question. BY MR. OSTROWSKI: Q. If you typed in -- THE COURT: Do you put an execution key on now? You punch enter or something, or what? THE WITNESS: Yes, Your Honor. THE COURT: Is that what you want him to do, Mr. Ostrowski, or just die here? MR. OSTROWSKI: I asked him to follow, I asked him to follow exactly what's on the page. THE COURT: Well, isn't that -- I mean, is that not always something like that that's inherent in operating a computer, that when you give the signal, then you say go, give him the green light, enter or something. BY MR. OSTROWSKI: Q. Have you typed that first suggested command? A. Yes, I did. THE COURT: Yes. BY MR. OSTROWSKI: Q. And can you press -- THE COURT: But still, he's got 002 instead of -- no, I see, I see. All right. Go ahead. Although before what you plugged in, you typed in, you still have something more that's on the screen, like that 1Z:\002A(). THE WITNESS: Yes, Your Honor. That's showing the location of where we are located on the file system. THE COURT: I see. You didn't, you didn't type that in. THE WITNESS: No, Your Honor. BY MR. OSTROWSKI: Q. Can you execute that command now? Okay. What happened? A. It says, what the bottom line is, PK.UNZIP, no files found. Q. Okay. Can you go back and rerun that exactly as it appears on 37-A, using 001A. THE COURT: That's what he did. BY MR. OSTROWSKI: Q. Actually -- well, is that what you did, exactly? A. Yes. Q. Well, didn't you have an 002 in there? THE COURT: First he did, but then he changed it to 001. MR. OSTROWSKI: I think he had an 002 in there. THE WITNESS: I would put, I would put 002 there. THE COURT: That's right. You started to put 002, and then I brought to your attention that the instruction was 001. THE WITNESS: That's what the instruction says, and the instruction's not going to work. BY MR. OSTROWSKI: Q. Well, can I ask you to go to the next suggested instruction and execute that, after the or, on 37-A. THE COURT: Well, that's where we were, on the or. MR. OSTROWSKI: But there's three suggested instructions. THE COURT: Oh, there are two ors. MR. OSTROWSKI: There's actually, yes. BY MR. OSTROWSKI: Q. Can I ask you to go to the second instruction and execute that and see if it works? THE COURT: Second disjunctive. We did the first disjunctive. MR. OSTROWSKI: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. What, what happened there? THE COURT: Can't find, it says. BY MR. OSTROWSKI: Q. Can you go to the third disjunctive and execute that command? Now, are you in the right -- have you followed that program as in 001A, step? Okay. Can you execute the third disjunctive command? Can you say what it is while you type it? A. I'm typing, typing PK.UNZIP 001A\AA.ZIP C\CD Rom. THE COURT: I notice, have noticed now and earlier, people talk about back slashes. Are there forward slashes? THE WITNESS: Yes, Your Honor. The back slash signifies that it's part of a directory location. THE COURT: So a moment ago we were just talking of plain slashes, and that meant nothing except, is it normally a back slash? THE WITNESS: The forward slash is, is basically a division sign, and it's used also for passing parameters to programs in the DOS command parameter list. BY MR. OSTROWSKI: Q. Are you ready to execute the third commands suggested? A. Yes. Q. And would you do that, please? And what was the result? A. Can't find. Q. Okay. How would you go about unzipping and getting a file? What command would you use? A. First make a DIR area. Q. Why would you do that? A. Because when I open up the file I want to put it on the hard drive, in its own location so it doesn't clutter up the file structure that I already have there. Q. Okay. Could you do that, please? A. Okay. I'll make a directory and call it now so that I won't forget, so that I'll know that it's something we're working on at this particular time. Q. Okay. A. I could have called it anything. Q. What do you do next? A. I go to the area and look for the file. Q. You're back to 002. What was the name of the program we're looking for? A. Alien. So I'll type DIRALIEN to make sure it's there, and it's there. Q. Okay. And what would you do next? A. I will type PK.UNZIP ALIEN ZIP. Then I'll put in a full path to where I want it to go to. I want it to go to the area Now. Q. On the hard drive C? A. Yes. Q. Okay. What is this screen, and what does it mean? A. It is extractive.(sic) Q. It's an unzipping? A. Yes. Q. Is it done? A. Yes, it is. Q. And what would you have to do to -- A. I will go to the area that I just created. Q. This Now area? A. Yes. Q. And what, is it there? A. It's there. It's a basic program. Q. So how would you fire it up? A. I would call basic and -- Q. Well, why would you do that? A. Because it's a basic program and it has been interpreted by Basic. Q. In the Basic language? A. Yes. Q. Okay. A. First I'll show you something. A lot of Basic programs you can see the source. THE COURT: Have you completed what you were instructed to do? THE WITNESS: These instructions are not there, Your Honor. THE COURT: No, by Mr. Ostrowski. BY MR. OSTROWSKI: Q. Okay. Have you got into the program? A. Yes. Q. Now, after you press the home key, you were out of A menu? A. Yes. And out of the program. Q. Okay. A. I'm in DOS now. Q. So all those instructions that you executed to get to the program -- A. They're DOS commands. Q. -- you didn't use the file retrieval? A. There is no file retrieval on this disk. Q. Okay. Let me grab the next one. Could you put in Plaintiff's 3. I'm going to give you Plaintiff's 3. What's the version on there? A. This is C.A.R.R.S. PDSI-003. Q. Is the word Folio on there anywhere? A. No. It doesn't have Folio on here. Q. Okay. Can you put that in and fire it up? A. May I see that? Q. Which? A. That's all right. MR. KITCHEN: Which Exhibit is this? MR. OSTROWSKI: This is 3, isn't it, Plaintiff's Exhibit 3, is that correct, Mr. James? THE WITNESS: It is. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Now, what did you do to get to where we are? A. I selected that drive letter specification, letter z. Q. Why did you do that, was that on the program? Did the program tell you to do that? A. I know that the CD Rom drive -- Q. This is called Z, where the -- THE COURT: Did the program tell you to do that? THE WITNESS: No, it didn't. BY MR. OSTROWSKI: Q. Do you know that this is called Z? A. Yes. Q. Okay. Now, what do you do next to get into the CD Rom, according to what you see? A. I see two executional programs, actually three, and one of them has the same name as the disk, so I would assume that that would be the one to run. Q. Is that C.A.R.R.S.? A. Yes. Q. Okay. And can you execute that command? Okay. What do you -- THE COURT: I notice that that one, as opposed to the two others, had CDM after it, rather than EXE. Is there a reason for that? MR. KITCHEN: COM, Your Honor. THE COURT: COM. I don't have my bridge playing glasses. I have my close reading glasses. BY MR. OSTROWSKI: Q. Is COM, what is the difference between COM and EXE? A. There's a hierarchy. One would load in a different location and if you have both of them, it only loads one, so we run it in a EXE file. Q. Now, we saw Folio there. What happened to Folio? A. I broke out of it to let His Honor see the names of the executional files. There's one, two, three, and I did call those one of the executional files. Q. Okay. THE COURT: COM? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Could we go back to the Folio? Now, what did -- did you just press a button? A. I paused the screen. Q. You've got to tell us exactly what you did. A. I paused the screen because it flashed kind of fast. This, this program which is not a retrieval, but it is a data base, data base program -- Q. Well, how do you execute that, according to the screen? A. According to the screen, it says the first thing to do, to do, hit the Z, zoom and dot. Use the tab when trying to find markers. Read all the DOS for the Q file program. THE COURT: You read part of what was there, number 1 and number -- THE WITNESS: Oh, you want me to read the whole -- THE COURT: Well, I don't know. I'm just reconnoiter the record that you read part of it. THE WITNESS: I was going to try to go to the executional part. I'll read the whole thing. First thing to do, hit the control Z to zoom in on the DOS. Use a tab when trying to find the arrow marker in the page which would allow you to go to another area of the CD Rom. Watch right markers for mark, markers. Space bar for word search. Read all the DOS for the Q file program. It would help you to view copy unzip your program to your drive. In the file directories there is also markers for you to line up a tab key for loading utilities to view CD's. Please read all the DOS. THE COURT: Now, one question. I notice in the second line it says, DOCS, and the other two places, it's -- well, the first line and the last line, DOCS, and then the first line of item 3, DOS. Is there a difference there? THE WITNESS: DOCS refers -- THE COURT: Means documents? THE WITNESS: Documents. THE COURT: DOS means? THE WITNESS: Refers to DOS. BY MR. OSTROWSKI: Q. Do you know how to get into the program now at this point, from reading that? A. No, I don't. Q. Okay. What about the bottom of the screen, are there commands at the bottom? Could you go back to that first help screen. THE COURT: There were. BY MR. OSTROWSKI: Q. I'm asking you to go back to the help screen. A. When I was backing up out of the screens, I -- THE COURT: You can't go back to it? There it is. No, that's not it. BY MR. OSTROWSKI: Q. Now, what about -- THE COURT: There it is. It was. There it was. THE WITNESS: Okay. Here's the help screen. Hit F1 for help. And it says -- THE COURT: That's not what you were referring to, is it, Mr. -- MR. OSTROWSKI: I'm sorry. When I say help, I was just -- THE WITNESS: When you back out -- THE COURT: I'm just -- Mr. Ostrowski I think was referring to the colored box. MR. OSTROWSKI: I'm calling it help. It's -- THE WITNESS: Oh, okay. When I backed out, it -- THE COURT: Yeah. The one that was after this. THE WITNESS: Okay.If you back out it looks like this. THE COURT: That one. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Now, what about the instructions on the bottom, do they help you get into the program? A. Enter to open new view of file name tab to cycle windows. This is -- Q. Does that mean anything to you? A. Yes, it does. Q. What? A. The utility is showing you how to organize and view your data that's on the CD Rom, or in your media. It's not showing you, it's not a retriever, it's a data base utility to manage and sort out your data. Q. You can't use this program to retrieve files? A. No, you can't. Q. Okay. Well, let's do it. MR. KITCHEN: Your Honor, again, again we will stipulate that -- MR. OSTROWSKI: Oh, please. Can we stop the editorializing. MR. KITCHEN: We will stipulate -- MR. OSTROWSKI: I didn't, you know, he put two witnesses on the stand, Your Honor. I didn't -- THE COURT: Please let him say what he's going to say, Mr. Ostrowski. A stipulation is always helpful, I think. MR. KITCHEN: Your Honor, we will stipulate that the Folio program was one that wasn't, didn't meet the expectations and needs of my client, Mr. Graham, which is why he engaged the services of -- THE COURT: That doesn't sound like much of an acceptable stipulation. MR. KITCHEN: Well, I'm -- what I'm trying to say though -- THE COURT: A stipulation is something you try to reach an accord with your opponent, opposing attorney on. MR. KITCHEN: Well, yes. I would like to, I would like to offer a stipulation that the Folio program wasn't satisfactory to my client, which is why he sought another program, specifically the one -- MR. OSTROWSKI: I reject that. THE COURT: Do you accept that stipulation, Mr. Ostrowski? MR. OSTROWSKI: I reject it. THE COURT: Thank you. No stipulation. MR. OSTROWSKI: As he's rejected all of my stipulations. THE COURT: No, no. You don't do it just on that basis, do you, Mr. Ostrowski? MR. OSTROWSKI: Well, I didn't, I'm doing it on the basis that I didn't interrupt his expert witnesses. THE COURT: A stipulation is always salutary, if it could be reached. MR. OSTROWSKI: And I was done, I was about to put a new disk in. I'm about to put in a very crucial disk, Your Honor. MR. KITCHEN: I also have another objection. MR. OSTROWSKI: It's 25 after 4:00. MR. KITCHEN: I have another objection, and that is that they've gotten to this point and supposedly the witness' hands are tied. He is unable to carry on with this particular program, and yet he is yet to do the very thing that it says after number 1 on the screen before us. The first thing to do, it says, is hit the control Z to zoom in on the docs. This has not been done, and instead, this program has been adjudged as somehow inadequate and incapable of accomplishing anything. THE COURT: I do note, I do pick up on your notation Mr. Ostrowski that we have five minutes which doesn't seem to be enough of a window, large enough window to go into a new disk. MR. OSTROWSKI: It's the first disk with Mr. James' program actually on it, so it probably would take a bit longer. THE COURT: I would think. Have you finished with this one? MR. OSTROWSKI: Yes, forever. THE COURT: All right. MR. OSTROWSKI: Hopefully. THE COURT: Tomorrow morning, 9:00 O'clock. MR. OSTROWSKI: Yes, Your Honor. 744 I N D E X Witness Dir Cross Redir Recr Larry D. James 746 Exhibit Ident. Evidence Plaintiff 37-A 845