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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, November 3, l993 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 (LARRY D. JAMES, Defendant, Previously Sworn.) CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Mr. James, I'm showing you Plaintiff's Exhibit 4. Can you identify that? A. Yes. It's Night Owl's CD Rom disk. It says Folio on it, and it's version PDSI0031. Q. Now, did you look at a Exhibit yesterday that had a Folio program on it? A. Yes, I did. Q. And is that the disk that you were looking at? A. That's not the same disk. It has Folio written on it. Q. Did the disk -- and do recall the Exhibit number that you were looking at yesterday that had Folio on it? A. I believe it's Exhibit 3. Q. Did that Exhibit have the word Folio actually on the disk itself? A. Not on the physical disk, only in the program. Q. Okay. I'd ask you to execute that program and look for any copyright screen. What command did you use to execute? A. Normally I would type DIR and press enter. Q. Now, you just hit a key. What did you hit? A. I hit the pause key. Q. What does that do, freeze the frame? A. Yes, it does. Q. Okay. Normally this frame would disappear in a couple seconds? A. It would. Q. Okay. Is this the opening screen on Plaintiff's Exhibit 4? A. Yes, it is. Q. And just could you quickly read through that copyright screen? A. Folio, Rom time 2.0. Copyright 1987-1999, all rights reserved. THE COURT: 1990. THE WITNESS: 1990. All rights reserved. Patent pending. Folio Corporation, 2020 North Freedom Boulevard, Suite 150, Provo, Utah, zip code 84604. BY MR. OSTROWSKI: Q. Now, according to what you read on the, on the CD Rom disk itself, is Folio the publisher of this CD Rom? A. No. Night Owl's is the publisher of this CD Rom. Q. Okay. How common is it for you to see copyright notices on computer programs? A. All the time. I myself run Unix at this particular time, and Unix, when you boot up the computer, about 15 -- MR. KITCHEN: I'll object. THE WITNESS: -- copyright notices -- THE COURT: Pardon me? MR. KITCHEN: I'll object on the grounds of relevancy as to what he does with Unix. THE COURT: What relevancy? MR. OSTROWSKI: There's, I believe the plaintiff testified that he received complaints about Larry James' copyright notice in his program, and that led to a whole series of controversies. I'm trying to demonstrate that there's absolutely nothing abnormal or unusual about copyright notices put in by someone other than the publisher of the entire disk. THE COURT: Well, of course, you've got the problem, publisher versus owner. Publisher versus person having the rights. I don't know how that interacts yet. MR. KITCHEN: Well, I'm also not sure what he can offer in terms of the relevance of the Folio having their own copyright notice on their own program. THE COURT: Well, he's just, he's merely citing one situation, Mr. Ostrowski, that, how far does that take me as far as knowing what the trade does. MR. OSTROWSKI: Well, actually, I'll leave it at that, Your Honor, since this is in fact the program that preceded Mr. James' program. I have no further questions about this disk. Could you withdraw that, please. I never could take those disks out. I don't know how you do it. THE WITNESS: It's indented twice right here. MR. OSTROWSKI: Well, it's far too complicated for me. BY MR. OSTROWSKI: Q. Now, showing you Plaintiff's Exhibit 5, and could you just identify that? A. It says Night Owl's, 219 Potomac Avenue, and it's PDSI004. Q. Is the printer ready to go? A. Yes. The power just has to be turned on. Q. I don't see the paper in the -- okay. You fired up, what was the Plaintiff's Exhibit number again, was that 5? A. 00 -- Q. No, the -- A. I mean, Exhibit 5. Q. Okay. Okay. Can you fire up the program? You've got to explain what you're doing. A. I typed DIR and used a wide, a W to give me a wide perspective, and looked for an EXE BAT or a COM executional file. And I see a Night.EXE file, which I would type Night and press enter to run it. Q. Okay. Can you do that, please. Okay. I take it that screen stays until you hit space? A. It will. Q. Can you print that screen out, please. Showing you Plaintiff's 5-A, is that a printout of the opening screen on Plaintiff's 5? A. Yes, it is. MR. OSTROWSKI: I'd ask that this be admitted into evidence, Your Honor. MR. KITCHEN: Your Honor, I have one, one objection. It's kind of minor. There is a box within the box, and on 5-A the words in the box within the box read, the magic of a unique program, and -- THE COURT: In the box there's a floating message. MR. KITCHEN: Yes. MR. OSTROWSKI: It's in evidence, and it's there for anybody who wants to read it. MR. KITCHEN: Well, it's -- THE COURT: Well, his point is, I guess, if you get a -- MR. KITCHEN: It's there at this second. THE COURT: -- an instant or a shot of what is in the box at that time, and of course you don't get the continuity of it, but -- MR. KITCHEN: Well, Your Honor, I have no objection to the admission of 5-A, as long as we read into the record the totality of the message which is scrolling from right to left. BY MR. OSTROWSKI: Q. Can you read that, Mr. James, once you get to the beginning? A. Okay. MR. KITCHEN: Well, I'm not sure we need even him to do it. If we can read it ourselves, and let's try and get to the beginning of a sentence and look for some punctuation here. THE WITNESS: Welcome to the magic of a unique program data base. THE COURT: Programs data base. THE WITNESS: Management, manager. MR. OSTROWSKI: Okay. THE COURT: And now it's repeating. THE WITNESS: Welcome to the magic of a unique programs data base manager. THE COURT: Data base. MR. OSTROWSKI: Is that the complete sentence? THE WITNESS: Yes, it is. MR. KITCHEN: Okay. MR. OSTROWSKI: Would you stipulate this into evidence? MR. KITCHEN: This is fine, yeah. THE COURT: It's in evidence. MR. OSTROWSKI: Thank you, Your Honor. (Plaintiff's Exhibit 5-A admitted into evidence.) BY MR. OSTROWSKI: Q. Now, by the way, with respect to that, the magic of a unique programs, et cetera, did you write that? A. Yes. I associated with -- Q. Well, where did you get that -- or, had you ever used that type of language before? A. I associate that with the concept of my BBS system, Apollo, to take a person to a trip to the stars, and, a magic trip. And on my board it always says, welcome to the magic of Apollo 3. Q. Now, what can you tell us with that opening screen about what kind of file retrieval program would be on this CD Rom? A. It's a program that duplicates my BBS to associate files with a number, a file that's with a number, and allow you to tag or download one of those files from the media. Q. Okay. I'm sorry. Were you finished? A. Yes. Q. And what language is this CD Rom program written in? A. It's written in Quick Basic. Q. Okay. Can you continue on and get into the program and see how it works. What did you do there? A. I hit the space bar, as was indicated on the screen. Q. And what, what is the next step in running the -- A. The system recognizes that it has not been installed, and it's prompting for default configurations that the user might want personally. Q. Okay. So what would you, what would the easiest and fastest way to execute be? A. Most of them would be to, by the default prompts that I had anticipated. This area for the default can be Night and the area for the CD Rom drive. By default it's suggesting S, but in this case I notice CD Rom drive designation is Z so I hit Z and press enter. And the program automatically anticipates that the text files will be on the same drive as the CD Rom so it uses that. And pressing defaults it will ask you, do you want to modify your auto EXE batch file. This way those defaults will be set up when you first start the computer. I just point out, say no, because I'd prefer for the batch file to remain the way it is. Q. Now, did you write all of these instructions? A. Yes, I did. Q. And the source codes that make them appear on the screen and work? A. Yes, I did. Q. Now, by the way, you testified yesterday about Plaintiff's Exhibit 37. That's PDSI002? A. Yes. Q. Did you use the program on Plaintiff's 37 in developing the program that is in Plaintiff's 5? A. No, I didn't. Q. Okay. Continue. What point are you at now? A. I'm at the option to continue the installation and the screen prompts you to type install. Q. Okay. Is that the next logical step? A. It is. Q. And would you do that, please? Now, what do we have here? A. It appears that this is not the -- some changes has been made. Q. Well, what's the problem? A. There's no problem. Q. Is this -- MR. KITCHEN: Let the record show that the witness has made a number of entries that were too fast for us to notice. MR. OSTROWSKI: Yeah. You've got to explain -- MR. KITCHEN: And he finally ended up in the program. MR. OSTROWSKI: You've got to explain what you did there. THE COURT: Well, the first thing seemed to be that something had done wrong, and then on the screen just before what we have now I saw the word, quote, cannot, unquote. BY MR. OSTROWSKI: Q. What was the problem there, Mr. James? A. The problem was, I had copied a Night.EXE file from the other CD ROM disk to my hard drive, an executional file. Q. You mean before Court today? A. Yes. I had ran that program and -- THE COURT: When did you do that? THE WITNESS: About five, about five minutes before Court resumed, to demonstrate, to show some differences between, I ran a comparison between the disk that was on the CD ROM to the CD ROM to show it to my attorney. MR. OSTROWSKI: Is that something that you're going to testify about later? THE WITNESS: Right. It's pertaining to the testimony and I wanted to show my attorney the relevance. BY MR. OSTROWSKI: Q. Okay. And how did you solve that particular problem and get to the -- A. I typed Z: and pressed enter, and DOS will always search the currents paths before it search anywhere else. So by typing Z and pressing enter, the program that I run is the program that's indeed an actual, actually on this CD ROM disk. Q. Well, is it fair to say that you told the computer to go to the CD ROM hard drive, CD ROM drive Z instead of the hard drive C? A. Yes. Q. Okay. And are you, where are you at now in the program? A. I'm at the category screen. Q. Okay. And you see, can you just describe what you see there? Is it a list of categories of different types of computer programs? A. It has a box that, encircled in a box with numbers, and each one of the numbers has an associated category. For instance, the number 1 has association, associated with the communications. Number 2 is associated with games of all sort. It goes up to number 28. Q. Okay. Now, where did you, where did you get the ideas for developing this menu screen, or is this -- well, is this your menu screen or did you get this menu screen from someone else? A. That's my menu screen. Q. Okay. And where did you get the -- did you -- well -- A. I developed that screen. Q. Well, how did you develop the screen? A. To allow my users on my BBS to access my files. THE COURT: What's so different or magnificent about this particular screen? THE WITNESS: It's, Your Honor, it's not different. It's very common. It's something that -- THE COURT: That's what I thought, it was very common. THE WITNESS: If you sit down totally independent of BBS's or anything, and start categorying some, you probably do the same thing. I did this seven years ago, but now I bought a program from Utah that my BBS that I run and it used the same concept that I had developed. So, you know, I can't claim it. THE COURT: It's like a table of contents. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Are you claiming, Mr. James, that the arrangement of this menu and its appearance are original with you? A. I thought it was original when I first developed it a long time ago, but it's so common that I don't think anyone can claim its originality. Q. And are you claiming legal right over this formation of this menu screen? A. No. Q. Okay. What is the significance of the numbers that are attached to each of the categories? A. It would be associated with a text file on the hard drive, and if you hit that number and that text file beginning in the word DIR would have a number after the extension. Q. Okay. Why don't you demonstrate that as you're explaining it, with maybe 1? A. I hit 2 for games. Q. Okay. A. And I pressed enter. Now, what the code actually does is associate DIR and adds a 2 to the extension and it's bringing up a file as in a text editor called DIR2. That's a text file. You could look at it with Word Perfect. THE COURT: I noticed that after you had pushed the buttons and before the present screen came up, there was a bracketed number in the lower left screen, a three digit number that kept progressing upwardly. THE WITNESS: Yes, Your Honor. That was a counter that would facilitate, it was a prompt that I put in because some people have a slow computer and it was just a status line to allow the user to know that it's actually working, and you know, a lot of times, I mean, if it was super fast, like today, if most people had 46's, I probably wouldn't bother about it. But at that particular time, I wanted to make sure that the user knew that his computer was busy. THE COURT: That people knew the computer was alive. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Now, can you -- we'll get back to this screen later, but can you go to the text file that you were just discussing that has DIR and various numbers after it? MR. OSTROWSKI: I'm sorry, Your Honor, are you looking at this? THE COURT: You talking to me? MR. OSTROWSKI: Yes, Your Honor. THE COURT: I'm watching everything that's happening, obviously. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Now, I'm just, because I'm going to shift, we're going to return to that, but I wanted to stay on the -- A. Okay. Q. How would you get to the text files that -- do the text files list the various games programs or am I wrong? A. Okay. I do a wide directory. In this area called TXT are a number of text files. Here's a text file right here, DIR2, right there. Q. Now, does that correspond with games? A. Yes. Q. On the opening menu? A. I'm going to type this to the screen and pipe it through. THE COURT: 2 was the number assigned to the games on the menu screen. THE WITNESS: And type, and type, pipe it through more. This will cause the screen to pause the way I had done with that original. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. What are you doing now? A. That's a text file. It could be edited with word perfect or with anything. Of course, since it's on the physical CD ROM, ROM stands for read only. You can't change the file that's on the ROM, but if you could copy it to your hard drive and you could do anything with that particular text file. Q. Okay. Well, this text file, what's the, can you identify it by the language at the top? A. Games. Q. And the next line? A. Location of the files, 002A. Q. Now, is this your text file? In other words, did you -- A. No, that's not my -- Q. -- write this? A. No, I didn't write that. Q. Okay. Who did? A. Richard Graham. Q. Okay. A. Richard Graham -- Q. Well, you got to wait for a question. Does this 002A at the top correspond to the number 2 which is in the opening menu screen next to games? THE COURT: 2 was the number for games on the opening menu. BY MR. OSTROWSKI: Q. Is that -- does this correspond to the number 2 on the opening menu? A. No. Q. It does not? A. That has a different significance. I -- Q. Well, okay. What? A. That, that's, its significance is associated with the, with the hard drive subdirectory. That's, the physical files are located in the subdirectory area 002A. THE COURT: Is that merely a coincidence that they have the same number? THE WITNESS: No, it's not a coincidence. That was in that file for Rich's convenience, and since I saw that particular line in the file, I employed that to locate the files that were associated in the directory. BY MR. OSTROWSKI: Q. Well, on the opening menu screen you can type 2? A. Yes, you can. Q. And what does that accomplish? A. That brings up this text file, this text file. Q. Doesn't it do that by looking for that number? A. No, it doesn't see that number. That number is inside the text file that that 2 brings up. Q. Okay. When you press 2 on the opening menu screen, how does it find the appropriate file? A. When you press 2, it does, it does this. When you press 2, it does this. Type -- Q. Okay. Are you typing the source code? A. No. I'm typing in a command that's similar to what the actual code in the program does. It -- see, the code knows the file names are DIR, and those file names are DIR, so if you put in 2, it adds a 2 to that. THE COURT: Why did you put the Z: in? THE WITNESS: Because, because that's where the hard drive is, the physical hard drive is on Z drive. BY MR. OSTROWSKI: Q. You mean the CD ROM drive? A. The physical CD ROM. The physical file is on the CD ROM drive. Q. Okay. You said hard drive. THE COURT: You had talked about a hard drive Z earlier, right? THE WITNESS: Right. The program knows, when it first asks you a question, it asks you, what's the name of your CD ROM drive. You type Z, so it puts in that Z. It asks you - - THE COURT: My only reason for asking that, Mr. Ostrowski seems now to use the term other than hard drive Z, go to something else Z. MR. OSTROWSKI: You just misspoke, didn't you, by calling the CD ROM the hard drive? THE WITNESS: I was meaning -- you're right. BY MR. OSTROWSKI: Q. This is the CD ROM drive? A. It is. Q. Z? A. Yes. Q. And -- A. The hard drive is not visible on the outside of the computer but it is inside. Q. Okay. And what's that called? A. In this case it's called a C drive. Q. C? A. Yes, it is. If you had another hard drive it would be called D. Q. Okay. THE COURT: Z as in zebra, is that right? THE WITNESS: Z as, right, this CD ROM drive is Z. BY MR. OSTROWSKI: Q. Can you back to the 002, the screen with 002A at the top? Do you have to go back through the program. THE COURT: You couldn't just scroll what was on the screen? THE WITNESS: No. I -- THE COURT: Is this another case of being able to scroll it downwardly but not upwardly? THE WITNESS: Yes, Your Honor. This is using DOS. DOS is kind of awkward. The facility of the CD ROM retrieval is to give that ease of being able to go in either direction, up or down. This, this text file, the significance of this text file, it is created by PC Board. This text file was not manually just entered by Richard Graham or anyone. It's created by PC Board. THE COURT: What's a PC Board? THE WITNESS: It's a BBS program which I brought as an example. THE COURT: It's a bulletin board program. THE WITNESS: The bulletin board that I run. THE COURT: Within a bulletin board program, what is a PC Board? THE WITNESS: PC Board is a name of the particular bulletin board program. There are some more popular ones. Wildcat. THE COURT: That would be a program or board within a particular BBS? THE WITNESS: It is the name of the BBS, the trade name is PC Board. THE COURT: Oh, the PC Board is equivalent to a BBS? That's the name of a particular BBS? THE WITNESS: Yes. It's like if you have an Oldsmobile, it would be a car. PC Board is a BBS program. THE COURT: So there are not different PC Boards, there's just a PC Board that equates to a particular BBS? THE WITNESS: PC Board is a corporation, that's the name of their trade corporation, and they distribute a software package under the name of PC Board. BY MR. OSTROWSKI: Q. Let me ask you this now. Who wrote Begin Starship Simulation? A. A user who uploaded this file to a BBS wrote that, and PC Board sorted it out into that format. The software PC Board sorted out into that format. MR. KITCHEN: Well, you know, I'm going to object to that as hearsay. Unless Mr. -- unless this witness has some -- THE WITNESS: We have -- MR. KITCHEN: Excuse me. Unless this witness has some specific knowledge of the source of this particular program you just referred to as Starship and where it came from, and has some personal knowledge of it. MR. OSTROWSKI: Your Honor -- THE COURT: Well, I don't think it matters since in the first instance he said it did not come from him. He did not write it. THE WITNESS: I was there when it was being produced. THE COURT: Nevertheless you did not write it. THE WITNESS: Yes, Your Honor. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. How does this PC Board program set up files like the one that is on the screen? I believe you testified that this was a file that is created by PC Board, the program, not the company? A. Yes. Q. Not the BBS. A. How does it -- Q. The program PC Board created this? A. Yes, it did. Q. That's your testimony? A. Yes, it is. Q. How does it do that? A. When a person, one of the main concepts of a lot of people, my main concept is sharing information, typing messages, electronic mail between users. MR. KITCHEN: Objection. Not responsive. MR. OSTROWSKI: You've got to stick to the, the question. THE WITNESS: Okay. Okay. One of the main purposes in most people is to transfer -- BY MR. OSTROWSKI: Q. I'm not asking you that. I'm asking you -- A. How does it do it. Q. -- as a computer programmer, how exactly does it do it? What does the user have to do to get that -- what's the contribution of the user, what's the contribution of the program, how does it work? A. The user type U. He sees a menu and one of the options is to upload, and he types U for upload. Q. Upload what? A. A file. Q. If the user -- who provides the file? A. A user, a person that calls the board, and the reason they do it is because if they send a file, they can get a file, so they send a file. Q. Okay. The user provides the file? A. Yes. Q. And what does the program do after you press U? A. It prompts them, enter the file name. Q. Okay. And what happens next? A. The user press enter and, and he writes in a file name. In this case it would have been 165 begin .zip. Q. Okay. A. And then he types in that, and then he press enter. Q. And what does the program do? A. It prompts the user to type in a description. Q. Okay. THE COURT: Now, you used that example. It happened to be the first line of what's on the screen. You could have used any other line, is that correct? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. And do you see any, do you see any descriptions on the screen? A. Yes, I do. Q. And point that out, please? A. The third column, the fourth column over, it says Began Starship -- THE COURT: Begin. THE WITNESS: Begin Starship Simulation version 1.65. BY MR. OSTROWSKI: Q. Okay. And who would type that in at that point? MR. KITCHEN: Well, I'm going to object. Again, this is either hearsay or it is speculation. MR. OSTROWSKI: I'm asking him how the program works. He's testified he's quite familiar with the program. He's used it for years. I'm asking him how it works. MR. KITCHEN: Yes, but, but we're looking at -- THE COURT: Well, but the question you're asking, Mr. Ostrowski, is who put that particular legend for that first line. MR. KITCHEN: Right. THE COURT: He said he didn't generate it. I suppose someone types it in or gets it into the hard drive, is that right, Mr. James? THE WITNESS: That's right, Your Honor. The same way I'm describing is the way the disk was generated. I was around during a lot of this operation. I know from firsthand and I'm telling you. THE COURT: Of what importance is it, Mr. Ostrowski? MR. OSTROWSKI: I don't think it's of any importance at all. THE COURT: I didn't think so. MR. OSTROWSKI: Except that the plaintiff has made a fantastic deal out of it during the trial, that this is some original thing that he created. I think it's a bunch of bunk, and that's why I'm forced to spend some time explaining how he actually came up with it. THE COURT: All right. Go ahead with your debunking. MR. KITCHEN: Well, Your Honor, I think -- though my objection wasn't based so much on relevance as it was based on the fact that Mr. James at one point said that he was there when this was being created, and now he is, he is talking as if this first line on this list that's currently on the screen might have been done or he speculates that a user might have uploaded something. MR. OSTROWSKI: All I was asking for was an example. MR. KITCHEN: If he's speculating I object to it as a spec -- THE COURT: Well, I think by saying he was there he's trying to bootstrap his expertise, which he might not have otherwise. BY MR. OSTROWSKI: Q. Okay. Mr. James, I've been asking you about how the program PC Board works and when I asked you for a description I was asking you for an example of the type of description that a user would type in. Do you see any examples of the type of description that a user would type in on that screen? A. Yes. I see one, two, three, four, five, six, seven, eight. Q. Can you read one of them? A. A user -- Q. First one. Just read the description, an example of a description that the user would type in at that point? A. Begin Starship Simulation V, which is version 1.65. THE COURT: That's again that number one line, yeah. You could take any line, such as A blast .zip, and so forth. THE WITNESS: Yes, Your Honor. A blast .zip is a file name and the user that uploaded this file is, typed in a description, arcade type game. BY MR. OSTROWSKI: Q. Okay. After the user types in a description, what happens next in the PC Board program? A. PC Board accepts those and then it takes it through a test routine to make sure that it's virus free, and it runs other checks to see if it's a duplication already on the hard drive, and then it stamps, after you finish checking it, it stamps the file size and the file date. Q. Those numbers there in column 2, are those basically amounts of memory used up? A. The column 1 is -- yes, it's the amount of memory -- Q. Column 2. A. -- space on the -- THE COURT: Column 2. THE WITNESS: Oh, column 2. THE COURT: There are four columns on the screen, yeah. THE WITNESS: Yes, yes. The column 2, it's the amount of space on the hard drive that the physical program would occupy. It's called the file size. BY MR. OSTROWSKI: Q. Okay. Go ahead. A. PC Board stamps that in. Then PC Board also stamps the date. Q. What happens -- A. According to your computer date, that the computer, that the file was actually received -- Q. Okay. A. -- to the BBS. Q. What happens next? A. Then the user would have typed in at the file description. Q. Okay. And what happens after that? A. PC Board associates it with the -- it sends it to an upload directory. Q. What's it? A. PC Board. Q. The line that somebody has entered in, that you described? A. The PC Board is a program, it's a BBS program. Q. No. It, you said it? A. Right, PC Board. Q. The program does something to it. What is it, the line that you just, that the user has entered? A. The information that the user entered. Q. What does it do with it? A. It contact that information to a file that the user has configured as my receiving files. In this particular instance, Richard was using a generic file, UPDIR. Q. How do you know that? A. Because I set it up. Q. Okay. A. I hit the keyboard and it went to another screen, the same file but a few columns down, a few lines down. Q. Okay. What would happen next with the PC Board, the way it works? A. It would prompt the user, thank you for the upload, and the user would have a file menu, it would continue with a file menu. Q. It would produce a file menu? A. The user would continue with a file menu. Q. What do you mean by that? A. He, when he's transferring files he's uploading or downloading files from the BBS, so after he hits U and go through the sequence of contributing that file, then he comes back to a file menu and he would continue with an option to upload more files or to download files. Q. Well, after you're all done plugging in files, what do you get, what's the result? A. You get a generic file contacted with all the files that has been uploaded and it can be, you can call it by any name and by default I had set up Richard's when I set up PC Board which he testified that I set up for him, by default. You take that file and you run a program, PC Fowler, and I have the distribution disk here so you can see it run. And it will allow you to tag those files and associate those files with a specific category. The general fact category is upload. Then you want to take a lot of files. Some may be games, some may be business applications, some may be Lotus worksheets. But you take those files and according to the category you assign it a number just by hitting the key on PC Board's menu and then it will put it into that, it will contact it to either DIR-1, DIR-2 or DIR-3, whichever category you decide to set up for that particular file. Q. Now, this DIR-1, where does that come from? A. PC Board. Q. That actually appears on -- PC Board creates that line of code -- A. Yes. PC Board -- Q. -- or text? A. -- does. It creates that line of code and it use the name DIR with a number extension, with a number added to it. Q. And what will the user do? A. The user -- Q. What will the user do with that DIR-1? A. The user doesn't see a DIR-1. He sees the menu, he sees the menu that looks like the retrieval menu. He sees that file menu. He just sees a category. THE COURT: You're still calling this a menu, although we called actually the 28 item thing we saw earlier as being a menu. MR. OSTROWSKI: Is this a -- THE COURT: We went from that menu to this by pushing, getting into games, which was category 2 on the menu. I guess you're calling this a menu also? THE WITNESS: No. That's, I was referring to -- MR. OSTROWSKI: What are you -- THE WITNESS: I was referring to this menu when I said menu. It's also a text file. That's a text file. That's what the user sees. THE COURT: And that's a menu, the 28 items. THE WITNESS: It's a category menu, yes, Your Honor. MR. OSTROWSKI: Okay. THE WITNESS: It's a text file also, but it allows you to choose from one of those areas. THE COURT: It's a text file because it has words on it? THE WITNESS: Yes, Your Honor. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Is this the menu screen that is produced by PC Board? A. No -- yes. A menu -- PC Board does reduce a menu but to use it, and it looks basically like this. The user takes this menu and that PC Board produces, and modifies it to change it and to, for instance, PC Board may not have a communications area or it may not have a home personal area. You add, you add to that menu but yes. Q. Well, who creates -- THE COURT: Can you change the menu? THE WITNESS: Yes, yes. THE COURT: Deleting home personal and putting something else in place of it as item 21? THE WITNESS: Yes. Richard used this program Q. This is one that I gave him to edit the text files. The first one we used was Le Script, which is a word processor. But this one, this one has a lot of macros that made sorting kind of easy. But yes -- THE COURT: Except for the different colors, it looks to me the same as what we saw in black and white. For example, 21 again is home/personal. THE WITNESS: Yes, Your Honor. This is a text editor, and I just copied that text file from the hard, from the CD ROM to the hard drive. Now I could make changes to this. THE COURT: But you're making changes then in what you're working with on the screen and you, of course, are not changing the hard drive. THE WITNESS: Right, the CD ROM. THE COURT: Which you can't do. THE WITNESS: Yes, Your Honor. The CD ROM has not been changed. THE COURT: Right. BY MR. OSTROWSKI: Q. Okay. Now, the user I take it puts in the names of the various categories? A. The owner of the BBS, the system operator or the sysop would take those files that everybody contributes and he would just modify this generic text file for his personal entries. For instance -- Q. Now, who creates the number -- A. For instance, right here -- Q. Who creates the numbering system? A. PC Board. Q. Okay. A. It's a utility. Do you see how this says last minute -- THE COURT: Well, can the user do more than change the name of the particular item, rather than changing the text of it? For example, you're on 14 CAD programs now, and also on 28, last minute added files. THE WITNESS: Yes. On the BBS it would be, this line would say new files uploaded. But you can't upload files to the CD ROM, physical CD ROM, so in that particular case Richard chose to say, last minute files that he had that didn't have a chance to sort out. But if you haven't sorted out any files you would say, you would just say, new files uploaded. THE COURT: And in that situation, what, if you put 28 would you get a further listing of these new files which had been added? THE WITNESS: Yes, Your Honor. Those would be files that the system operator has not had a chance to verify that maybe they're virus free or that they are presentable files for his BBS, and he, he wants to look at those files before he sort them out into one of those categories. He may delete some. BY MR. OSTROWSKI: Q. Okay. Can you do -- THE COURT: I see at the bottom it says, end of file. What does that mean? THE WITNESS: The blue border, all the blue border is part of the, the identification of this text editor. THE COURT: But this end of file is within that blue border, and then of course further within that are, is a double lined box, two double lined boxes. THE WITNESS: Yes, Your Honor. This, that's part of the word processor screen. This is a word processor that we are using to look at this text file. BY MR. OSTROWSKI: Q. Okay. I'd ask you to go back to the opening menu screen. THE COURT: What's that mean? Is that the peculiarity of the machine that's sitting here? That has nothing to do with it, does it? THE WITNESS: It, it -- if we do this here, if we type Z Dir, see, that's DOS and we can't go up or down, but if I use a utility to look at the same text file -- THE COURT: Again you have that double lined boxing. I thought you had indicated that maybe it had something to do with the particular machine, such as in this case touch computer. THE WITNESS: All computers are going to have text editors or word processors. THE COURT: So there's no peculiarity due to the particular machine. THE WITNESS: Yes, Your Honor. That's correct. BY MR. OSTROWSKI: Q. Now, can you fire up the program again and get to the opening menu screen? Okay. Now, how does this -- THE COURT: Well, that's the same thing that was in there in black and white, but again, it's in color now. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Now, how does the program work in order to allow users to access the programs that are on the CD ROM? A. Okay. To access the programs, first you choose an area that you may want to go to. Q. What area did you choose? A. I choose games. Q. And how did you execute that? A. I typed in the letter, or the number 2. Q. Okay. A. Which was associated with the file and the menu, and pressed enter. Q. And what do you have now? THE COURT: And again it's the rolling numbers. Went up to the same number 534 in the lower corner. THE WITNESS: At this time I would choose something. BY MR. OSTROWSKI: Q. Well, what -- no. What I asked you is, what do you have now in front of you? A. Oh, I have a list of -- that DIR text directory list. Q. Do you have a list of files? A. A list of files. Q. A list of programs? A. File names, yes. Q. Okay. Now, what would be the next step if a user was wanting to use one of these programs? A. To move the arrow key up or down and highlight one and press enter. Q. Okay. And have you highlighted one? A. Yes, I did. Q. What's it called? A. 4 by 4, well, 4D, tic-tac-toe. THE COURT: Now you've moved it up one THE WITNESS: Yes. I was choosing up or down to choose one that would probably not be too big and take a long time to copy to the hard drive. That's what the program is going to do, it's going to retrieve it, and something I could probably actually execute. BY MR. OSTROWSKI: Q. Okay. Now, what is this, the little box there in the middle of the screen that's come up? A. It's a box, an options menu. It gives the user the option to view the contents, to do a search of the CD ROM drive. THE COURT: Now, that's what, a global search. THE WITNESS: Right. THE COURT: What's that mean? THE WITNESS: Global means search all the areas that's on the hard drive, not just the current area. THE COURT: And shell to DOS. THE WITNESS: Drop out of the program into DOS. If for some reason you want to do something that's not available in the program you could just drop out of it and type in DOS commands. THE COURT: Now, also I see there's a quit to DOS. What is that as opposed to shell to DOS? THE WITNESS: When to shell to DOS, the program is suspended and in the background and you can go back into the program without having to rerun the program, but you're out of it either way. One way, if you shell, you have some residue of the program and you have a limited amount of memory capacity that you can do. You have a certain confinement because the program is in the background. So if, to remove those confinements you would quit the program if you were going to run a different application. THE COURT: What about quit? THE WITNESS: There's a quit option on there somewhere, Your Honor? THE COURT: What does that do? Yeah. The second one down. THE WITNESS: Oh, I thought I was comparing the shell to DOS and the quit to DOS. THE COURT: Well, I thought you were, but I didn't hear you say anything about quit. THE WITNESS: Right. Well, quit would drop the program out of memory totally and give you all the resources to your computer. BY MR. OSTROWSKI: Q. Okay. How did -- THE COURT: What's that find string? THE WITNESS: That find string option would find, would just search this immediate text file, this category right here. The global search will search all the categories. BY MR. OSTROWSKI: Q. How did you get to this box, box with commands? A. I pressed enter over a highlighted file and the file that was highlighted when I pressed enter, that would allow me to decide how I want to handle that file. Q. Okay. So what would step 3 be in order to get access to this tic-tac-toe, is that the program we're heading for? A. Yes. Q. What would the next step be? A. Okay. This is elements of retrieval and in this particular case I could extract the program to my hard drive, which it would actually unzip the program and create it on the hard drive, retrieve it from the CD ROM disk, or I could -- THE COURT: Wait a minute. Now you're talking about creating something on the hard drive. THE WITNESS: Right. From the -- THE COURT: From the hard drive or -- THE WITNESS: From the CD ROM disk. THE COURT: Putting in on the hard drive. THE WITNESS: Yes, Your Honor. Of course, again, this disk has over 500 megs of programs on it, and with the next command, rather than search each of those and type in DOS commands, this utility will allow you to hit C to copy it from that to your hard drive where you can use it, because you can't modify it on the CD ROM disk. Or you can extract it. Do you want me to extract it? THE COURT: This is a relatively small program, less than 18,000, is that right? THE WITNESS: Yes, yes, Your Honor. BY MR. OSTROWSKI: Q. Can you use that program on the hard drive -- on the CD ROM drive? A. No, you cannot. Q. Why not? A. It has to be taken off because the CD ROM disk is a read only media. That's why, it's call ROM. Q. So you, you couldn't write in your next tic-tac-toe move on the -- A. You couldn't extract it. You couldn't even open it up. It's -- Q. It's useless on the CD ROM? A. Yes, it is, totally. Q. Okay. So the next step -- THE COURT: Well, it says enter choice now. Doesn't that give you some option? THE WITNESS: Yes. THE COURT: Among the eight that you're shown. THE WITNESS: Those are the options. You type in one of those highlighted letters, one of those emphasized letters. BY MR. OSTROWSKI: Q. None of those options allow you to use the program on the CD ROM drive, do they? A. No. Q. So -- A. Each one of them -- either -- all those options allow you to retrieve the program off the CD ROM media. Q. Okay. So what would the next step be in getting this program onto the hard drive? A. I would hit X and -- Q. What, you would hit X? A. X. Q. Standing for what? A. Extract. Q. And what is the program doing now? A. It just retrieved it. Q. What did it do? A. It just retrieved a file off the hard drive. Q. And put -- well -- A. Off the CD ROM media. Q. We've got C and Z and now you're confusing the two drives. A. Now I -- Q Where did it retrieve the program off of? A. It received, retrieved the program off the CD ROM disk. Q. And where did it put the program? A. It put the program on the hard drive disk where it could be used. Q. So that was basically, was that just a copy command, or copying? A. It was a little bit more than copying. Q. What else, what more was it? A. It extracted it, opened the contents of the compressed file that was archived. Q. Did it unzip it? A. Yes, it did. THE COURT: When you take material off the CD ROM, you put it on the hard drive and execute your programs, do you then erase it, so to speak, from the hard drive in the end? THE WITNESS: Yes. That's the most ideal situation because, because this physical hard drive, I happen to know that James' capacity here is 130 megs. MR. KITCHEN: I'll object to his response beyond yes, Your Honor. THE COURT: So what? THE WITNESS: And the media here is 600 megs and a person, you know, might be very interested to look around at a lot of programs and every time you open a program, it -- I picked out a small one but some of them are relatively big, the hard drive would be full in a very short period of time. THE COURT: What's the capacity of the hard drive? THE WITNESS: 130 megs. BY MR. OSTROWSKI: Q. On Plaintiff's Exhibit 37, which you ran yesterday, were you able to unzip, using the file retrieval? A. No. Q. Okay. What would the next step be -- what is this screen here, what kind of screen is this, what does this tell us? A. This is a utility, separate from the CD ROM retrieval program. It's separate from the program. It's allowing you to list the files and you can list the contents and read the documents or you can execute the program. In this case it's ROM. Q. Well, let me ask you this. In other words, this is a, this is a program which is on the hard drive of the computer that you brought into Court? A. Yes. Q. Well, would the typical computer user have this utility? A. A typical -- MR. KITCHEN: Objection, Your Honor. THE COURT: What's the objection? MR. KITCHEN: As to what the typical computer user would have. THE COURT: I'll allow it. THE WITNESS: No. The typical user would have something to look at the files. Most of them would probably have edit because that with DOS. BY MR. OSTROWSKI: Q. Well, what I'm asking you is, does the fact that there's this -- what's the name of the program that you're using now? A. List. And it allows you to further go into and run the program. Q. Does the fact that this list program is already on the computer you brought into Court give you any special advantages in running the CD ROM and taking programs off it? A. No. Q. It's a standard type of program? A. No. If a person didn't have -- everyone is going to have a program edit or something. That would be standard, a DOS command, a standard DOS command. Q. Okay. Can you get back to where we were with the -- A. This program is stubborn. It's making you play the first game. It's a game and games -- Q. Well, let me ask you this. How did you get into -- you're into the tic-tac-toe program now? A. Yes. Q. How did you get in there, because that all happened pretty fast? A. I just selected it and pressed enter, and I followed the instructions that was on the screen. Q. Okay. But the program that you used to get into the tic- tac-toe, once you had unzipped it, that's not in your file retrieval, is it? A. No. It's a variable that I put into the file retrieval. It's a variable that would -- Q. What do you mean by that? A. It allows the user to use his own preference utility to handle the files that he pulls off the CD ROM disk. Q. Did you write a module which anticipates that the user would have some sort of a utility? A. Yes, I did. It's part of the config -- if I go install I tell you the utility that it does. I can show you. Q. Well, can you show us what would happen if the user didn't have that utility? A. Yes. I would have to de-install this program. Q. Which program? A. Right here. I'm going to delete the Night file. THE COURT: Right here doesn't mean anything because the record can't take a picture of where you are and what you're doing. THE WITNESS: I'm going to delete all -- THE COURT: You've got to say something about what you mean, right here. THE WITNESS: I'm going to delete all the files from Night Owl, delete them all. This is a Night Owl configuration. BY MR. OSTROWSKI: Q. Delete them from where? A. From the hard drive. See, when you install the program, it will create a configuration so that you don't have to type in this anymore. You just type it in once. Now the program -- Q. Are you getting rid of the utility that you just used? A. Yes. Q. Okay. Now, is it gone? A. It's gone. Q. Okay. Can you go back to where you unzipped the tic-tac- toe? THE COURT: I saw the word Apollo there in the left- hand column. Is that you? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Is that a program that was on the computer before it came into Court? A. Apollo. Q. The menuing program? A. Where is Apollo, Your Honor? THE COURT: Top left. THE WITNESS: Can you look again, Your Honor. Oh, oh, okay. I'm sorry. I was looking there. Yes. This is a menu program and some of those programs, they, like Word Perfect, that's just a menu item. THE COURT: I only called your attention to it because I remember your saying that that was your name. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. Is this directory on my computer? A. Yes, it is. Q. Okay. A. Okay. I'll run Night. Q. Okay. Go ahead. A. And I destroyed all the configuration files so when a person gets to the file, the first they would do is be prompt with where they're going to put their configuration files. Q. Okay. Well, can you set up the CD ROM so that it works? A. Okay. This option right here says, preference utility with shell extract. Q. What does that mean? A. That means whenever, after you have extracted a program, pulled everything off to see, retrieve the files off the hard drive, what do you want to do with those files. Q. Okay. And what's your option here? A. And you can type in a name or type in non. Q. What's the best thing to do? A. Type in the name of a utility that's on your hard drive. In this case I'm typing in the word non. Q. Okay. So is this where the user would tell your file retrieval what kind of program they already have to interact with? A. Yes. Q. Your file retrieval? A. Yes, it is. Q. Okay. And did you already demonstrate how that would work if they had that program? A. Yes. Yes. I hate to put non because every computer user is going to have a program on its hard drive because it's even shipped with DOS. Q. Okay. Well, let's assume that you had nothing and let's see what happens? A. Okay. I was -- THE COURT: Not nothing, but non, right? THE WITNESS: I would say non. But no one would ever have to say that. They could even say, put in, type in the word DOS Shell. Now it's installed. BY MR. OSTROWSKI: Q. Okay. Can you get the games category up there. THE COURT: We're doing the same thing we did before, aren't we? MR. OSTROWSKI: Except that I -- what happened is, Your Honor, that the computer that I brought into Court had a program on it that interacted with the file retrieval and I think it's important to show what would happen if there is no program. Well, okay. You went way too fast for me. You're already into the -- THE COURT: Oh, we're back to where we were before. Dr. Ed's Four Dimensional Tic. MR. OSTROWSKI: Yeah. You're going to have to back out, Mr. James, because we don't know how you go to that point. THE WITNESS: Okay. MR. OSTROWSKI: Okay. You've got to go back and -- THE WITNESS: Should I explain it? MR. OSTROWSKI: Well, I want you to -- THE WITNESS: As I go? MR. OSTROWSKI: Yeah. THE WITNESS: Okay. MR. OSTROWSKI: You've highlighted the -- THE COURT: Well, I don't know. Leave it up to Mr. Ostrowski. Do you want him just to have a running narration, Mr. Ostrowski? MR. OSTROWSKI: Well, I want him to go step by step and explain each step very briefly. You've highlighted the program? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. What's the next step? What did you do? A. Press enter. Q. Okay. And you have the options there? A. Yes. Q. What would the logical option be to get to the program? A. Extract. Q. Okay. And did you execute extract? A. Yes, I did. Q. Now, where are you in terms of using the tic-tac-toe program? A. You're on the hard drive. Q. And what, what did you just do there? A. I typed in DIR. Q. Why did you do that? A. To see what, to see the contents on the hard drive. Q. And what do you see there as the contents? A. I see the programs that I just retrieved off the CD ROM disk. Q. And do you have any indication there as to how to run the program? A. There's a run com on there. I run that. Q. Exactly what would you type in? What did you type in? A. Run 4D. That's tic -- what's there. Q. Now, why did you type in all that dash tic stuff? Was that information on the previous screen? A. No, it wasn't. Q. Well, where did you get that from? A. That particular program that I arbitrarily picked up, picked out, is not a DOS program, is not a DOS executional program. It's a very special program. It's very special and unique. The instructions are right there. Q. You typed in run, and what else? THE COURT: Now, at the top left it said good-bye. THE WITNESS: What a person might consider typing would be this right here, to look at, see that documentation there? BY MR. OSTROWSKI: Q. No. What I'm asking you is what you did, what did you type to execute the program? You typed run, and then something else? A. Yes. Q. What else did you type? A. 4-tic.chn. Q. And where did you get that informa -- what does chn mean? A. That's a -- Q. Oh, I'm sorry. I'm looking at the wrong line. A. That's an extension. THE COURT: Well, you were looking at 4Dtic.chn. BY MR. OSTROWSKI: Q. Okay. So you, the information that you typed, did you get that from the -- where did you get that from, is that a directory there? A. No, it's not a directory. Q. What is it? A. That's a file. That's a -- Q. It says directory here. What I'm saying is, is this a directory, the bottom half of -- A. Yes. I got it from the directory. Q. Okay. A. Off the C drive. THE COURT: Now, near the bottom it shows that you've got over 53,000,000 free bytes or bytes free. Is that right, is that an indication of unused capacity? THE WITNESS: Yes, it is. BY MR. OSTROWSKI: Q. Okay. Can you go back to the main menu of the file retrieval? A. That was a prompt there. Should I make a comment before I do it? Q. No. Just, what do you have to do to get back to the main menu? A. Well, I would have to answer that prompt. Q. Okay. What's the meaning of the prompt? A. The meaning of the prompt, every time a person takes something off a CD ROM disk he puts it on the hard drive, and like I said, this prevents it from filling up because it prompts the user if you want to delete those files just created in the work area, and it shows the user the work area so that he doesn't make mistakes and think that he's deleting something, his Word Perfect files or something. Q. So what would the natural step -- THE COURT: And just above that is that same code, so to speak, with the word exit. THE WITNESS: Yes. Yes. So I'll hit yes and it should delete those files. BY MR. OSTROWSKI: Q. Okay. And then what, what do you do next? A. Then I press enter and deleted those files. Q. Okay. You've shown how to access unzip and run a program. What else does your, use your file retrieval someone to do? A. It allows you to copy files from the CD ROM disk. Q. Copy files. Well, but didn't you do that already in running the tic-tac-toe? A. Well -- THE COURT: What do you mean by copy, printing it out on paper? THE WITNESS: Okay. I could copy -- THE COURT: Is that what you mean? THE WITNESS: No, Your Honor. THE COURT: What do you mean? THE WITNESS: I mean reproduce the file on a different media, like on a floppy disk to give it to a friend on the hard drive. THE COURT: All right. So you could take it off your hard drive and put it on a different disk, is that what you're saying? THE WITNESS: You take it off the CD ROM drive disk, Your Honor, and put it on the hard drive or a floppy disk. MR. OSTROWSKI: Okay. THE COURT: Put it on the hard drive or a floppy disk? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. What else can you do with your program? I know you've discussed some of these things, so I mean, skip over shell to DOS, quit to DOS. What, under utilities, what are you allowed to do there? A. You can run that utility. For instance, see right here, that user preference utility. You could change that from right within the program and see, at this particular instance there is nothing there. Q. Okay. You can go back and, we deleted the utility? A. Right. Q. It made things pretty easy. You can go back and put that back in? A. Right. That's what the utility is for. Q. Extract, now that's what, you've already done that, right? A. Yes. Q. What is this view contents again? A. Oh, you might want to view the contents of the, of one of the files on the CD ROM disk without actually copying it off the disk. Q. Find string. I don't recall what that was or if you -- A. You can hit F and it will find something. Let's say you want to find, I don't know if PacMan is on, it would be as one of the games, but if it was, and you press enter. Q. Is that a search type of command? A. Yes, it is. Q. You're searching for a word? A. In fact it did. It found PacMan. Q. Okay. A. So there are, you know, if I was looking for a specific type of game. If I was in the educational area, I might look for Tutor. Q. Can you go back to the command option screen, the black screen? Does your program do anything that isn't listed on that command screen? A. This utility? Q. No, this file retrieval program? A. This doesn't necessarily. Q. Okay. So you as the author, you -- THE COURT: Wait a minute. I don't understand that answer. Does it do more than what's shown in your options. And I didn't understand your answer. MR. OSTROWSKI: That's a yes or no question. THE WITNESS: No. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. So you as the author don't have any secret information about extra capacities of this particular program? A. Yes. Q. You do not have. THE COURT: Yes, what. You don't have? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Yes what? A. Yes. I don't. Q. You do not. Okay. Why don't we go to the -- THE COURT: Why don't we take -- are you through with this or are you going to do more on this one? How much more are you going to do on -- MR. OSTROWSKI: Just going to print out the exit -- THE COURT: -- Plaintiff 5? MR. OSTROWSKI: Just going to print out the exit screen, Your Honor. Maybe another minute. THE COURT: All right. BY MR. OSTROWSKI: Q. Can you, when you're all done -- well, just tell me, after you run the, after you run your tic-tac-toe, how did you get back into the program, or back to your -- we got back to the listing of games programs. How did we do that, how did you do that? A. Oh, you would press escape. That's normal key to back out of anything. Q. After you've lost your tic-tac-toe with the computer, you can press escape? A. Yes. Q. And get back to your, and run -- back to the screen and run another games program? A. Yes, you can. Q. Okay. When we're all done for the day, how do we get out of the program? A. You press escape to back out. Q. Did you do that? A. Yes, I did. Q. Okay. Now we're back to the main menu? A. Yes, we are. Q. And is there an option there for exit? A. Yes. Zero. Q. Okay. And can you execute that exit? A. It asks you to confirm if you want to exit. Q. Okay. And why do you have that command in there? A. Sometimes a person might make a mistake and hit the wrong thing, something they don't intend to. Q. Okay. And you're ready to exit? THE COURT: So what did you do? You got rid of the quit, yes, no, by putting, hitting N? THE WITNESS: It, yes, it defaults to N. THE COURT: So you'd hit N and that took you back to where you were. THE WITNESS: Yes. If you hit Y, then it -- THE COURT: Now if you hit zero again you come back to the quit, yes, no. THE WITNESS: Right. THE COURT: You verified by hitting yes. THE WITNESS: Yes. MR. OSTROWSKI: Okay. Is that a screen that's going to disappear? THE WITNESS: Yes. It will give you a DOS prompt. BY MR. OSTROWSKI: Q. Have you frozen that? A. Yes, I did. Q. How did you do that? A. Pause. Q. Pause. Okay. Can you print that out? Were you able to print that? A. I think you have to push reset to make the printer. Q. Press reset on the printer? A. Yes, to make it eject the paper. THE COURT: This would be 5-B? MR. OSTROWSKI: Yes, Your Honor. BY MR. OSTROWSKI: Q. Showing you Plaintiff's 5-B, is that what you just printed out from Plaintiff's 5? A. Yes, it is. MR. OSTROWSKI: I'd offer it into evidence. BY MR. OSTROWSKI: Q. Now, did you -- THE COURT: Wait a minute. It's been offered. MR. KITCHEN: Okay. I have no objection except, with the proviso that the last two lines showing, which say type exit to return to a menu: and then a bracket Z:\ greater than sign, is not part of the paragraph above it. MR. OSTROWSKI: Perhaps you could just white it out. MR. KITCHEN: Well -- THE COURT: Or leave it on. MR. OSTROWSKI: Okay. MR. KITCHEN: Okay. Fine. BY MR. OSTROWSKI: Q. Now, did you write this screen? A. Yes. Q. And what was your intention in putting this notice on there? Well, let me ask you, with respect to the copyright, copyrighted C April 1991, retriever program written by Larry James. Did you write that? A. Yes, I did. Q. And what was your intention in writing that? A. To promote sales of my product. Q. The copyright screen? A. No. Q. The copyright line? What was your intention in putting a copyright notice? A. Oh, to reserve my rights. Q. Okay. And who is the owner of this program? A. I am. MR. OSTROWSKI: I'm done with this disk, Your Honor. THE COURT: All right. We'll take a recess. (Recess taken.) CONTINUED DIRECT EXAMINATION BY MR. OSTROWSKI: Q. Okay. I'm showing you Plaintiff's Exhibit 39. Can you identify that by the version number? A. It says Night Owl. It has a W, that's the first time I've seen a W. I can't read those letters without my glasses. THE COURT: I can't read it with these glasses. MR. OSTROWSKI: Technology, and then there's a phone number. BY MR. OSTROWSKI: Q. But can you see the serial number, the version number? A. It says PDSI0041. Q. Okay. Can you fire that up in the CD ROM drive? THE COURT: If you can't read without your glasses, what are you running the machine without them? THE WITNESS: I do it kind of by memory, knowledge. MR. OSTROWSKI: This is the first I heard. THE COURT: Can you read the screen? THE WITNESS: If it's on the computer I can handle it. THE COURT: I see. BY MR. OSTROWSKI: Q. Okay. Where are we now? Did you type Night? A. Yes. Q. And what does the message on the screen say? A. It says evaluation copy, not for resale. Environment I set to Night area. Q. What do you have to do now to set the environment? A. You have to press enter. There's a significance with that evaluation copy. Q. Well, what is the significance of evaluation copy? A. I didn't mean for this, this to be published and I told Richard to let me know when he was ready and I was going to put the serial number in. Q. Okay. What -- THE COURT: Putting that on, you did that? THE WITNESS: It's all part of the program. THE COURT: You put it on? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Did you intend that the file retrieval that's on this disk be actually published on CD ROM's? A. This was the version I was preparing -- THE COURT: Can you answer the question? BY MR. OSTROWSKI: Q. Yes or no? A. Not this particular program, no. Q. What, now on the upper right hand corner, can you read the last word on the line? A. Beta. Q. Okay. What is the meaning of the word beta there? A. That it's still being tested and set up. Q. Okay. THE COURT: Still what? THE WITNESS: Being tested, in testing stage. THE COURT: The word beta means that? THE WITNESS: Yes. Alpha means it's totally wrong and may not work, may have a lot of bugs in it. Beta means that it's still in the process of being developed and still has bugs but not ready for the public. THE COURT: Where does that word come from? Is that a trade word? THE WITNESS: It's a trade word, Your Honor. BY MR. OSTROWSKI: Q. Now, are you -- what do you do next to run, run the program? A. Well, the program recognize that there's no configuration in its set up so it prompts you for your default area, to, your work area, which should be Night. Q. Okay. And -- A. By default. Q. Can you type that -- oh. A. You can just press enter. The program is designed to do just about everything for you. Q. Okay. Is this your program? A. Yes, it is. Q. Okay. Continue. A. It asks the default name of the CD ROM drive. It defaulted to drive S. At the time mine defaulted to drive S, but, I later -- THE COURT: This is yours, but still you're referring to something else that is, quote, mine, unquote. THE WITNESS: My physical CD ROM drive was S, and that's why I put the S as a default into my retrieval. BY MR. OSTROWSKI: Q. Okay. So what do you have to do on this computer? A. Set it for Z because this computer CD ROM drive defaults to Z. Q. Okay. And what's the next step? A. The program recognize that if your drive is Z then your text files are probably on that same drive, so it drives to Z from that line. THE COURT: You're saying the drive of this machine is Z for zebra? THE WITNESS: Yes, Your Honor. THE COURT: Whereas yours is S for Samuel. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. And what would the next step be? A. Press enter. It asks you for your default utilities. This computer does not have that QF. Richard's had a utility called QF, Q -- Quick File, so I put that in the Quick File so that Richard could use it with convenience. For my own preference it's list. Q. Well, is list the program we used before? A. Right. List is a program that, that happens to be on my computer, and it's more common than QF. THE COURT: Are you saying this or list or what? THE WITNESS: L-I-S-T. THE COURT: List. THE WITNESS: Yes. In fact, list is on just about everybody's computer these days. BY MR. OSTROWSKI: Q. Okay. What's the next step? A. To press enter, and it asks you if you want to confirm and accept those changes, or no to make changes. Q. What would the logical step be? A. Yes, to accept the changes. Q. Okay. And what's the next line? A. It prompts you to update the auto EXE batch file. That's a file that, that the first program that runs when you first turn on the computer, and it automatically types in a lot of commands for you. So we don't want to change your default, you know, boot up, so we can say no to this prompt. Q. Okay. Now, what do we see here? A. It says type install to continue. Q. Okay. You can do that. What did you just do there? A. The first time I hit enter I didn't, I didn't hit it right. I had to hit enter to continue. Q. You didn't connect with enter the first time? A. Yes. Q. Okay. And what do we see on the screen now? A. The top of the screen has, it says Night Owl CD ROM File Retrieval Program, Version 2.0371 Beta, and it's a category screen. Q. Okay. Now, what, in what language did you write the file retrieval that's on this CD ROM? A. In C. Q. Okay. Is there -- what's the -- is there a similarity between this menu screen and the Plaintiff's 5 menu screen? A. Yes. Q. What's the similarities, what are the similarities? A. There's a screen, a block of text with numbers and categories, categories that are, that has associated numbers with them which will allow you to go to specific areas. Q. What are the differences, if any, between this menu screen and the one on Plaintiff's 5? A. Plaintiff's 5, that's PDSI, which? Q. PDSI004. A. The screen, the charts and options are -- THE COURT: Excuse me. What did you show the witness? MR. OSTROWSKI: Plaintiff's 5, which is PDSI004. BY MR. OSTROWSKI: Q. What are the differences? A. It's not significantly different from the user's perspective. You pick options to indicate a area to go into or to set up your computer. Q. Do you have any, from the opening menu screen, do you have any more options on here than you did on the Quick Basic which is on Plaintiff's 5? Yes or no? A. There are some utilities that's in the program that don't show, but no options from the user's perspective. Q. Well, I asked you that about the Quick Basic, if there was any hidden potential that the user didn't see. Is there any hidden potential in this program that the user doesn't see? A. I use this for producing CD ROM disks. I use it for producing, I mean, shareware disks for distribution, for my own personal use. Q. Well, what I'm asking you is, are there any commands in this file retrieval that are of use to the, to using a CD ROM, this CD ROM, that are not indicated by the commands either on this screen or any other screen? A. Yes, there is. Q. And what are they? A. An option to create text files and copy disks and make labels for making shareware programs. Q. And why are those on there and not labelled for the user? A. I was, I gave a copy of my program to Richard to use, you know, for his specific needs, and he didn't have a need for making a shareware floppy disk. Q. Okay. And this program can be used for other purposes, other than allowing a person to use a CD ROM? A. Yes. Q. Okay. What would the next step be if we were going to use a program like tic-tac-toe? A. I would hit 2 for the games area. Q. Okay. A. And then press enter. Q. And what happens then? Is it working? A. Yes, it is. That was a scroll bar that I -- I mean a twirling bar that would have been displayed at this particular time. Richard published the disk before that action was turned on. Q. Oh, you mean it's actually in the source code already, that capacity, or did you have source codes somewhere else that you could have put in? A. It's in the libraries, the ones for copying disks is in the source code. That one may be -- what I do is comment out some of the options that I'm not going to use, I just comment them out. And some of the ones to make the code smaller, I'll even tag it, you know how you cut and paste Word Perfect programs, I'd tag it and extract the whole things out. But some you can't because some of the programs are relative to some of the others ones and they just have to be in there. But in the case of the twirling bar that wasn't necessary. But I did put it in on the copy that was on Richard's hard drive. He didn't use it because he couldn't get my serial number, I mean my copyright notice, out of it. He was having problems with that part. Q. Did you want the program released without the, without all of the potential of the program being used? A. No. That's why I -- Q. Well, it -- A. -- had put evaluation copy on it because I was hoping that Richard would reserve and wait. Q. Okay. Do you -- is the other program that we used on there, the tic-tac-toe? Well, let me ask you before that -- THE COURT: We got that 4Dtic which is the same thing we came up with before. BY MR. OSTROWSKI: Q. Can you explain this tag function? A. You can hit, this is in the other program also. You can hit -- Q. We didn't go into that in detail in the other program. Is this function on there? A. Yes, it is. Q. In the Quick Basic version? A. Yes. Q. Okay. And what is the purpose of it, what can it do? A. It allows you to tag files. Q. And once you tag a file, what -- THE COURT: What do you mean by tagging files? THE WITNESS: For instance, this highlight bar is highlighting files. It just highlights something. But if you press a space bar, that file gets highlighted also but the bar moves and you can still select other files. And the one that you highlight is actually tagged, and when you handle the file -- THE COURT: It's like a memory button on a VCR that you come back to that point? THE WITNESS: Yes, Your Honor, and when you, when you go to handle the file, it gives you the option to handle the tag files or the ones that just happens to be highlighted. BY MR. OSTROWSKI: Q. Okay. So this, can you go to the command screen? Okay. Was this, is this similar to the command screen on the, on Plaintiff's 5? A. Yes, it is. Q. Okay. Was the view zip on Plaintiff's 5? A. No. Q. Okay. What is the view zip all about? A. I'm sorry. The view zip was there. Q. Okay. What is the purpose of view zip command? A. It allows you to view a file without extracting off the hard drive. Q. Okay. What would the next step be to get access to this tic-tac-toe file, or did you actually tag that? A. That was one of the ones that was tagged. Q. Can you untag the others or -- okay. Can you -- do you have to tag it in order to extract it? A. No, you don't. You just highlight it. Q. Okay. What would the next step be, extract? A. Yes. Q. Okay. Can you extract it? A. That was a pretty poor choice for the first time. I choose a small file. Sometimes small files don't be really good for running. Q. Okay. What is happening, or what has happened already. We saw an intermediate screen which disappeared. A. It opened up this file, and -- Q. You mean unzip? A. Yes. Q. We've been using the word unzip, so -- A. It unzipped the file. Now it allows you to press enter. THE COURT: Up at the top right it says CAT#2. Does that correspond to the 002 that was on your directory listing? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Where is that number? I'm sorry. A. Right there. Q. Okay. So what is the screen, can you delete the red screen just for a second? What is, this blue screen, is this a directory of some sort? What does this represent? I see three programs there. What does it all mean? A. It does basically what that list utility did before. Q. Okay. What are these, what are we ready to do with these programs, if anything? A. You can run a program or you -- these are not DOS programs that you can normally run, as I mentioned before. They require a certain, certain utility. Q. Okay. We're in that list utility, correct? A. Yes. Q. Okay. What, if we wanted to run the tic-tac-toe, what would we do from the list facility -- utility. I'm sorry. What command would you hit? A. This is not going to allow you to run it directly. Q. Why not? Why not? A. You -- this - Q. Why not? Just don't, please don't type in any commands until I ask you a question. THE COURT: Did you answer the question, why not? THE WITNESS: Because the program there is not, the 4D tic-tac-toe is not a batch file. It's not a com file and it's not a -- THE COURT: It's not a what? THE WITNESS: It's not a batch file. It's not an executional file. BY MR. OSTROWSKI: Q. Well, what about the second file there, isn't that executable? A. Yes. Q. What program is that? A. It's ROM. I can execute it. Q. Okay. Well, why don't you execute that one? A. I just did. Q. Okay. It's just a little program that doesn't seem to do anything? A. You could handle it on a command line. Q. Okay. A. The same way we did it before, you can handle it. See right here. You can type ROM. See, 4d tic. This is what we did before. Q. Can you go back to the menus -- well, yeah, except I don't know how you did, got through there. Can you go back to the menu screen and pick a program that we can execute out of the list utility? A. Okay. THE COURT: I noticed once before when we had that game screen up, it was in that same position, namely at the start, and then there was an intermediate thing that showed in the middle of a play. How did that come about, or don't you remember? THE WITNESS: Yes. I typed run 4d tic-tac-toe. THE COURT: Before the recess? THE WITNESS: Yes. And then the options came up. THE COURT: I just wondered why you came out in the middle of playing the game, so to speak, as opposed to these two starting situations. Not that it matters. BY MR. OSTROWSKI: Q. You're back to the list of games programs? A. Yes. Q. Can you pick a program that you can actually run? A. That's 4D pong. That's a ping pong game. It's an executional file. Q. Did you just -- THE COURT: Should we be wasting our time playing games? MR. OSTROWSKI: Well, we hadn't really executed a game, Your Honor. I wasn't going to play -- THE COURT: Need we? MR. OSTROWSKI: I was just trying to demonstrate how we, how the program works, and we got followed up, as far as I can see, because we picked the wrong program. BY MR. OSTROWSKI: Q. Did you unzip that program? A. Yes. It's unzipped and that is on the hard drive. Q. And how do you run it at this point? A. Just by pressing enter. Q. Enter. Okay. Can you do that? A. It asks you if you want to hit Y, which I did. Q. Okay. This is the program? A. Yes, it is. Q. Okay. How do you exit out from the program? A. I press escape. Q. Okay. And -- THE COURT: But you could have gone further into the program. One of the options I saw was, quote, joystick, unquote, which I suppose is a manipulative device. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. And what do you, what's on the screen now? A. It's flashing, press any key to return to the Night, because we didn't play the program, we just hit stop. Q. Okay. Can you press a key and we'll get back to Night. Okay. Now, how would you, if you had, if you didn't have the list program I take it -- just explain how you would go about using the program. In other words, if you didn't have this -- A. That's not a list utility. Q. Oh, I'm sorry. Well, I'm all confused then. This is the file retrieval itself? A. Yes, it is. Q. Producing this screen? A. Yes, it is. Q. Okay. Well, I stand corrected. THE COURT: You have 3D pong at the top and you have a 3D pong in the bar of the middle. What's the -- one says EXE, the other says ZIP. THE WITNESS: This right here is the retrieval program telling you a name of the program that it took off the CD ROM disk. THE COURT: And just for the record, when you say here, you're pointing to the bar at the bottom of the screen. THE WITNESS: Yes, Your Honor. The bar at the bottom of the screen is a status information indicating the program that was pointed to on the physical CD ROM disk. The bar at the top of the screen is highlighted, is indicating the name of a utility that happens to be on your hard drive that has been extracted and pulled from the CD ROM disk. THE COURT: Oh, the bottom bar what, tells you that that particular program has been unzipped and is being shown? THE WITNESS: Yes. The word just in front of it indicates how it's being handled. THE COURT: What word? Viewing? THE WITNESS: Yes. THE COURT: There's nothing to it? Just a black bar at the top of the blue screen? THE WITNESS: That's the contents of that file. THE COURT: The total contents? THE WITNESS: Yes, Your Honor. That zip file just happens to have one executional file that you can run and play a game with. THE COURT: Oh, there is something you can go further and play, execute it and play. THE WITNESS: If you press enter, it gives you the executional options. You can compare -- THE COURT: So if you press yes now -- THE WITNESS: You can confirm it and execute whatever that program would do. THE COURT: If you push yes now, what happens? THE WITNESS: It -- MR. OSTROWSKI: Why don't you do that. THE WITNESS: It executes the program. BY MR. OSTROWSKI: Q. This is the program? A. That's a program that was on the CD ROM disk. THE COURT: What you have on the screen now is, quote, the program, unquote? THE WITNESS: Yes, Your Honor. THE COURT: And all it says is, bounce zones, select graphic mode, 1 CGA mode, 2 EGA mode, 3 exit to DOS. Is that the program? THE WITNESS: Yes, Your Honor. MR. OSTROWSKI: You haven't actually -- THE COURT: Why do they call that a program? THE WITNESS: Your Honor, this particular program is giving you options to set up the type of monitor system you have. For instance, if you have a CGA monitor. THE COURT: This is an invitation to produce a program? MR. OSTROWSKI: Is this the menu screen for the program? THE COURT: Wait -- THE WITNESS: That's one of the menu options of that particular program. THE COURT: To produce a program? THE WITNESS: To continue using it. THE COURT: What are you using? What I see, you told me what's on the screen now is the program. THE WITNESS: Yes, Your Honor. It's the program. THE COURT: How do you use the program? THE WITNESS: This, by choosing the monitor type and choosing the input devices you mentioned a minute ago, Your Honor, and now you have other options of saying whether you want to use the program at a difficult level or if you want to have it, play it at a, you know, easy level. But all these are options that you can, you can manipulate the program, this particular program, and play it according to the way you would be pleased with. BY MR. OSTROWSKI: Q. Okay. Can you exit out of the program and get back to the main menu? A. I'll press escape and it, now a menu, now the retrieval program is prompting you to press in a key to continue back into the retrieval. Q. Okay. And can you press any key? A. Now we're back into the retrieval. Q. You're back into sort of an extract file, or what is that? A. This is a menu option. It's a list of all the files that you have in your work area on the, on the hard drive that has - - Q. That you extracted? A. Yes. Q. Okay. A. This back here has been extracted. Q. Can you get back to the next level? A. Okay. I pressed escape and now it prompts you if you want to delete the files. Q. Okay. Why don't you delete them. THE COURT: It says, delete files just created. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. That's to save space on your hard drive? A. Yes. Q. Okay. Can you -- are they deleted, all files? Was that a warning signal that my computer is about to be destroyed? A. Yes, it is. Q. Well, maybe you shouldn't delete the -- okay. Are we back to a list of game files? A. Yes, we are. Q. How do we get back to the main menu? A. By pressing escape. Q. Okay. Now we're back to the main menu? A. Yes. Q. Now, did you -- were you able to pick -- were you able to see the types of game programs that exist using this file retrieval? A. Yes. Q. And pick one and extract it? A. Yes. Q. Unzip it? A. Yes. Q. Execute it? A. Yes. Q. Finish the program? A. Yes. Q. And get back to the file retrieval? A. Absolutely. Q. And did you, did you do all those things using the file retrieval itself? A. Yes. Q. Okay. Now, can you just exit out? How do you exit out of the main menu to -- A. IQ and press enter. Q. Okay. Is a confirm command there? A. Yes, there is. Q. Where are we now? A. We have a DOS prompt. Q. Okay. THE COURT: You have what? THE WITNESS: We have a DOS prompt. BY MR. OSTROWSKI: Q. Was there a, is there a copyright notice in the program? A. No, there's not. THE COURT: Well, it says Microsoft, Microsoft Corp. Does it not? THE WITNESS: Yes, it does. BY MR. OSTROWSKI: Q. Okay. Is there, did you put a copyright notice in the -- A. Yes, I did. Q. And where does it appear, if anywhere? A. It doesn't appear. This is not the same disk that was being distributed. Q. Okay. I'm going to ask you to fire up Plaintiff's Exhibit 7. MR. KITCHEN: Your Honor, I'm going to object because this demonstration, I think, has been misleading. He's indicated -- THE COURT: It's what? MR. OSTROWSKI: It's not a proper objection. THE COURT: No, but I didn't get you, you said it's what? MR. KITCHEN: The -- THE COURT: You said it's -- MR. KITCHEN: The demonstration is -- THE COURT: I know, you used a noun there or adjective I didn't catch. MR. KITCHEN: Yes, it was misleading, Your Honor, because he -- THE COURT: Oh, it's misleading. MR. KITCHEN: He said he's exited and he hasn't. MR. OSTROWSKI: Well -- THE COURT: Have you exited, have you exited, Mr. James? THE WITNESS: I can put a disk back in. I thought I did. THE COURT: Well -- THE WITNESS: Okay. MR. OSTROWSKI: Okay. What's the problem? THE WITNESS: It has to initiate the drive. You just, you just close the door. It has to recognize that. Now it's up. BY MR. OSTROWSKI: Q. Okay. What is this? A. That's a copyright notice. We were still in the program. THE COURT: Excuse me. What did you put in, what CD ROM? THE WITNESS: That's the same, that's the same disk. MR. OSTROWSKI: I'm sorry. I put in, I thought we were done, Your Honor, I was totally -- THE COURT: Plaintiff 39 is back in there? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Can you fire up the program again and get back to the -- MR. KITCHEN: Your Honor, I'll object. THE COURT: Wait a minute. MR. KITCHEN: I'll object now to erasing the screen because, well, now the thing is gone. There was testimony, Your Honor. MR. OSTROWSKI: Well, it's my witness. THE COURT: There was a copyright sign on there, which I didn't quite have a chance to read. MR. KITCHEN: Yes. MR. OSTROWSKI: What I'm saying, Your Honor, is we got to that exit screen in a very convoluted way, which -- THE COURT: Nevertheless, there was a copyright screen that I don't think we were able to grasp what was on it. MR. OSTROWSKI: I'm asking Mr. James, Your Honor, to go back to the program and produce that copyright screen by exiting the program. BY MR. OSTROWSKI: Q. Can you do that very quickly? A. Yes. Q. Okay. This is the main menu and you want to quit now? A. Yes. Q. Okay. How do you quit? A. Hit Q and press enter. Q. Okay. A. And then type Y to confirm. Q. Okay. Why didn't we get to this exit screen before? A. Apparently we had not exited the program. Q. Okay. A. We had exited one of the applications that we were in. Q. Okay. Is there a copyright notice on the screen? A. Yes, there is. Q. Showing you Plaintiff's Exhibit 39-A, is that an accurate copy of the screen? A. That's an exact copy of the screen. Q. Exact copy? A. Yes. MR. OSTROWSKI: I offer 39-A into evidence. MR. KITCHEN: I have no objection, with the same reservation, that the last two lines down there, saying type exit to return to A menu and then below that a prompt, is not really part of the program, but it -- THE COURT: Are you saying that the last two lines have no materiality? MR. KITCHEN: Right. MR. OSTROWSKI: Those are produced by my computer, Your Honor. THE WITNESS: That's a DOS command. MR. KITCHEN: Okay. With that understanding I have no objection. BY MR. OSTROWSKI: Q. Okay. Taking out Plaintiff's Exhibit 39 I'm going to ask you to fire up Plaintiff's Exhibit, what is that, 7? THE COURT: 7. BY MR. OSTROWSKI: Q. Okay. Now, just, can you identify that on the outside? A. It says Night Owl, 219 Potomac Avenue, with the city, state, zip code. And this one says compact disk storage where the other one had a W on it. Q. Is it the same color as Plaintiff's 39? A. It's the same color. Q. Same model number, version number? A. It's the same version number. Q. What is the difference, if any? A. One of them, it seems to be made by a different manufacturing company. One, one has a W and some stamp of a W and words that I can't read without -- Q. Okay. Do you -- A. -- without aid. Q. Well -- A. And the other one -- Q. Do you see, made by Nimbus, made in USA by Nimbus, on either Exhibit, at the bottom? A. Oh. THE COURT: Wait a minute. What are you comparing, what Exhibits? THE WITNESS: There are some differences. THE COURT: Wait a minute. What? MR. OSTROWSKI: 7 and 39, Your Honor. They seem to be very similar. I'm just trying to -- THE WITNESS: They are, they are, except for that W. Both of them appears to have this made by Nimbus stamped on it. BY MR. OSTROWSKI: Q. Okay. Do you know what Wiseta Technology is, from your personal knowledge? A. No, I don't. Q. Okay. Can you fire up Plaintiff's 7. Let me ask you this. Plaintiff's 37 -- I'm sorry, Plaintiff's 39, you've had a chance to operate the CD ROM. Is the program on here substantially similar to Defendant's Exhibit 1? A. No. Q. Well, what is the program on Plaintiff's Exhibit 39, the file retrieval? A. Night.EXE. Q. Did you write it? A. Yes. Q. And was it in C? A. Yes. Q. Okay. And -- THE COURT: Was it what? BY MR. OSTROWSKI: Q. What language was it in? A. And this Exhibit 39? Q. Yes. A. It's written in C. Q. Okay. What are the similarities between the program on Plaintiff's Exhibit 39 and Defendant's Exhibit 1? A. Oh, the similarities is that they, the similarities, they show a screen of categories. Q. Okay. A. Oh, you said Defendant Exhibit -- Q. Wait for a question. Showing you Defendant's Exhibit 1, what is that? A. Oh, Defendant's. I thought you was talking about complainant, the other people's Exhibit 1. Q. Okay. A. This is identical, this is that program. Q. Okay. The -- THE COURT: Identical to what? THE WITNESS: To what, to that application we're running now. THE COURT: 7? MR. OSTROWSKI: The file retrieval on Plaintiff's -- THE COURT: 7 on the screen now? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Well, you haven't looked at 7 yet, have you? A. No. I'm saying what was right there on the screen. Q. I'm not asking you about 7. I'm asking you about Plaintiff's 39. This is the one we just took out of the computer. A. Oh. That one and this is very similar. It's about -- THE COURT: It's identical to Plaintiff's 7 and very similar to 39? Is that what you're saying? THE WITNESS: It's very similar -- THE COURT: Identical to 7 and very similar to 39? THE WITNESS: Almost. THE COURT: It's almost. Almost what? MR. KITCHEN: Almost very similar? MR. OSTROWSKI: Well -- THE WITNESS: Maybe I should take one at a time. BY MR. OSTROWSKI: Q. What I'm asking you is, do you recall just looking at Plaintiff's Exhibit 39? A. Yes. Q. Which has a copyright screen with your name on it? A. Yes. Q. Plaintiff's Exhibit 39-A? A. I remember. Q. Is the file retrieval program that is utilized on Plaintiff's Exhibit 39 substantially similar to the file retrieval printout on Defendant's Exhibit 1? A. It's essentially similar. Q. Okay. Is the, Defendant's Exhibit 1 program, have more or fewer bugs on it than the program that's on Plaintiff's Exhibit 39? A. The Exhibit 39, this, the CD ROM disk has problems because it -- THE COURT: The question is, does Defendant 1 have more problems than 39? THE WITNESS: The answer to that question is yes. MR. KITCHEN: I'll object, Your Honor. I don't know if there's a proper foundation been laid that there are any bugs or defects, or what he's talking about. THE COURT: Well, I -- MR. KITCHEN: This is the first time in this examination with this witness -- THE COURT: I'm getting lost myself to know about the relevancy. MR. KITCHEN: This is the first time that bugs has come up. MR. OSTROWSKI: Well, I don't think it is. You stated that -- THE COURT: Bugs I think is a generally understood word. BY MR. OSTROWSKI: Q. You stated that the program that was utilized on Plaintiff's Exhibit 39 was not ready to go, in your opinion? A. That's right. THE COURT: You said that earlier. It's an evaluation copy, not for resale. MR. OSTROWSKI: Okay. THE WITNESS: That one doesn't have the problems. THE COURT: It says beta. BY MR. OSTROWSKI: Q. Defendant's 1 is ready to go? A. Yes. Q. Okay. Other than the fact that it -- THE COURT: Well, now, does Defendant 1 have more bugs in than Plaintiff 39? MR. OSTROWSKI: That's what I'm asking you. THE WITNESS: No. Number 1 doesn't. This was a preparation and this was just jump the gun and put out. MR. OSTROWSKI: Okay. THE WITNESS: That's -- THE COURT: One, something had more bugs than Plaintiff 39. What was that? MR. OSTROWSKI: I -- well -- THE WITNESS: 39 -- BY MR. OSTROWSKI: Q. Does 39 have more bugs than Defendant's 1? A. 39 has bugs. 31 doesn't. Q. Okay. Out of the modules that are utilized -- A. Number 1 doesn't. THE COURT: 31? THE WITNESS: 1 doesn't. THE COURT: 1 doesn't. BY MR. OSTROWSKI: Q. Out of the modules that are used in Plaintiff's Exhibit 39, how many of them are on Defendant's Exhibit 1? A. All of them. Q. Okay. Are we ready to -- we have the menu screen on Plaintiff's -- I forgot where we were after all that, Plaintiff's Exhibit, what number are we at? A. Number 7. Q. Okay. Can you see any differences between 7 and 39 just by looking at the menu screen? A. No. THE COURT: Well, you say -- I see one, you know, you see Pascal and Turbo is one that is on there, and Basic and Q Basic. THE WITNESS: Your Honor, remember that all those -- THE COURT: I remember some of them from the earlier directory. BY MR. OSTROWSKI: Q. Disregarding the actual descriptions in the menu, do you see any -- THE COURT: Three columns rather than two. BY MR. OSTROWSKI: Q. Do you see any differences? Was version number 3.0 which is on the upper right hand corner, was that on the menu screen of Plaintiff's Exhibit 39? A. No, it wasn't. Q. Okay. THE COURT: What does it mean? BY MR. OSTROWSKI: Q. What does that mean? A. That was a modification. THE COURT: Of what? THE WITNESS: Of my source codes. MR. OSTROWSKI: Well -- THE COURT: What is your source code? BY MR. OSTROWSKI: Q. Okay. What have you done there to get that green screen? THE COURT: Well, I don't know. His version changed from his source code. I'm trying to find out, what is his source code. Have we seen that, or do we have it? BY MR. OSTROWSKI: Q. Did you put version 3.0 on here? A. No, I didn't. Q. Do you know who did, from your own knowledge? A. No, I don't. Q. Okay. You went to a green screen there. What -- A. I have one to verify if this was what Richard had -- Q. Okay. Can you hit F-1? And what is F-1, help? A. Yes, it is. Q. And can you, is there a serial number on there? A. Yes, it is. Q. And where is that, what did you do to get to the serial number? A. I used the arrow key up to go to the top of the screen. Q. Okay. What is the serial number that's on the help screen? A. It's a serial number 0001. Q. Did you put that there? A. No, I didn't. Q. Is that the right serial number for the program once it's finished? A. That's the correct serial number for Richard Graham. That's the one I assigned him and I told him the serial number was 1. He knew that it was 1. Q. You did not put that there? A. No. I showed him where it would go, but I didn't put it there. Q. Okay. Can you go back to the main menu screen? Did you have occasion during the recess to operate this particular program? A. Yes. Q. Okay. Is it similar to the file retrieval on Plaintiff's 39? A. Yes, it is. Q. Are there any differences? A. The only -- the differences that I see are very minor, like they put a version number on there, and they installed a serial number to remove the evaluation copy prompt. Q. Okay. Does that version number difference have any affect on the user? A. No, it doesn't. Q. Okay. Can you go to the closing screen, exit out? Okay. Now, what do you see on the screen there? A. It says, thank you for using Night. It seems like they also changed my copyright notice. Q. Well -- THE COURT: The question was, what does it say, and then you started in to some explanation. THE WITNESS: Oh. Thank you for using Night, copyrighted 1991 by Night Owl CD ROM Publisher. All rights reserved. And exit. BY MR. OSTROWSKI: Q. Did you write that in there? A. No, I didn't. Q. Do you know who did? A. Not for firsthand knowledge. Q. Okay. You can take that out. THE COURT: Scratch that one. MR. OSTROWSKI: They say you can play frisbee with it. THE COURT: As long as the bottom doesn't hit anything abrasive. MR. OSTROWSKI: That part I don't remember. THE WITNESS: Running one of the programs -- THE COURT: Wait a minute. There's no question. THE WITNESS: Okay. MR. OSTROWSKI: I can't take those things off. I don't know what the problem is. THE WITNESS: Like this. BY MR. OSTROWSKI: Q. Okay. This is Plaintiff's Exhibit 6, can you identify that? A. It says, Night Owl, 219 Potomac Avenue, Buffalo, New York, and it's PDSI0041, and at the bottom it says, published by Nimbus. Q. Now, I just want -- THE COURT: Now, is this the second version then of that 004-1 because Plaintiff 39 had that on also. MR. OSTROWSKI: Your Honor -- BY MR. OSTROWSKI: Q. Showing you Plaintiff's Exhibit 39, what is the version number, if you can read that under the sticker? Is that P -- can you see it under the sticker? Is that 0 -- PDSI004-1? A. On there? Q. Right under the sticker. You can't read it. Here, take it out. A. Oh, you want me to read, read this? Q. Just the version number, on Plaintiff's 39. A. PDSI0041. Q. Okay. What's the version number on Plaintiff's Exhibit 7? A. PDSI0041. Q. Okay. What's the version number on Plaintiff's Exhibit 6? A. PDSI0041. Q. All the same version number? A. Yes. Q. Okay. By the way, was 7 the last one that we looked at? A. Yes, it was. Q. With the Richard -- with the Graham -- with Night Owl's copyright notice as the exit screen? A. Yes, it was. Q. Now, you've looked at Plaintiff's Exhibit 18? A. Yes, I did. Q. Is the, is that substantially similar to the file retrieval that's on Plaintiff's Exhibit 7 CD ROM? A. Yes, it is. Q. Okay. Your copyright notice has been taken out of Plaintiff's Exhibit 18? A. Yes. Some code has been removed, my copyright notice, my verification for the algorithm that would have disabled it. Some of those things were removed. Q. Okay. In your opinion is that the -- A. It's essentially the same program. It just has the protection removed. Q. That's on Plaintiff's Exhibit 7? A. Yes. Q. Okay. Can you fire up Plaintiff's Exhibit 6, see what happens. Okay. A. This one apparently does not have a serial number inserted. This is more the way it was that I had given it to Richard. I had not put the serial number on it because I wasn't ready for him to publish it. Q. Well, is this like Plaintiff's 37 pretty much? A. Yes, it is. Q. Okay. A. What was that, 39? MR. KITCHEN: Excuse me? MR. OSTROWSKI: I'm sorry. 39. MR. KITCHEN: 39. MR. OSTROWSKI: Yes. THE COURT: This has a version number on it also and the cautionary word, beta. THE WITNESS: Yes, yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. What would the next step be? A. To press enter to install, and most of the options are default except the drive. Q. Okay. Can you just -- A. And you can press enter. Q. -- get up to the main menu screen? A. Then at the last screen it wait for you to prompt. Q. Accept changes? A. Accept changes. Q. Getting up to the main menu screen, is that pretty similar to Plaintiff's 39? A. Yes, it is. Q. Okay. What do you see for -- okay. Is there a serial number in the help screen? A. No, it's not. This is closest to the way it was when I gave it to Richard. Q. Is that like Plaintiff's 39? A. Yes, it is. Q. But not like Plaintiff's 7. MR. KITCHEN: Your Honor, we would -- THE COURT: What? MR. KITCHEN: We would stipulate that this, the contents of this disk should be essentially the same as Plaintiff's 39, and I'm not sure to what extent, we've had testimony on this from Mr. Graham, but we understand this particular disk might actually be a counterfeit of his, of his disk. Now, that's, that is immaterial to this lawsuit. I mean, there's no, I don't think there's any allegations of counterfeiting involved in this lawsuit. This would have been done by somebody who Mr. Graham doesn't even have any idea who it is. So, but in any event, that's why the thing is gold rather than red, but there's no question, at least as far as we understand, that the contents are essentially the same as in Plaintiff's 39. BY MR. OSTROWSKI: Q. Okay. Can you go to the -- THE COURT: Do you accept that stipulation? MR. OSTROWSKI: Yes, I would, Your Honor. THE COURT: Thank you. BY MR. OSTROWSKI: Q. Can we go to the exit screen then, just to see what copyright notice is on there. Okay. Is this the same copyright notice as on Plaintiff's 39-A? A. Yes. Q. Okay. You could take that out, or I'll take it out. Okay. Showing you Plaintiff's Exhibit 32, can you identify that by the version number? A. It says PDSI0042, and at the bottom it says, made by Nimbus. Q. Okay. Can you fire that up, and we're looking for similarities and differences between this and the previous two or three. Okay. Why can't it open the main menu, main categories file? A. Because they removed the, what they call redundancy. Q. Well, explain that. A. There's a algorithm that would check for the configuration file, and they left the algorithm in and it checked, and because it's there, normally before it goes into the rest of the program it will check again, and if it doesn't work, this here, this program sees that it's set up, and you press enter, it knows that it's set up, and so it's -- but when you press enter it doesn't see the files and it doesn't return a value of true if everything is successful. Q. Okay. A. So it just falls out of the program. Q. Okay. A. What I wanted to do is delete everything off the hard drive, referring to the Night Owl's, and start over again. Q. Okay. Can you do that without destroying all my personal files, I hope? A. I can do it, but it's, it's a sensitive matter for a lot of people. Q. Okay. A. It would take most people at least 10 minutes to do that. Q. Okay. And we ready to fire up the program? A. Yes, I am. Q. Okay. A. See, now the program recognized that it's not, that it's not installed. Q. Okay. A. And it goes into this installation mode. Q. Is this back, are we back to -- well, did you write the source codes that are now working? A. The modules, this is my installed configuration module. It's not in any books. It's only in my library. Q. The glitch that we had at the beginning, it was a result of -- A. The glitch was -- THE COURT: Wait a minute, wait for the question. BY MR. OSTROWSKI: Q. Was that the result of the erasing of your source codes? A. It was -- Q. In one area? A. Is that a yes or no answer? Q. Yes. A. Yes. Q. Okay. Okay. What do we do next to fire up the program? A. Press enter. Q. Okay. This is setting up the hard drive? A. Yes, it is. Q. Okay. You can speed through this. I think we've seen this a number of times. THE COURT: What's this mean? It says something about exiting to your default Night Owl memory. THE WITNESS: I will try it again. THE COURT: Now, you have a copyright box there showing, by Night Owl's. There was an earlier one saying your copyright for Night Owl written by you, on this same CD ROM, right? THE WITNESS: Yes, Your Honor. THE COURT: Why did you have two, two different ones? THE WITNESS: This is after they took my code, Exhibit 1, and -- THE COURT: It's all on the same, it's all on the same disk, isn't it? THE WITNESS: No. No. This is different. BY MR. OSTROWSKI: Q. Do you have a copyright notice on this CD ROM? A. No. This is a different disk. THE COURT: This is Plaintiff 32. MR. OSTROWSKI: Okay. THE WITNESS: What -- THE COURT: PDSI0042. THE WITNESS: Yes, Your Honor. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Well, can you -- THE COURT: I noted that earlier he had your copyright for Night Owl written by you, and now you got, on the same disk, you got copyright by, for Night Owl. THE WITNESS: This is 32. MR. OSTROWSKI: Yes. BY MR. OSTROWSKI: Q. Can you, perhaps you can go to the opening screen and we'll be looking for copyright notices and try to clear that up as we run the program. Is this setting up the program? A. Yes. Q. Trying to get to the main menu. By the way, in operating the setting up, setting it up to get to the main menu screen, are you familiar with those commands? A. Yes, I am. Q. Why? A. I wrote them. Q. Okay. So far this is your file retrieval? A. Yes, it is. Q. Okay. What do we see now, are we at the main menu? THE COURT: What do you call these? Commands, or just labels, aren't they? THE WITNESS: Those are categories. THE COURT: But why do you call them commands or, I mean, what's magic about the word commands? THE WITNESS: When he, he was referring to various options. THE COURT: You're better to say, I wrote the programs, I wrote the commands, or something. What's the magic or importance of that? THE WITNESS: What you call jargon. Jargon. BY MR. OSTROWSKI: Q. What does command mean in computer jargon? A. It's just instructions, a series of instructions. THE COURT: Just -- THE WITNESS: You instruct the computer to do something. THE COURT: So what's important about that, other than you have to have those to make the computer perform certain functions? MR. OSTROWSKI: I was just trying to identify the authorship of this program, Your Honor. THE COURT: Of this program? MR. OSTROWSKI: Yes, because I do not -- THE COURT: This directory, this listing? MR. OSTROWSKI: The file retrieval that's working. I don't believe that there is a copyright notice by Mr. James on this particular one. I may be wrong. THE COURT: Well, I saw two of them so far on Plaintiff 32. BY MR. OSTROWSKI: Q. Okay. Where are we now, are we at the main menu? A. Yes, we are. Q. Now, are there any differences between this main menu and the previous ones that were on 7 and -- A. Yes. Q. -- 39 and 5, I guess. What are the differences? A. There's nothing significantly different, except instead of typing a number you can highlight the category and press enter. Q. Okay. A. And, and that -- Q. Did you just do that? A. Yes, I did, and pulled up directory number 3. It's all the same. Q. Now, when we're at -- are we at a list of files -- A. Yes. Q. -- of some type? What category are we in? A. Area -- THE COURT: Desktop. THE WITNESS: Desktop Publishing. THE COURT: Desktop Top Applications. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Is that what -- was that in the main menu screen? A. Yes. THE COURT: There's a redundancy there. I don't think it had the extra top in the menu screen, but -- BY MR. OSTROWSKI: Q. So we're at a list of files? A. Yes, we are. Q. Is this -- A. We're in a printout of that DIR, DIR3 text file. THE COURT: Category number 3. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. And based on the way that the screen appears, is this your file retrieval program? A. Yes, it is. Q. Okay. THE COURT: Says line 1 tagged, is that, that -- THE WITNESS: Yes, Your Honor. It says, line 1. That's the first line, all the way up to it, now we're on the seventh line. THE COURT: Oh, I see. THE WITNESS: But tagged is zero. THE COURT: Yeah. The tagging you accomplished with that other Exhibit. Yeah. You tagged it with a different color. THE WITNESS: Yes, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Have you actually used this CD ROM before? A. Not this physical disk. Q. This is the first time -- well, this version 4-2? A. No, but the program is a program that I wrote, so I'm -- Q. Can you just go through and extract a file and, to see if it's the same, and explain what steps you're taking. A. Okay. I'm looking to find something that may not be real big and may be something to execute. This is the business application area so I'll choose, I would like to make a comment of something I know, you asked something different. It's different in that it's -- Q. Okay. Did you notice a difference between this and your prior programs? You have to slow down and -- THE COURT: is very small. THE WITNESS: It seems like when they was making modifications in my program that lists, that lists to the screen, and someone did make a reference that this was new. MR. KITCHEN: I'll object to the hearsay or speculation, whatever that was. THE COURT: Well, much of what's going on seems to me not to be of any importance, frankly, Mr. Ostrowski. MR. OSTROWSKI: Your Honor, Mr. James has never utilized this Exhibit. We have to show that he's the author of it. THE COURT: So you want to practice outside of the courtroom? MR. OSTROWSKI: No. I think he just wanted to point out that there was a difference. MR. KITCHEN: Your Honor -- THE COURT: I think your last instruction was for him to come to the copyright panel. BY MR. OSTROWSKI: Q. Okay. Can you execute a -- A. Okay. Q. Well, can you go to the exit screen to see if there's a copyright notice? Okay. And is there -- THE COURT: Now, that's the one that shows by Night Owl Computer Service. There was an earlier one that had your name on it also. BY MR. OSTROWSKI: Q. Do you know of any other place in this -- THE COURT: In red or amber, whatever you call that color, burnt orange. BY MR. OSTROWSKI: Q. Do you know of anyplace on this CD ROM where you have a copyright notice? A. Not on this disk. Q. How about in the help screen? THE COURT: It came up just as you were getting into it. BY MR. OSTROWSKI: Q. Can you re-enter the program and -- could you -- I'll tell you what, can you go to the A menu program? THE COURT: Are you re-enter -- is this your entry program? MR. KITCHEN: Your Honor, is it possible that what you saw might have been a leftover from the previous disk? THE COURT: God knows. I don't. MR. OSTROWSKI: Is this -- Your Honor, I think what you may have seen is the -- you just left it, Larry. Can you go to the A menu screen? THE COURT: You're suggesting, Mr. Kitchen, that there might be some detritus left over from another one? MR. KITCHEN: Well, I'm not sure about that, but -- THE COURT: Well, how am I to know what I'm looking at if it's not reliable? BY MR. OSTROWSKI: Q. Do you -- is this -- A. This is a menu system. Q. Okay. Is this copyright notice on the screen right now, this, does this have anything to do with the CD ROM? A. That's a menu program. No, it doesn't. Q. Okay. This was on the computer before it came into Court? A. Yes, it was. Q. Okay. THE COURT: Now, this is, this is on what, the machine? MR. OSTROWSKI: This was on the computer on another program that -- THE COURT: On the machine? MR. OSTROWSKI: Yes, Your Honor. THE COURT: All right. And it says Apollo 3. THE WITNESS: Yes. Now we're out of that program. MR. OSTROWSKI: Okay. THE WITNESS: Now we're out of it. BY MR. OSTROWSKI: Q. Well, have you -- okay. Can you tell from having operated the program whether it is operated with your file retrieval program on it? A. Yes, I can. Q. Okay. And is it? A. Yes, it is operated with my file retrieval program. Q. Okay. And, but the copyright screen at the end, did you write that? A. No. It was moved out -- Q. Okay. A. -- removed out of my code. Q. Was there some difference between the way the, the scroll bar worked on Plaintiff's 32 between -- A. Yes. The program is kind of clumsy because, because some of the code was dependent on some of my protection, and they apparently had to do some patches to make it function without - - MR. KITCHEN: I will object to the speculation on the part of the witness. THE WITNESS: It's not speculation. I wrote the program. THE COURT: Well, I object to what seems to me to be -- THE WITNESS: It's operating the way I know it will. THE COURT: Excuse me. I object to seemingly waste of time. We're not at all organized at what we're doing. MR. KITCHEN: Well, specifically though, Your Honor, my objection is the speculation on what -- THE COURT: I understand that. MR. KITCHEN: -- what somebody would have had to do with this program. THE COURT: I understand. MR. OSTROWSKI: I'm looking for PDSI005. I thought I had it here. Your Honor, what I -- I have to go through each of these in order to prove ownership of the program. THE COURT: It's 12:22. What time you want to come back, including time for rehearsals? MR. KITCHEN: Your Honor, when inquiry was made last week as to when we were going to continue, there was conversation between my office and your staff in which an indication was made that I had a, an appearance in Family Court on Wednesday afternoon, and apparently that was acceptable to whomever my office communicated with. THE COURT: Sure. Where are you going to appear? MR. KITCHEN: In front of John Aman in the Hearing Examiner's part of Erie County Family Court, sir. THE COURT: Where? MR. KITCHEN: Erie County Family Court. THE COURT: Oh, I see. MR. KITCHEN: Yes, sir. THE COURT: All right. And so that what, knocks you out of this afternoon? MR. KITCHEN: Well, to be perfectly honest, Your Honor, we've substantially had most of our hearing, and I'm not sure what was going to take place this afternoon except a little bit of a mopping up operation over there, and so I'm not sure if it's going to use the whole afternoon or not, and frankly I'm also not sure what their scheduling is in terms of how quickly we will get in and get this thing disposed of. So, I wish I could be more definitive but -- THE COURT: Well, it sounds to me you're saying that this afternoon, as far as your availability, is pretty much a blank. MR. KITCHEN: Yes, sir. THE COURT: Can't have you. If that be the situation, and I do remember you had raised the point earlier, I don't see we have any alternative but to go off to tomorrow morning. Or you and Mr. James can have the courtroom and everything, Mr. Ostrowski, to practice and prepare. MR. OSTROWSKI: I'm ready to go ahead, but if he has another matter I don't care if we put it off until tomorrow. THE COURT: All right. MR. KITCHEN: I have no objection to continuing now, I mean, to the extent that it's convenient to the Court. THE COURT: All right. I can't go -- MR. KITCHEN: Objection to continuing right this minute and see what further -- THE COURT: Well, one, I do, my stomach does. It's 12:22 plus. MR. OSTROWSKI: Yes. THE COURT: But you've been objecting and I've been agreeing with you that we seem to be proceeding in a disorganized fashion. MR. OSTROWSKI: I don't understand that, Your Honor. I'm going through each program and asking him if he wrote them. And he has to operate the commands a bit. He's never seen, he's never operated -- THE COURT: All right. MR. OSTROWSKI: -- some of these disks before. THE COURT: Let me just confess to having given you a lay person's opinion then. MR. KITCHEN: Well, Your Honor, I would, I would like to offer perhaps some assistance in, in proceeding along this line. I mean, Mr. Ostrowski seems to be going through things in a very careful manner in terms of putting the evidence in through this witness, and I think the bottom line testimony of the witness is saying that, well, this is similar or this isn't. And I, you know, maybe rather than kind of stepping as carefully as Mr. Ostrowski is, we kind of get right to those, those issues, and it may be a little more helpful. I'm not inclined to, you know, object to that sort of thing. I find it perhaps more objectionable that it takes so much time to kind of get to the bottom line. THE COURT: Well, I was wondering if from what you say, whether there's a shortcut by way of stipulation or agreement. MR. OSTROWSKI: I don't really think it's taking that much time, compared to the time it took Swanson. We are absolutely speeding along. THE COURT: Well, we seem to be spinning our wheels a lot. MR. OSTROWSKI: Well, it's beyond my capacity to -- THE COURT: And I don't mean disks. MR. OSTROWSKI: It's beyond my capacity to go any faster or more efficiently. THE COURT: All right. MR. OSTROWSKI: I am prepared. I know what I'm doing, and this is my case, and I'll try to move it along as fast as I can. MR. KITCHEN: Well -- THE COURT: And you, you don't see any area where you and Mr. Kitchen can come to agreements as to these points that you're having Mr. James testify to. MR. OSTROWSKI: Well, we're already out, we're already into programs in which there are changes, and we're moving into programs in which there will be more changes, and this is a crucial part of the case. MR. KITCHEN: Well, Your Honor, if I just may offer. I mean, I think initially when we kind of looked at a few things on the computer and stuff, it was a bit novel and it was somewhat interesting. This is, this has, of course, progressed to, to the area of, now of tedium. And it isn't just because - - MR. OSTROWSKI: I -- it's ridiculous. THE COURT: Let me interrupt. What is this we have on the screen now, Mr. James, a little multi-colored five line block, save screen, version 1.0301. Next line, on 11/3, 1995 the time is 0029. Your personal message here. A professional menuing service -- system, rather. Copyright 1992, 1993 by L. James. What's all that? THE WITNESS: When a person runs a program, if the same thing stays on the screen too long, it -- you can get a damage to the screen called a burn-in. So if the computer stays on more than -- THE COURT: So protectively it flips off to that five line thing I described. THE WITNESS: Yes. And randomly displays action. So it puts something on the screen. THE COURT: It doesn't burn out with that five line thing just sitting there? THE WITNESS: Yes, Your Honor. If the screen was totally black, someone would think the computer was turned off, and they might unplug it, and that could cause you to lose data on your hard drive. So it indicates that the computer is actually on. THE COURT: So what does all that five lines of gobbley-gook mean? THE WITNESS: It was just, it could have been anything random. THE COURT: That's what I thought. All right. MR. KITCHEN: Well, back to my suggestion, Your Honor, I think the tedium is more the product of the fact that we've been sitting here and doing a number of things, and it just so happens that Mr. James now is the one who's operating the computer after we've seen two or three other people operate the computer. For that reason, I, I'm suggesting that if it is at all possible where Mr. Ostrowski and I could confer and perhaps abbreviate this a little bit, I would like to do so. THE COURT: Well, frankly I'm a little bit at your mercy because this is a new field for me. I'm just sort of learning part of it as we go along and I can't be as dictatorial as I normally would like to be in running a case. MR. OSTROWSKI: Well, I've already gone through 10 disks. I would suggest that if you take -- THE COURT: How many more do you have? MR. OSTROWSKI: I've got about seven or eight. And if you, I think if you take the time that we've spent on these disks after he left the stand and divide it by the number of disks, I would suggest we've gone a lot faster than Mr. Swanson did. MR. KITCHEN: Well, I think so. We have skipped over some things. I realize that Mr. Ostrowski is now getting into some disks which, which are markedly different in some respects, and I suppose he has to run through the programs to show similarities. THE COURT: All right. MR. KITCHEN: But I, you know, the only thing I will say is, these, these disks are in evidence. They don't really need to be identified by the witness or anything else. I guess, you know, I would be happy if Mr. Ostrowski simply announced that he's putting thus and such a disk in there and what it has on the label for clarification, and boy, let's go. I mean, some of this is, I realize we're sometimes slow learners in this field, but we have picked up a little knowledge, and maybe we can jump into the meatier part of the demonstration. THE COURT: Well, we can't do anything this afternoon. That's bottom line today, right? MR. KITCHEN: Yes, sir. THE COURT: And as I say, the courtroom is available to you, Mr. Ostrowski, if you want to work here or do something on it. If you don't, obviously you don't have to. You have your own office and other problems, I recognize, but -- MR. OSTROWSKI: Well, I will stay and go through the rest of the versions with Mr. James. THE COURT: You may. Yeah. All right. 9:00 o'clock tomorrow morning. 872 I N D E X Witness Dir Cross Redir Recr Larry D. James 873 Exhibit Ident. Evidence