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Text File | 1994-04-12 | 180KB | 3,400 lines

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- LARRY E. JAMES, November 5, l993 Defendant. ------------------------------------ TRIAL BEFORE THE HONORABLE JOHN T. ELFVIN UNITED STATES DISTRICT COURT JUDGE APPEARANCES: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, New York 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording. Transcript produced by transcription service. P R O C E E D I N G S MR. OSTROWSKI: You know, I'm planning to make a motion to add the corporation as a party. I started to work on that last night. I have to make a motion and then, if granted, serve Mr. Graham as President of the corporation. I just wanted to let Mr. Kitchen know that I was planning to do that in case he has objections or - - THE COURT: Well, he won't make an objection until you make a try. MR. OSTROWSKI: Well, I just wanted to put him on notice that I'm doing that as soon as I get the paperwork together. THE COURT: All right. MR. KITCHEN: Can you get the DOS from here now? THE COURT: It's in the machine. LARRY JAMES, Defendant witness, recalled CROSS - EXAMINATION BY MR. KITCHEN: Q In the machine we have the first of the Pier One Sharewares which is Plaintiff's Exhibit 57. Could you look at the text files in the Pier One. Now, what's showing on the screen is that a list of all the files on the - - A That's a list of all the directories. Q Okay. THE COURT: List of the directories or list of the files? BY MR. KITCHEN: Q List of the directories, right? A It's - - THE COURT: Well, he asked about files and you said directories. THE WITNESS: There are about fifty-two directories and about four files listed there. BY MR. KITCHEN: Q Okay. Is this what we call the route directory, by the way? A That is. Q Okay. THE COURT: What? MR. KITCHEN: The root directory. THE COURT: The route directory. R-o-u-t-e, rather than R-o-o-t, or is it the latter? MR. KITCHEN: No. R-o-o-t, right THE COURT: The bottom line. MR. KITCHEN: That's the basic directory on any kind of drive or disk, right? THE WITNESS: That's correct. BY MR. KITCHEN: Q Okay. And then you can add directories within that and then you can put directories in directories in directories within directories, within directories; is that all correct? A That is correct. Q All right. But on the root directory you, as well as directories, you might have individual files which we do here, right? A That is correct. Q Okay. In fact, the Pier One is one of the files. That's the program that runs the - - that's the retrieval, right? A That is correct. Q Okay. You have a directory there called Text that you've highlighted there. What's in that directory? A That is a number of files. Q Okay. Now, who would have written these particular files? A The BBS operator. In this case it would have been - - - in a BBS probably Greg's BBS to Pier One is changed. Q Okay. But these particular files when - - he's essentially prepared these to go on his Shareware disk, right? A I don't know firsthand how much preparation. It really doesn't take any preparation. MR. OSTROWSKI: I'd object to any further answer. The witness has stated he doesn't know. MR. KITCHEN: Okay. BY MR. KITCHEN: Q Well, I guess what I'm saying is that you - - THE COURT: It hasn't bothered you before this. Go ahead. BY MR. KITCHEN: Q You as the programmer of the Pier One EXE, okay, you didn't come up with these? A No, I didn't. Q Okay. And on the Night Owl disks, you didn't come up with the text files there, you drafted the program, you made the program that ran the retrievals, but you didn't do the text files, right? A I suggested the arrangements of the text files to be compatible with my retrieval which is my BBS. Q Okay. Well, in other words, the text files, if they're going to work, they have to be set up a certain way, right? A Right, like my BBS, that's correct. Q But the actual material in them when you wrote your program, you didn't care whether it listed a file called Eggnog or a file called Christmas Tree, I mean, that didn't make any difference to you, right? Just as long as the word Eggnog and the word Christmas Tree were in the right place and the format was correct? A That's correct. Q All right. Can we take a look at one of these. Which one are you going to show us here? A I'll show you the first one. P001. I'm typing it through more so that it falls after a full screen. Q Okay. Is that going to work? A It will work. Q Okay. So this is what it looks like? A That's correct. Q What other text files are on this text directory? What other files - - you're showing me the rest of this particular file. A Okay. I'll pick control break and I'll go back to Z drive and do a directory with a W. If I do a Y directory like this here, everything is - - I mean a long directory, so I do a Y directory so that it falls, so that you can pick out one that you want to look at. Q Okay. What's the file marked DIR? A You want to look at that? Q Yes. A Okay. The reason I had to build a C drive to polish that is because it uses the physical hard drive to write a buffer. It writes a whole volume of hard drive and then it pauses after each page by displaying - - it needs a buffer. Q In other words, Moore - - the Moore pipe will not work a reading off the C drive? A Right. It buffers the current drive that it's on. When I type it you'll hear drive activity. You'll hear drive activity when I press enter. It's buffering the contents of that. The whole file. And then it will follow the screen. I forgot to point to Z, where this drive is located. Now it's starting to - - okay. That was a short file, so it buffered it quick. But that's the contents of the file. Q Okay. Are these the categories, essentially, that - - A Yes, that is. Q All right. And, again, you didn't draft those? A No. The BBS drafted those. Q Right. THE COURT: But there are more, right? THE WITNESS: Right. There is more, Your Honor. BY MR. KITCHEN: Q Well, when you say the BBS, do you really mean Greg Armenia? I mean, he's the one who made a decision as to what the titles of these categories would be and what the - - and what the arrangement was, right? A I'll answer the question right on the screen. This is a BBS utility, A PCB follow up. This is what he used. You press enter and see, you could write anything in there and you can edit those files. Q Yeah. A And, for instance, if you want to go through this -- Q No, you're giving me an example of what could have been done. A No. That's what was done. That's the application that produced the things that I'm showing you. Q We know that there are various categories that are provided on these Shareware disks. A That's correct. Q Well, one category is communications, another one is education? A Yes. Q Okay. But a Shareware publisher such as Greg Armenia, I mean, he could decide he didn't want education as one of the categories, right? A And use this tool, this PCB follow up, to modify and change educational to instructional or to delete educational altogether. This is a DIR additive. Added to PC board files and he used this to edit his PC board files then he copied all his PC board files onto one big disk. Q Well, okay. But you're describing to me some tools that he might have used to come up with - - A That he did use, yes. Q Oh, that he did use, to come up with that file called DIR, which lists the category. A Uh-huh. Q But, in actual fact, he could have used any text editor to produce that? A That's correct, yes. Q He could have used Word Perfect and produced that particular file, right? A That's correct. Q And you said that he did use this? A He did. Q Do you know what Mr. Graham used when he came up with his category list? A Yes, I do. Q Okay. What did he use? A He used PCB followed by my recommendation. Q Okay. A By my instructions, yes. Q And he, again, could have used any other text editor to do it, right? A He used PC - - Q Is that a yes or a no? A That's a yes and a no. Q Okay. A He used this and he used the Q program that I provided for him and programmed micros into. He used disks and programmed micros into. He used disks and I programmed micros in the Q - - into Q edit. He also used that which I provided. Q Yes, but you're not really suggesting that Mr. Graham, for example, didn't know how to simply write a text file with a list of categories and numbers next to them without - - that he couldn't have done it without this PC filer, PCB filer? A I know firsthand he had a lot of trouble doing it and that's why I provided this. See, I was there. Q Let's take a look at that directory again, the DIR. THE COURT: Why is that clock wrong? THE WITNESS: Probably because some games were running. That's the most logical explanation. When you run games, they do havoc to the computer. They're not that normal. THE COURT: 7:30 at night about? THE WITNESS: You want to go back to the C Drive? BY MR. KITCHEN: Q Let's take a look at that DIR file that we looked at. Okay. And, essentially, the contents of that file is a number and a space. THE COURT: And you call this A file or a list of files? MR. KITCHEN: This is a file which happens to consists of a list of categories; is that correct? THE WITNESS: Yes, that's correct. BY MR. KITCHEN: Q Okay. A That's the contents of that file DIR. THE COURT: File cabinet. MR. KITCHEN: Kind of. Kind of. BY MR. KITCHEN: Q And, essentially, it is this particular file, this DIR file which is pulled up onto the screen when we're on the main menu, right? A Wrong. Q Wrong? It doesn't get it from this file? A Oh, it gets the information for the main menu from this file, yes, it does. Q That's right. Your program is designed to look for this file called DIR and to get DIR and put it up on the screen, right? A Right. I had to write a different utility. Q In fact, don't you have a module that's called get DIR or something like that? A I do, yes. Q Okay. And that's what it does? It goes and gets this file called DIR, right? A No, get DIR doesn't get that file. DIR gets that file. Q Okay. DIR gets it. But you have a module that's called In DIR? A Right. I made a new DIR to process this file because I use a different one to process Richard's, the file that, you know, that Richard had. Richard had a block of texts. Q Yeah. A And I use a different file to process that block or text than when I use a process disk. Q Does Richard's program also have to have a DIR file? A Yes. But Richard's program - - Q Well, the answer is yes then? A Yes, it has to have a DIR file, that's correct. Q Does Richard's DIR file look like this? A No, it does not. Q Okay. So he doesn't have a list of numbers and names next to them? A He has the identical to the one that I showed you on the BBS with no changes. His doesn't have any changes. I made changes with Greg. I made a different utility. Q Okay. Well, could you - - am I doing something wrong? A It won't hurt it. Just pull it. Q Putting on the machine, Plaintiff's Exhibit 5, which is PBSI004, can we look and see if there's a DIR file in there? Why don't we look and see what's on this root directory of this particular Plaintiff's Exhibit 5 and you've got a list - - A You want me to go onto the text file? Q A list of directory. And is there a text directory here? A There it is right there. Q Okay. Let's take a look at the text directory. And in that text directory we see a variety of files with the words or the letters DIR in front of them, but we have one that's just plain called DIR, D-I-R; right? A Yes, we do. Q Let's take a look at that and see what it looks like. Okay. So, that's got a list of numbers with the names after them? A It does. Q But this one has the border built into it? A Yes, it does. Q Okay. A A border built into it, yes. Q All right. So, is that what you did differently for Greg Armenia's disk is that you eliminated the border or you put the border in a different place? A It was just done different, but there is going to be a border so there's a border in the PC board. There's a border in Greg's PC board. I made - - Q No, wait a minute. I'm wondering about this - - you keep referring to PC board or something like this. I want to kind of concentrate on what these are. Are you saying that if you ran PC board, that PC board puts a border around its list of categories? A That is correct. And this is PC board. THE COURT: What is it? You say this is PC board. What's the number? MR. KITCHEN: Well, you held us Plaintiff's 57. THE WITNESS: Plaintiff's 57. THE COURT: All right. MR. KITCHEN: The Pier - - THE WITNESS: It's a rendition of the PC board DBS that I described to you and the PC board follows, which I presented. It's from Clark Development Corporation, which I presented to Greg. THE COURT: My only point was, you can't just say quote "here", unquote, and have it mean anything on the record. THE WITNESS: Your Honor, yes, I understand it now, yes, Your Honor. BY MR. KITCHEN: Q But didn't you testify yesterday that 57 contained a Pier One period EXE, and that was your program, right? A Right. My program utilizes PC board files that's developed by Clark Development Corporation. Q Okay. And Night Dot EXE doesn't use any of those, huh? A It does. Q Okay. So they're both dissimilar in that regard? A They have a lot of similarity. Q Okay. Now, let me take that one out. Let's take a look at Plaintiff's 2, which is the Carr's Disk, PDSI002 and let's see what's on the root director of that? Uh-huh. And does that have a text file or a file or a directory where some text files might be found? A It does. Q Okay. Well, let's take a look and see what's in that text directory. We don't find the letters DIR on any of those files; do we? A It is not compatible with PC board. Q Is it compatible with PC board? A No. Q All right. We don't find any files there with the letters DIR; do we? A Right. That was before I came into the picture and I - - Q And the names that we put on files is somewhat arbitrary, right? A Right. But with PC board, it's not. Q We could call a file DIR, or we could call a file CAT; couldn't we? A That is correct. Q And if we called it CAT, we could call it DOG, too; couldn't we? A That is correct. Q Okay. Well, in that case, let's take a look at one of these like 00l.CAT. THE COURT: You're looking at 00l? MR. KITCHEN: Right. 00l CAT produced this particular - - this is what's on this, right? THE WITNESS: That is correct. BY MR. KITCHEN: Q Okay. Is this a list of files that are found on that disk or is this a partial list? A That's a partial list. That's the first twenty-four lines of the contents of that file. Q I take it there's more in here. By the way - - THE COURT: It says more. BY MR. KITCHEN: Q Yes. Do you know if there's any significance to the title up there, it says "Communication and Location of files"? A Yes, I do. Q Okay. What's the significance there? A Communications is the name of the particular category. Q Okay. A And Location of Files is the directory where those particular files that's in this contents of this text file are located. Q Okay. So, if somebody wanted to actually go and find one of these files and unzip it, these files would be located on a directory called 00lA, right? A That is correct. Q Let's go out of this and take a look, again, what's in that text directory. We don't have one that's called just plain old CAT, like we had on the others that was called plain old DIR, okay? A That is correct. Q Let's go up to the root directory of this thing and see if we can find something different. All right. Do we have - - okay. Let's take a look at the file called List.Dat. Okay. This is a list of the categories? A That's an index file that Jeff Retrieval used. That's Jeff's Engine, that he provided for Richard, uses. Q Okay. Did you have anything corresponding to that in your - - in the program you used? A No. Q Okay. You used the - - what file did you use to find the particular categories? A DIR. Q The DIR? A Yes. Q All right. A In Pier One I used DIR. In Richard's Retriever I use his text files. Q All right. Now, who would have come up with this particular file? A Jeff Anderson came up with this particular file. I didn't know him until during the testimony he made a mention of how his retriever worked. I never knew how it worked. But it's significantly different. It's totally different than mine. Q Now, you say that Jeff Anderson came up with this. But who would have picked out the categories to go in here? MR. OSTROWSKI: I object, unless he knows. THE COURT: If he doesn't know he won't say. MR. OSTROWSKI: Well, he's a very cooperative witness, Your Honor, he's going to speculate not knowing that that's improper. THE COURT: Well, he can be cooperative for the Plaintiff just as he was for the Defendant. BY MR. KITCHEN: Q You don't know who came up with the categories? A I know it came up with the structure and the file, but the categories, they're Richard's categories. When people overload the files to his board he uses his imagination, creativity and anything else to put them in any logical category order he deems. And when he did it he uses PCB filer. Q And he uses PCB filer because you gave him PCB filer, right? A That is correct. Q Okay. And if I didn't have PCB filer, he would have been out of luck, right? A Absolutely. Q Okay. So, he couldn't have come up with these names of categories without PCB filer? I mean, at least the file to make this thing run, right? A It's unlikely. I can't say that someone could not have, but it's very unlikely. Q Okay. Of course, that's not true here in this case because this particular disk was produced before you gave him PCB filer, right? A This disk was produced about two years after I gave him PCB filer. Q Oh! When did you give him PCB filer? A Around '89. It was about the second or third month as I met Richard. Q Were you working for him then? A I'm - - Q Is that a yes or a no? A I'm a consultant. Q You were his consultant then? A Well, Richard, as a member of my - - of the computer club, was able to utilize free advice. I did not charge Richard for teaching him and tutoring him - - Q So, he wasn't a paying client? A No, he never really was a paying client. Q What was his obligation to you for getting PCB filer from you? A Because he paid his fee as a member of our computer club, everyone shares information, data and everything with each other. Q Well, I mean, because you gave him a PCB filer, didn't obligate him to pay you like a thousand dollars or a dollar a disk or something; did it? A No, it didn't obligate him at all. Q Okay. And when you gave him PCB filer you didn't care whether he used it on anything; did you? A No, I didn't. Q I mean, it wasn't his responsibility then to pay you something if he did use the advice that you gave him? A That's correct. It was not mine. It was a Shareware program that I gave him. THE COURT: What was? THE WITNESS: PC board. THE COURT: PC board? THE WITNESS: Yes, Your Honor. THE COURT: Not PCB filer? THE WITNESS: A PCB filer is one of the utilities with PC board to sort out the directories. BY MR. KITCHEN: Q By the way, just to clarify. When somebody gets a program, it's an elaborate program that does a variety of things that sometimes comes with a few extra little programs or utilities; is that correct? A That is correct. Q Okay. And, in fact, if somebody buys a thing like Norton Commander or PC Tools, that's really a whole collection of programs, right? A That's correct. Q In fact, when a person gets DOS, which they really need to make the machine run, that actually comes with a variety of little programs too; doesn't it? A That's correct. Q So, PC board, which is a commercial program used for running a bulletin board service is one of these big programs that's got a bunch of little utilities, too, right? A That is correct. THE COURT: We have to interrupt. (9:45 - Recess for Rule l6(b)) (l0:22 - Resume) CONT'D CROSS-EXAMINATION BY MR. KITCHEN: Q Why don't we finish up out of here and get on to where we are right now. Your testimony was that you had given PC board, which was this program for running a BBS to Richard Graham, right? A That's correct. Q And when did you do that? That was about l988, I think you said? A Somewhere about three months, about two or three months after I met Richard, yes. Q And you were operating a bulletin board service then? A Yes, I was. Q Okay. And you used this - - this PC board is for running a bulletin board service, right? A I do. Q Okay. Well, I mean that is what PC board is for, right? A That is correct. Q Okay. And you were using PC board to run your bulletin board service and you gave it to Richard so he could start a bulletin board service, right? A I gave PC board to Richard. Q Uh-huh. A And I set it up at his house, PC board, and taught him how to run it. Q Okay. Had you used PC Board? A By logging into it from a user's point of view. At the time I gave Richard PC board I was running a system that I wrote myself. It was not PC board. As I mentioned to you, I wrote my BBS and I did discover, that was a Shareware program - - Q So the answer is no, you were not using PC board on your bulletin board service then? A That is correct. I was not using it. Q When did you first use PC board as your bulletin board service? A I used it at the same - - when I first used it. Q And when was that? A Probably about - - somewhere around '90. I have to look at the records. Q l990? A Yes. Q Okay. Were you a registered user at that point? A Yes. Q Okay. And is it your testimony that you didn't use PC board before then? A No, that is not my testimony. Q Okay. So then the first time you used PC board was not the first time you used it as your BBS, as your bulletin board service, was not l990, when you were a registered owner, right? A The first time that I used PC board, I used it as co-sys up to Richard's system where I had set it up. I used PC board at Richard's house. Q When was that? A Around, '89 - - '88 or '89, when I gave it to Richard. Q Okay. So then you never used PC board, that program, as your own bulletin board service before you gave it to Richard? A It was not possible to use it before I gave it to Richard. Q Well, whether it was - - A It was impossible. Q So, the answer is no? A That is correct. Q Okay. A That is the reason why. Q Well, what magic happened when you gave it to Richard that made it possible to use it? I mean, why was it impossible to use before you gave it to Richard? A PC board was written for an IBM computer and I was running a Tandy Model 4. I was running a computer that I built. It was not IBM compatible. Q So the PC board is a program that didn't even run on your computer? A That is correct. Q So, in fact, then when you gave it to Richard, you were giving him something that you, yourself, had never used as a BBS operator, right? A That is correct. Q So, actually, when you gave it to him the first one to really use it was Richard? A That is incorrect. Q Oh! Well, as between the two of you, though, you hadn't used it up until that point, correct? A That is correct. Q Okay. So, after you gave it to Richard he was really the first bulletin board service, at least as between the two of you, that actually used PC board? A That's no different than my customers that require Lotus to be installed in their computer. If I'm not using it - - THE COURT: I take it your answer is yes? THE WITNESS: That is correct and it's common. MR. KITCHEN: Yes. BY MR. KITCHEN Q Didn't you get some communication from a publisher's PC board complaining about your using their program as unregistered user? MR. OSTROWSKI: Objection, hearsay. THE COURT: No, he may answer. THE WITNESS: Yes. BY MR. KITchen: Q Okay. When did that occur? A Sometime around - - I'd have to look it up. It was sometime around '90. Q Sometime around '90. Was this after you gave PC board to Richard? A Yes, it was. Q Okay. And when you gave it to Richard, were you a registered user then? A No, I wasn't a registered user. Q Okay. And you used it without being a registered user, right? A No. That was a lie that Richard told. The same lie that Richard went around telling everybody that - - Richard is telling a lot of lies and I can bring someone in - - Q You don't know that Richard told this lie; do you? A I do know that Richard told. Q Did you hear Richard tell that lie? A Richard posted messages and Clark Development called and inquired and then they posted a message about two days later apologizing - - Q Did you see - - THE COURT: Wait a minute. One at a time, please. BY MR. KITCHEN: Q Did you see the message from Richard? A Yes, I did. Q You did? Do you have a copy of that? A No, I don't. That was years ago. And I forgave him for it. Richard does that with all his friends. That's why he doesn't have any local friends. All his friends are long- distance. Q Well, I'll object to that. Move that it be stricken. So, in fact, Clark Development called you up. What did you do? A I gave them information and they checked it and they called back about two days, they logged in about two days later with an apology. Q Uh-huh. THE COURT: Who apologized? THE WITNESS: The Development - - the Clark Development - - MR. KITCHEN: Clark Development? THE COURT: What's the name of it? THE WITNESS: Clark Development Company, yes. THE COURT: Are they the ones that own the PC board? THE WITNESS: Yes. They are the ones that own it. Richard is very ignorant. He thought - - THE COURT: Wait a minute. Just answer the question. BY MR. KITCHEN: Q Well, you were operating a PC board - - or excuse me, you were operating a bulletin board service at the time, right? A Yes. Q Now, when Clark Development supposedly heard about this, when they made their complaint, didn't they indicate to you that they had actually dialed up your bulletin board service and actually saw how your bulletin service was run? A They had - - Q Didn't they do that? A Yes, they did do that. Q I mean, they didn't just take a message from Richard and fire off a complaint to you without calling up and checking your bulletin board service? A Actually they did. That's why they apologized. I could tell you about ten things like that that Richard has done in the BBS computer community. That's why he does not have friends in this area. Q Well, I'm sure you could, but I move that that be stricken, too. THE COURT: That's ignored. Same thing. BY MR. KITCHEN: Q How long after this complaint was made did you become a registered user of PC board? A As a registered user before the complaint. Richard didn't know that. He misread his records. He misread - - Q So, when the complaint - - the complaint - - when the complaint was registered by Clark Development you were already a registered user? A The complaint was not registered by Clark Development it was registered by Richard Graham and, yes, I was. Q Okay. So when Clark Development contacted you they said you weren't a registered user and you actually were? A Clark Development posted a message on my board and Richard is so aware of all of this because he's the one that did it all. Q Wait a minute, wait a minute. THE COURT: Wait a minute. He's not in the witness chair. THE WITNESS: They posted a message on my board suggesting that if I were not registered, to contact them. They posted that and made that suggestion. I gave them a phone call and gave them the registration information. Two days later they posted an apology and I could tell you other details about the people that Richard had told these things to. And it caused a lot of problems for Richard. MR. KITCHEN: Wait a minute. I move that that be stricken. MR. OSTROWSKI: I ask that the witness not be interrupted. THE COURT: Please. I wish that he'd just answer the question. BY MR. KITCHEN: Q Okay. Now, when they posted this message on your board and they asked you whether you were registered or not, right? A No, they did not. Q They didn't? A No. They did not ask me was I registered. Q Okay. Well, what did they say in their message to you? A The message said - - I gave indication that PC board is a commercial product and requires registration. I called them and gave them the registration information and they posted an apology notice to the situation. Richard had - - THE COURT: Apology for what? THE WITNESS: For what Richard had put them into. Richard had put them into a trick. THE COURT: Well, okay, but why would they apologize? They hadn't accused you of anything? Had they? THE WITNESS: No. They hadn't accused me of anything. THE COURT: They just really gave you information you can be registered for PC board and so forth? You can't use it unless. They didn't say you were using it illegally, did they? THE WITNESS: Actually what had happened, I was kind of aggravated at the message because Richard was going around spreading rumors, trying - - THE COURT: All right. Please answer the question. BY MR. KITCHEN: Q All right. Now, when Clark Development posted that message on your bulletin board, did they say Richard Graham told us this information? A Jeff Anderson said - - Q No, no, please. We've already heard from Richard Anderson. He never made any mention of this, but I'm asking you a direct question about this. Did the message from Clark Development, did they say that Richard is the one who had made this complaint? Did they say that in their message? A No. They didn't say that in that message. Q All right, fine. You've answered that question. Now, at the time that you first read that message from Clark Development, is it your testimony that at that moment you, in fact, were already a registered user of PC board? A That is correct. Q Okay. And how long had you been a registered user of PC board? A For about a year. Q Okay. So when you gave them registration information the following day you, essentially, just told them when you registered, right? A That is correct. Q Okay. And this was not anything, apparently, that was in Clark Development's records? MR. OSTROWSKI: Objection. It's not within his knowledge. THE COURT: Rephrase the question. BY MR. KITCHEN: Q Well, did they indicate to you in their message that they had checked their records and found that you weren't a registered user? A No, they did not. THE COURT: They didn't accuse you of not being a registered user; did they? THE WITNESS: That is correct. THE COURT: Right. That's what I thought. BY MR. KITCHEN: Q Couldn't they have told, from calling up your bulletin board service, if you, well - - let me withdraw that. Let me ask: If you call a bulletin board service and they're using the PC board program to run the bulletin board service, can you tell? A At this time - - ask the question, again, please? Q If I called up a bulletin board service could I - - and they were running PC board as their program to run the bulletin board service, could I tell that? Could I discover that easily at all? A Probably not. Q So there's no way of knowing, you know, there's no way of really knowing whether somebody is running PC board or not? A Oh, you could tell which board they're running, okay. I misunderstood the question. Yes, you could tell. Q So there's a notice that comes up that says, this is PC board? A Yes, that's correct. That's correct. Q Oh, okay, all right. Well then, when PC board called your bulletin board service, they would have seen that you were running PC board, right? A That is correct. Q Then they could have told that that was a current published version, right? A That is correct. Q Was there some other problem with the version that you were running? The version of PC board that you were running at the time? A No, there was not. Q Okay. Did you make any changes to your version of PC board after you got the notice from Clark Development? A PC board is being changed every single day. THE COURT: Did you make a change? BY MR. KITCHEN: Q Did you make a change at or about the time that you got the - - A No, I didn't make any - - THE COURT: All right. Just answer the question. Listen to the question and answer. BY MR. KITCHEN: Q Okay. If we could - - yeah. Let's - - I have in the computer now, again, Plaintiff's 57, the Pier One disk. Could we go into your program again in that? A You want to run the program? Q Right, right. I know we had yesterday discussed installation and kind of got past that point. And you're running through the installation now? A That is correct. It's very smooth. It has not been tampered with. Q Okay. All right. Now, we're at the main screen and one of the differences between this screen and the one that ran on the version that you gave to Richard that, I think, we've seen on PS - - on PDSI004, which would be Plaintiff's Exhibit 5, is that that main screen had category numbers to the left and this one doesn't, okay? Is that - - is that true? THE COURT: Was that a question? BY MR. KITCHEN: Q Yes, is that true? Am I correct so far? A That's the difference. Q Okay. Is that a substantial difference in your opinion; a significant difference? A I would say yes, it's substantially different in some respects. Q Okay. And when you wrote this program for the Pier One, the Exhibit 57 that's in the machine now, you did want to make it different because you were under the injunction of the Court, right? A You want to know something? It's not really substantially - - THE COURT: If he wants to know something, he'll ask the question. You just have to listen to the question and answer the question. MR. KITCHEN: Right, right. THE COURT: Mr. Ostrowski will have an opportunity to ask you further questions. BY MR. KITCHEN: Q Was it your intention when you wrote the program for the Pier One to make it some significant difference so that you wouldn't be in violation of the Court's injunction? A That is correct. Q All right. And one of those significant differences that you made was to put the scroll bar, rather than using category numbers, to pick the category; is that right? A I actually used a different program, yes. Q Okay. So, that's - - I realize you occasionally refer to the fact that you made a different program and when you mean that, you mean like you've redesigned the modules or made different things in your programming language, right? Is that what you mean by that? A That's really a large part of the gist. Q Okay, all right. But I want to kind of focus on a different aspect, a different dimension, which is kind of from the user's standpoint, because the user doesn't know what you've written in the programming language? A That is correct. Q Okay. He just sees what he sees on the screen? A Absolutely. Q So, is that a significant change - - that was a significant change as far as you were concerned, to go from a category number to no category numbers and then a scroll bar, right? A Yes. And just like what happened to me, you had to hit a key, that was a change, too. Q Okay. Well, I just hit the key because the screen blanked out and we had your little box with your little message on it and the date and the time and stuff like that and that was part of your screen-saver program, right? A Right. THE COURT: I notice, Mr. Kitchen, you've done that two or three times for that same purpose? MR. KITCHEN: Yes. THE WITNESS: That's the change. BY MR. KITCHEN: Q By the way, how long is it before - - when it blanks, what's the time on that; do you know? A Three minutes. Q Three minutes. Okay. So when we don't touch a key in three minutes, we lose the screen and we get the other thing? A That is correct. Q And this is to prevent a burn-in of the surface of the screen? A Yes. Q And you say that is a change, that thing there? A Yes. Q Okay. So your previous program, the one that you gave to Richard didn't have a screen saver? A It didn't have a lot of things; that's right. Q Well, yes, but the question is, it didn't have a screen saver? A Yes, you're correct, yes. Q And this particular Pier One DOT EXE has a screen saver? A That is correct. Q And this screen saver is - - where did you get the screen saver? A Right here. Q Out of your head? A Out of my head. Q Pointing to your head, okay. And this is a feature that's in this program. This isn't on your computer, otherwise? A That is correct. Q Okay. So if we exit this program we don't have the screen saver anymore? A You don't have that screen saver; that is correct. Q Okay. Do we have another screen saver? A You have a screen saver that's built into another program that we'll be running and it's totally different. It doesn't have anything to do with this one. That program is not running now. The shell is totally - - it's not even in memory. It's all the way out of memory. It didn't just drop into a shell, it dropped totally out of the computer. So that shell is not running anymore. Q Well, let's - - A This utility will show you everything that's running starting with the first meg and see right here, programs, you have a command, com, command, com, environment, Pier One Environment, FOS, DOS key, the FOS and DOS key, those are default programs that allows you to open up a file or close a file. And I'll page down for more. That's everything that's running. A menu is not running now, it's not in it. So, the only thing that's running is Command, Com, CD ROM disk program, that's the MSCDEXC, that's CD ROM extension, that's what's running right there. Mega soft CD ROM extension. The DOS key, that's a key program, that when I hit the key up and down it recovers the last two commands that I typed in, FOS, the command com data. So the only thing you see running is what you see right there. It appears in memory. BY MR. KITCHEN: Q Okay. You just used a quarter deck manifest program to show us what's in memory right now or what's operating right now? A Yes. That's correct. THE COURT: What is that quarter deck manifest program? BY MR. KITCHEN: Q Is any utility - - A Yes, there's a corresponding DOS utility QEMM with a C parameter. It shows the same information but the other shows you page - - THE COURT: Is there some significance to that particular name? MR. KITCHEN: What QEMM, Your Honor? THE COURT: No. MR. KITCHEN: Oh, a quarter deck manifest? THE COURT: Yeah. MR. KITCHEN: A quarter deck manifest is a commercial program. THE WITNESS: Yes, it is. MR. KITCHEN: Okay. BY MR. KITCHEN: Q And is that a program, a utility that's sold with QEMM? A Yes. Q Which is a memory management package? A With desk view, yes. Q Okay. Desk view. Okay. All right. And quarter deck is a software publisher? A It is. Q All right. Let's go back where we were. Now, maybe if I ask a few questions and we don't touch the keyboard we'll actually see that save, screen save, come up in three minutes? A Right. You can notice that it would be a different wording than the ones from the menu program. Q Okay. So you had no screen saver in the one that you gave to Richard? A That is correct. Q And this one has a screen saver. And you consider that to be a significant difference? A Yes, I would. Q Okay. A screen saver is unusual, though? A They are not. Q Okay. Are they fairly common programs? A I would say. Q Okay. Do most computer operat - - people who have computers, do you think have screen saver programs? A I'm sorry. Can you repeat that? Q Do most of the people who have computers have screen saver programs? A No. They probably should but they don't. Q Okay. So you think it's a device that they should have? A Yes, absolutely. Q Is a screen saver device typically shipped with other programs like - - oh, I don't know, some of the bigger programs, Word Perfect and the like? A No. Q They don't? A That's correct, it's not shipped. Q All right. So you're saying Word Perfect does not have a screen saver device? A It does not have a screen saver device. Q But there are other programs that do? A There are some that do. Q All right. Let's - - the options that are available here, are there any options that are different from the one that you gave to Richard? A Yes, they were rewritten. Q Well, again, I don't want to dwell on what may or may not exist in your programming language, the source code. What I want is from the user's standpoint, are there any other significant changes that are seen on this screen? Uh-uh, don't touch those keys, we're waiting for the thing - - can you just kind of talk about them? A Yes. When I wrote -- the libraries that I used for the program I delivered to Richard, when you press enter, you will get a box with options to do something from that particular option, execute or simply file, or do something to that effect. Q Are you talking about what you would get by pressing enter on this screen? A Actually the program that I provided for Richard was the program, you hit a number and it will bring up a file list. Q Let me interrupt you because the screen did what we were hoping it would do. A Okay. Q Now we have a little box that says "Save Screen, Version l.022." And this has a copyright notice on it. A It does. I was doing a lot to try to make sure that this didn't happen again. Q Well, is this save screen a separately copyrighted feature? A It - - Q Answer yes or no. A Yes. I'm copyrighting all of my libraries, every little tiny element of it so this won't happen again. Q Okay. Now, down on the third line of that little block there, it says, "Your messager here". What does that mean? A It allows the user and in this case, whoever owned this computer can customize that message. They can put "Interest" and, you know, something in there like, anything, they can put "This system is alive" or just anything. Q By the way, while we were speaking - - A Ron put "Money, Money, Money" in his. Q Okay. While we were speaking there was a beep and the block with the text on it moved to a different location on the screen. This, again, is consistent with the idea of saving the screen from too long an image in one place? A Yes. It chimes every fifteen minutes. Q It changed colors, too, didn't it? THE COURT: Every what? THE WITNESS: Every fifteen minutes. THE COURT: That moved more quickly than fifteen minutes. THE WITNESS: Actually it chimed, chimed, made noise, makes noise every fifteen minutes. THE COURT: Oh, yeah, but it shifted to save the - - THE WITNESS: Every one minute. THE COURT: Did it shift to say the save the screen? THE WITNESS: Yes, Your Honor, it shifted to save the screen. THE COURT: How often does it shift? THE WITNESS: Every - - THE COURT: At the end of three minutes? THE WITNESS: Every one minute. THE COURT: One minute. So why would this shift in one minute where you can hold an image on the screen for three minutes? THE WITNESS: Right now my concept is to distribute all the burn-in, all the colors, as Mr. Kitchen mentioned he observed the colors even changed. So the colors are not stationary and the position of something being presented - - THE COURT: Why one minute as opposed to three? THE WITNESS: The - - THE COURT: It's safer, I know, but - - THE WITNESS: Actually, to let the user realize that the system is live and not locked up. BY MR. KITCHEN: Q Actually, there's are a variety of screen savers, aren't there, that are intended to be a little bit entertaining? A That is correct. Q There's one called Aquarium; isn't there? With fish going back and forth? A That is correct. Q There's one called Explosive or something that has fireworks? A Yes. Q Okay. If we hit a key we'll be back to our regular screen, right? Go ahead. But how does somebody, by the way, change the message on there? A Would you like me to change it? Q Well, I want you to tell me how to do it first? A You add a different file. Q So is this something you can do on this screen right here? This is one of the features on this screen or do you have to do something separate and special? A That's not on - - I didn't put this on the screen because it wasn't something that I was directly selling to my customer in this particular case. Q Your customer being - - A Right. I just provided him with a means to retrieve files off the CD ROM disk. Q Okay. So it wasn't your intention to really include this save feature here? A It's something special that someone can communicate with the author and I guess support for, and I would gladly tell them what to do. It's very easy. Q Okay. So this was a bit of a teaser, so to speak, with the hope that they would call you up and communicate with you and, maybe, end up being a customer? A No, I wouldn't say a teaser. But, I will say that the concept as discussed with Mr. Armenia and the same with Mr. Graham, was that I would get promotions and I would get customers by the presentation of my program here. Q Okay. Can you tell us other significant differences that are visible on this screen from the one that you - - the program you gave Richard? A His Honor noticed a clock down at the lower left-hand corner of the screen. Q Okay. You consider that to be a significant change? A Yes. Q Putting clocks somewhere on a particular screen is not unique or original in this program, though; is it? As opposed to, say, other programs, right? A It's the only one that's in any retrieval, but as far as programs in general, I don't really have any totally unique ideas. I just organize things in such a way to make it real entertaining and convenient for the user. And that's one of the things I put in. Q Okay. Well, let's go to the next screen, which I guess would be selecting one of these categories and getting over to the list of files, right? A Do you want to name one? Q Yeah, well, let's go with - - how about that thing that says "GIF Pictures". A Which column is it in? Q First column. A Oh, I'm sorry, okay. Q Now we're in the, I guess, the second screen we've occasionally referred to it or the file list screen, this is with the list of all the files, right? A That's correct. Q This has a scroll bar also but so - - A It does. Q - - did the one that you gave to Richard, right? A It did. Q Is there any significant difference in this screen from, again, from the user's standpoint and what the program was you gave Richard? A Well, I guess you wouldn't consider the clock significantly different. Q Okay. But that is one of the differences, though. Anything else? A Yes. I - - well, I have an option to hit Alternate M, and you can toggle the module plus, you know, the whole input is different. Q What was the M for? I notice that when you hit it - - A Monotype. Q I notice that it went to black and white. A That allows you to toggle between color and black and white. Q Okay. The one that you gave to Richard didn't have that feature; did it? A That is correct. Also, you see all those elements there. You hit alternate and you can get an option. For instance, Alternate D, and you can go to DOS or you can hit Alternate D and type in a DOS command. Q All right. Back to the screen where it was, though. The one program that you gave to Richard did that work with monochrome monitors at all? A You know to tell the truth it would have but Richard really didn't have a complete program. Q Well, okay. The incomplete program that he had, did it work with monochrome monitors? THE COURT: With what? MR. KITCHEN: Monochrome monitors. THE WITNESS: Yes, it worked with monochrome monitors. The thing is - - BY MR. KITCHEN: Q There wasn't a problem with that at all? A That was a problem with the selection of colors, that some of the items may not be highlighted as easily. It would be kind of, you know, hard to tell something unless it was highlighted. Q What was the program - - what was the problem with the program that you gave to Richard for users who had monochrome monitors; what was that problem? A Had no option to see the toggle between black and white and color. Q Okay. They couldn't see the toggle or what? A It wasn't there. Q Okay. Was that corrected on later versions? A It's a feature, you know, that's provided in all our programs. Q But, I mean, you didn't intend it to not be there, right? A I really didn't finish putting all the libraries that were given and everything. Q So, therefore - - A That's correct. That was a - - Q All right. Now, in this case it says, "Hit the Alternate Key and Press X and you will be able to extract something." Could you do that with Richard's? The program that you gave to Richard? A No. It's written different. Q What did it tell the user to do if they wanted to extract something in Richard's program? A Press enter. Q Oh, press enter. A So this is totally different. Q Oh, what does pressing enter do here? A It reminds the user that this is a different program. Q It does? A Yes, it does. Q Let's see. A I do have followers, and I will try to give them some guidance as to how to get wherever they're going. Q Okay. And is the reason that you changed the key to extract from an enter key to the Alt X key, was that intended to be a significant change? A It's not a change, it's different. But, yes, when I wrote this I used a different concept. I use a lot of different concepts. I even - - I just use a lot of different concepts and, yes, that is a different concept. Not the same. It's kind of hard to just throw everything you know out the window, but I did put a real good effort towards it. Q Well, but from the user's standpoint, he's just pressing Alt X instead of pressing enter. It doesn't make a whole lot of difference to him; does it? A That is correct. No matter what I write, it's always going to be easier for the user. It's going to be real easy for the user. In fact, I'm in the process of writing something where you press in toggle commands. Q Good. I suppose - - well, never mind. Okay. Let's press any key to continue which is what it says to do. And you have a V for View. Alt V. What - - does that do anything different than what you did on Richards's? A Yes. It allows you to view pictures. This is a Gif picture of - - Gif file right here. It will allow you to view that. Actually, right here it will allow you to view the contents of that Gif file. And right here will allow you to view the contents of that Gif file. Q Okay. Now, is the ability to view a graphic picture or a Gif file, that's G-i-f, and all these things with a G-i-f suffix, they're a special kind of file; aren't they? A Yes, they are. Q All right. And they are the things that actually draw pictures? A They are. Q All right. And does it take anything special to be able to view them? A It takes a module that I put - - Q Okay. A Oh, an external program called C Show is by default, supplied, inspected by the program. Q Oh, okay. So it uses an external program? A Yes. Q This is a program you didn't write yourself? A That is correct. Q Okay. A Like PK on Gif, that's correct. Q And they're what we might call third party programs, or external programs? A That's correct. Q All right. Now, what happens when you pressed - - was there a view command on the program you gave Richard? A No. I don't put a view command on there. Q Okay. So, you couldn't look at these graphics, these photos with Richard's? A It would have took about five minutes for me to set it up where it could do it. It had the ability to do that. But it wasn't turned on, that's correct. Q Well, what did somebody have to do if they wanted to view one of these Gif files - - excuse me. Let me ask a question before that. Did Richard's disk include some Gif files? A Yes, it did. Q Okay. So somebody would have wanted to look at them, right? A Yes. Q Okay. What would a person using Richard's program have to do? A They would have the options to retrieve the programs off of the hard drive. And add, you know that utility, when you first load it, it says "Use of preferred utility". Q Uh-huh. A Right. C Show right there. Q Okay. A And then it's press enter, and then it just goes right there and shows the files. Q Okay. A That's all I had to do. It's right in there. Q Okay. Now, is that one of the questions that was asked on your installation procedure for this? A That is. Q And you have C Show as a default, right? A You asked about the installation. I'm showing - - this asks the same thing that the other ones ask because I did tell you that that was one of the common libraries. That's a very common library that I copied. But that was one - - that wasn't totally rewritten, that particular modular set up, was not totally rewritten. Q Okay. So, is it safe to say that the view feature on this program is pretty much like the view feature on Richard's? A No. It's definitely because this is rewritten. Some of the libraries were rewritten, some of them were not, but the whole package was reconstructed and put together. Q Okay. But they both use C Show as the program to actually run Gif files? A C Show did not have anything defunct or default about it, with the program that's supplied to Richard. It did not have anything default about it. The default about - - the program provided for Richard was list. And even that was not built in as something default. There's a default built into this one as list. And there's also a default built into this package as called C Show is built into it to look for and if the user has it, it would use it. Q You have a C Show program included on this disk, right? A On that physical hard drive disk? Q No, on this CD ROM? A On the CD ROM disk? Q Yes. A No, I don't have it included on that. Q You don't? Well then, if we pressed Alt V right here - - A Uh-huh. Q Why don't we do that? Press Alt V and let's see what this thing looks like. This is always impressive, I think. Now, this had to use a special program you said called C Show to be able to generate this nice picture on the screen, right? A That is correct. Q And we're looking at, oh, it looks like some space ship blasting some aliens or something out of the universe, okay. But in any event, Richard's - - the one you have Richard that would also require a special program such as C Show, right? A Yes, it would. Q Now, C Show is not on this disk here, this Exhibit 57 that's apparently in here, right? You said it wasn't included, right? A The package is on that, but it's not on Gif. The user doesn't have it. You just type in commands. Q Please. A It's on there, yes. Q It is on there? A Yes, it is. Q Where is it located, by the way? A I'd have to back out of this and locate it. Q Okay. You don't know offhand where it is? A That is correct. Q All right. But, I mean, it's not on there as one of the Shareware products? Well, let's put it this way: Where is this computer getting the C Show program to show this picture that's on the screen at this very second? A From the systems environment. Q Okay. And where is that located? A Somewhere in the system's path. THE COURT: System's what? THE WITNESS: Path. THE COURT: T-a-s-k? THE WITNESS: Most likely in the same area - - THE COURT: T-a-s-k? THE WITNESS: P-a-t-h. THE COURT: Path. I see. BY MR. KITCHEN: Q And on what drive is that located? A Somewhere, probably where PKN Gif is. It's located in the same place as PKN Gif. Q And whereabouts would that be? A Do you want me to drop the DOS and look? Q Okay. A It's on the hard drive. Q Oh, it's on the hard drive. It's not on the CD ROM; it's on the hard drive? A It was set on the high drive first. Q Let me ask you something: Where - - how did C Show, that special program, get from this CD ROM disk over to your hard drive? A Using the CD ROM retriever program. You want me to demonstrate it? Q Okay. At what point did it move over there? When you installed the program? A No. Q Okay. When did the C Show move over to the hard drive? A Physically on this, it's been there. Q Ah! Okay, okay. Then my question to you would be this: For somebody who didn't have C Show on their hard drive, okay, and they bought this Pier One, put it in here, and they said, wow, I want to view these pictures of the aliens getting blown away, what would happen? A My program would prompt to them that they require C Show in its path and then they would hit a key, go to the categories of Gif files, page up and down, tag C Show, and press enter and then hit Alt X, extract and proceed from there. Q Okay. THE COURT: So would it then be on the hard drive? THE WITNESS: It will be on the hard drive. Yes, Your Honor. All the programs that are run are always on the hard drive, always. THE COURT: Everybody's hard drive has all of those programs? THE WITNESS: It's provided on the CD ROM disk for people who don't have, and they extract it, and then it's on the hard disk. THE COURT: But not everyone has it on the hard drive, some people do and some don't? THE WITNESS: That is correct. THE COURT: All right. That's my question. THE WITNESS: Okay. BY MR. KITCHEN: Q So part of the fact that we were able to just press a couple of keys and, bingo, we have the aliens on the screen is because that C Show had already been put over into the hard drive? A That is correct. Q Now, in Richard's case, if somebody had C Show on their hard drive, pretty much the same result? A Ah - - Q Well, they'd be able to view something like the aliens just as easily? A No. It wouldn't be as easy. Q Okay. A But for one, even they're mimicking what I do with this graphic displayed option, when you display it, you can't just highlight something and press in and press option like this here. You can't do this here and nothing else and it just comes up. What you have to do is a menu comes up and then you go to that menu and then you pick out the file that you want to do with this and that. But this one you just point to the one file and it comes up. The module that I wrote for this specifically has a parameter list. It has a special parameter list that causes this to just show the picture without just running into the C Show. And that parameter list is not in that menu because this particular option that I have in this disk. Q I'm not sure that you didn't lose us maybe a paragraph or two ago. But, to maybe cut it short, is that a significant difference between what you gave Richard and what you got in there? A It is, it is, yes. Q Okay. And more convenient, more user friendly? A It's very user friendly, yes. Q Okay. Let's go back where we were. Any other things? For example, what happens if we hit Alt X to extract? A If you have a zip file and you hit Alt X it would extract that file. Q What if we did it on the Gif file, by the way? A It wouldn't extract it. Q Okay. Because extraction is only for zipped files? A That is correct. Q Okay. Now, has this been unzipped? A It has. Q And it had to use another outside program, right? A It did. Q PK unzip? A That is true. Q Okay. Is what you just did by pressing Alt X on this zipped file, is that any different than what you would do by pressing enter with the program you gave Richard? A Yes, it's very different. The words, its set up is different. It is different. You use Alt keys. I really was kind of handicapped, you know, to write a program because I had to try to find a different way for something convenient, but yes, it's different. And it's not as convenient and my client, you know, felt bad because I had to do some things that I wouldn't normally do just to provide these things. Q Let me stop you for a second here because, gee, you hit Alt X and this thing extracted pretty immediately; didn't it? A That is correct. Q I mean, how is that more inconvenient? A Like I said, with the confinements that I had, I still was able to make something user friendly. Q It was a more difficult job for the programmer but you did the job? A Yes. Q All right. But, other than the fact that you hit Alt X and on Richard's program you'd hit enter, it looks about the same to the user, right? A That's right. Q Let's go back to the previous screen. Okay. A This is written different, too. At this particular time - Q All right. You just hit escape and what happened when you hit escape? A When I press escape a prompt came up, delete files created in and it shows you the area. Q Oh. Because when you unzipped, you wrote those unzipped files over into the hard disk drive? A That is correct. Q Okay. And so now it's asking - - THE COURT: What's a hard disk? MR. KITCHEN: That's the thing that everybody's computer starts off with. THE COURT: Hard drive? MR. KITCHEN: Hard drive, yeah, right, different from the CD ROM drive. THE COURT: Phraseology, you threw a new term in there. MR. KITCHEN: Well, this is the problem with the computer people who seem to adopt names without design. THE COURT: Well, I believe we've been talking about hard drive and now you get a hard disk. So I wondered. MR. KITCHEN: Yes, that's right. Hard disk drive, yeah; right, it the - - THE COURT: Hard disk drive; is that the full name? MR. KITCHEN: Hard disk drive may be the full name, perhaps. THE WITNESS: Yes, I would say. THE COURT: Hard disk drive. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q And these things are written over into the work area, right, that we had set up, okay. So now it's asking you if you want to erase them because we're going to leave them, right? A That is correct. Q Okay. Let's say yes, we want to erase them and we'll do that. Go ahead. A This runs a module called delete files and it's a module that I wrote and it's totally different. What I did and what I provided to Richard, I used DOS. It actually shells out the DOS and use DOS delete commands to delete the files. While I was rewriting the program or doing something different I wrote a delete function to delete files off the hard drive and that's what that does; it's different. Q Okay. So, internally it's different. Does it look different to the user? A Yes. Q How is it different? A Because it stays within the confinement of the program. Everything is very clean. Q It looks cleaner then? A That's correct. The other one, you know, you have the DOS, when you're in DOS, it has by default a black background and a white program for the letters, a grayish white. The program here has a certain consistency because it does not leave the program, it stays right inside the retrieval, nd it looks, you know, comparable, convenient for the user and internally it's different. Q You think that's a significant difference? A Yes, I do. Q By the way, when you're ready to leave the programs that you've unzipped on the one you gave Richard, does it ask that question, whether you want to delete? A Yes. That's something that I would always do. I would never just tear up, destroy, from off of someone's hard drive without prompting them what's about to happen. Q Okay. And even on Richard's there, you could answer yes or no, whether you want it? A That is correct. Q And then if you say, yes, I see up here it opens up a box and it kind of asks you again whether that's what you want to do, right? A Not on this. I wrote this a little different and it's totally written different. Q All right. A On Richard's, it did give you a prompt for confirmation. Q Okay. This says "Press any key to continue" right? A. (No response.) Q. Okay. Now, in this scrolling thing, by the way, you can use arrow keys and it moves that bar up and down? A That is correct. Q Why don't you do that a couple of times just to kind of show that. I notice that the scroll bar doesn't move from file to file, it moves from line to line and look at the line it's on right now. A Yes. Q Okay, or right now. It's not on a file right now, is it? A That is correct. Q Okay. So if you used like Alt X what would happen now? A It would extract that file, and this is different. I wrote this different. Before on the program that I wrote for Richard it would handle that line. Q Uh-huh. A This module, it would handle that whole block of text. This one doesn't deal with a line it deals with a block of text. Q Okay. So, in other words, as far as this computer is concerned, even though you were down on that third line of the description, it still thinks it's up on the first line, it makes no difference. It's close enough? A Right. The module that I wrote for this package is not line oriented. It's block oriented with the text. Q Okay. Was that different from what Richard's was? A Very much different, yes. Q Okay. What happened if you were on one of those kind of in-between lines with Richard - - A Because the line - - Q Wait, wait, wait - - THE COURT: Wait a minute. Wait for the question. BY MR. KITCHEN: Q What happens if you were on one of those in-between lines with Richard and tried to extract something like pressing enter; what would happen on that? A It, being line oriented would have given you response according to the line. Whatever was in the first few columns, if there's nothing in here - - THE COURT: If you had a five-line description of a particular file and your scroll bar was on the third line and you pressed, bring it up, what would it bring up? Not just the third - - THE WITNESS: Nothing. THE COURT: Nothing. I see. All right. That's the answer to the question. BY MR. KITCHEN: Q All right. Good. And you think that's a significant difference here? A Yes, I do. Q And an improvement to boot? A If I throw this out and you want to start over again it might take me awhile but the results would be an improvement. It would be different but - - Q But I'm asking, you think this is an improvement and you think it's a significant change? A Yes. Q Let's back out of this and back to our thing again. I guess we got astray. Okay. All right. Any other features now - - well, let me ask it different because when you pressed enter on the - - and by the way if you press enter here, nothing happens, right? A It would give you, us, a very friendly error message because it's different. Q Well, let's press enter and see. Oh, that, we saw that, right? And it tells you that now you do it a little differently and it says press any key to continue? A Right. Instead of just giving a total error in our concept, it's very friendly and it lets you know how to go back. But this is different. Of course, when you go into the other program, you would go into options, you know, extract, you know, go into a block of options. Q Tell me something. Why did you put this error message there? Did you think that people might, out of force of habit, press enter? A Yes. I know my customers using my program is going to expect certain things. Q Okay. A And, yes, I put as friendly of an environment transition as I possibly can to come back, to come into the new direction. Q In other words, a lot of the users that might be using this Pier One might also have had one of the Night Owl disks? A Right. They would have had my other program. Q With your program on it? A Right. Now I have a new program and, of course, the users are most likely going to try to follow the program, so I really expect for them to - - I expect to give them some friendly guidance, of course. Q Okay. So, basically, purchasers of the Pier One Shareware disk might also have been previous purchasers of the Night Owl disk? A That is correct. Q Okay. All right. Let's hit any key to continue. And in Richard's disk, when you hit enter, did it automatically start the extraction or did it open up some kind of a window or something? A It opened up a window right there to give options. Q Okay. You don't have anything like that, do you? A That's right. I didn't go into that direction. I tried to be as different as I possibly could. Q Okay. You put the options down here on the bottom of the screen instead, right? A Right. Right. I had to give the user some options and I put options in as a friendly environment in errors as I possibly could. Q Understood. By the way, what's the significance of that term up on the second line, the far right-hand side where it says "CAT No. 22"? A That's a category that has been selected, Category No. 22. Q Why is that significant to the user? A Why is it significant to the user? Q Yeah. A It's - - I would say it's significant. If someone has any problems and they suggest to, you know, text report, that something is not working, I would prompt them of what do you see on the screen and read it to me and I would identify it. Some things that I put in start off as a debugging mechanism just like the screen, to grow and shrink, it was debugging. I wanted to make sure that I was getting the right size and so I decided to build it in as a feature, you know, because it don't take away from the appearance. That right there is a prompt for me, for the programmer. You're right, it's not really significant for the - - Q In fact, when the user was on the main screen reviewing the various categories and he puts the scroll bar down on the Gif pictures or whatever that category name was, he didn't even know that was Category 22? A Absolutely. Q Because there's no number next to that category? A That's correct. Q Okay. And as a matter of fact now that we're up on the list of files there's nothing here that indicates that he's looking at the Gif pictures category; is there? I mean you don't have the category name anywhere on the screen; do you? A That is correct. Q Okay. Any other features that are different from what you gave to Richard that's apparent on this screen? A I can't think offhand. But I wouldn't even think about these offhand, had you not mentioned them. I mean, if you keep talking I'm quite sure, like because I wrote a different program it would probably come to me. Q By the way, that category number we were talking about in the upper right-hand corner, actually lined too far right, that's also on Richard's disk, too, right? A That is. Q Will this particular program support a mouse? A No, it doesn't have mouse support in it. Q Okay. And the one that you gave Richard didn't support a mouse either, right? A No, it didn't. Q Can you format a floppy disk while you're running this program? A Yes, you could. Q Does it do it automatically? A No. I would think that would be detrimental to the user's hardware. Q You do? A It's just an automatic, a serious format. Q What procedures does a person have to shell out to DOS to format the floppy themselves? A If they were interested in using such features, they would put that as a user preferred utility. You can hit E right here for set up. Q Oh, well, let's take a look at set up. Now you're back to the main menu. Well now, you've dropped down to DOS. A Yes, I have. Q And what program are you in now? Are you in a particular program that you are using? A Yes, I am. Q What program are were you using? What program were you using? A I was using Q. Q Q? What program is Q? A Q Ed. It's an editor. Q It's an editor? A Yes. Q Is this something that comes on the Pier One Shareware disk? A No. Q All right. It's something that was on your machine? A Yes. It's something that comes with - - MR. OSTROWSKI: Objection. THE COURT: What's the objection? MR. OSTROWSKI: Mr. Kitchen knows that it's not his machine. I just wanted to make that clear. MR. KITCHEN: Oh, yeah. When I'm saying "your machine", I mean the machine we're using right here and we know that that's Mr. Ostrowski's machine. But in any event - - BY MR. KITCHEN: Q And what did you edit? You edited your Pier One Config file, right? A That is correct. Q Well, a normal user wouldn't know how to do that; would they? A That file is very friendly. It's very friendly. It has words that describe whatever presence to change. Q A normal user wouldn't know how to do what you just did, though, right? Somebody just starting out? A That's not correct. I put some of this on someone's computer the first day and just tell them to edit the config file. And they do it. No problem. Because all I had to do is just point to a line, type in something, and press and then save it. It's easy to do. Q Okay. Then the procedure that you just added which now allows somebody to format a floppy disk, is this something that's like in your documentation? I mean, somebody read one of your text files or your documentation on the program, they would find out how to do that? A I haven't been writing documentation. No, it's not in the documentation. Q All right. So, in other words, they'd have to call you up and find out how to do what you just did? A If it was important I would put it on the help screen. That documentation I have. Q Apparently you didn't figure it was important? A I already mentioned to you, no, I didn't consider it important. Not for retrieving files off the hard drive. No, I don't consider that important. Q So the bottom line answer to this whole series of questions - - A Everything I just said is important - - THE COURT: Wait a minute. BY MR. KITCHEN: Q So the bottom line answer to this whole series of questions is that this particular program does not have an automatic feature that allows you to format a floppy disk that's built into the program when the user gets it; is that correct? A That's correct. Q All right. Now, we've only heard one beep coming out of your program which is a beep that was associated with fifteen minutes passage on the screen saver, okay.? Is that the only sound that your particular program makes? A It would probably be to advise you to hit yes or no to confirm delete and direct the files. If you just press enter. But that's about the only - - no, it doesn't have all the features the other program has. The program would normally handle most of the - - any problems. Q Do you consider the addition of beeps to be a significant change? A I consider it to be somewhat of an annoyance. Q Well, okay. But we can have changes that are good and nice and we can have changes that are annoying and not nice. But regardless of that, would you still consider it a significant change? A No, I wouldn't consider it significant. Q Okay. So, the fact that you put beeps into this once or twice or something like that, is no significant change from the program you delivered to Richard? A The fact that multi-standards - - Q That's a yes or no, pretty much. A That's correct. Q Okay. When you install this particular program, does this particular - - does it copy the Pier One EXE program over to the hard disk? A No. I would never do that. Q All right. So it just simply loads the Pier One into the memory, right? A That is correct. Q And, of course, once it's in memory, then it operates? A That is correct. Competent to the disk would be above. Q You wouldn't consider that to be a good thing? It would a detrimental thing? A I consider it to be very detrimental. Q Okay. Well, since it's really detrimental, I mean, we're not talking about annoying, we're talking about detrimental, right? A Absolutely. Q Okay. THE COURT: Functionally detrimental? MR. KITCHEN: Yes. THE WITNESS: I can tell you why. THE COURT: Is it functionally detrimental; is that what you mean? THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q Okay. So if somebody were to do that as part of a program for whatever reason, would that be a significant change? A I had that option built-in. Q No, no, wait a minute. A No, that's not a significant change. Q Oh, it's not significant at all? A No. Q Even though it would be extremely detrimental? A You can make some changes and not significant, that might cause the program not to work. You can make some changes. I wouldn't consider that significant. Q You wouldn't consider it significant even though it was extremely detrimental? A I don't know what you mean when you say "significant"? Do you mean like if somebody does a lot of radical programming? It won't take a lot of radical programming to make that change, but it would be a significant change from operating out of the program. Q Let me put it - - THE COURT: Seems to me what you're saying is it wouldn't take very much effort to put it in, but it would be significant once you put it in? THE WITNESS: That's correct, Your Honor. BY MR. KITCHEN Q Well, let's put it this way: If you had made a change like that and I know you consider it detrimental, and you wouldn't, but let's say you did make a change like that so that when somebody ran Pier One it copied Pier One Dot EXE over into the hard disk on a person's computer. Would you have considered that a significant change so as to keep you within the bounds of the Court's Order prohibiting you from marketing the Night Dot EXE? That's what I meant by significant and that's what I'm asking you. A No. That's the reason why. Q Okay. So that would have been an insignificant minor change that would not make the program any, really, any different? A Yes. Q Okay. I guess we could exit this thing. Oh, 57. And let me put in Plaintiff's 5, marked Pedia size 004 and why don't you fire up the Night Dot EXE Program on that. Okay. Go ahead and get the space or whatever. This asks, of course, we've been through this, the installation question, so I guess we can go through that normally. Okay. Let's go into one of these like Gif. Is there one for Gif pictures? How about No. 24 there? Okay. And this has got the category number in the upper right-hand corner on Line 2, right? A It does. Q In fact, this also has a feature in the center where it actually gives the title of that particular category that we happen to be in now. A Yes, it does. Q Okay. Would that be a user friendly feature? A I would say yes. Q And your program doesn't have that feature, right? A To the - - Q That's correct, right? A That is correct. Q And is that a significant change? I mean, you wanted to make your program different. So is that one of the significant changes deleting the name or the category? A I wouldn't say that's a significant change but it was significant that when I wrote a new program that I did not take the time to put that there. Okay, in the next version it will be there. Q Okay. So, if you thought about it, you would have included it? A I did do a lot of work. It's a different program. Q But was it - - A But it's intended to be friendly to the user. Q But was it unintentionally omitted? A Yes. And to make it different I will try to find somewhere on the screen to let the user know what category he is in. Q Well, yes, but - - A But the module will be different. Because I wrote it on the program. Q But your program on Exhibit 57 doesn't have this feature and it doesn't have another place on the screen that tells you what category you're in, does it? A Right. And the process is right and I failed to get around to putting somewhere for the user to know what area he's in. I consider that insignificant since the user knew it when he pressed the key. Q I'm just wondering if it was something that you purposely left out because you wanted to have a different look? A I didn't purposely leave things out to have a different look. I wrote another program to achieve the objective. Q The objective being to not violate the Court's Injunction, right? A I wrote another program not to violate the Court's Injunction. The objective was to retrieve files off the CD ROM disk for my client. Q Okay. Yes, but you previously testified that you made certain effort not to look like you were violating the injunction, right? A I made an effort and I did not violate the injunction. I wrote another program so as to comply with the injunction. That's what I said. Q Okay. All I'm asking is whether you left out that title that we see now on this program as one of the means of not violating the injunction? A I didn't leave out anything to avoid violating the injunction.I wrote another program. The program may not have been as powerful in some features, but I wrote another program. Q You keep trying to answer a general question and I'm asking a very specific question. Did you leave that out, did you not include it so - - THE COURT: What's that pounding? MR. KITCHEN: Pardon? Oh, I'm sorry. BY MR. KITCHEN: Q So that it would look different and, therefore, not violate the injunction? A No. Q Okay. What does somebody have to do here to bring up a Gif file? Does it say? A Yes. Q Now, are there a series of commands? Kind of a status line or command line that tells us what we have to do to make something happen? A Yes. Q And where is that located on this screen? A On the twenty-fifth line. Q Okay. That's the same line that you have your commands on, right? A Yes, it is. Q Okay. Why don't you go ahead and hit enter then to do that. Okay. Now, this opens up this whole middle of the screen? A That is correct. Q Okay. THE COURT: Now are these pictures they talk about, are those on your hard disk drive or in the program? THE WITNESS: They're on the CD ROM disk. THE COURT: They're on the round. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q Now, we're still using V for view, aren't we, but we're not using the alternate key? We just have to press V and we can view it? A That is correct. Q Okay. Hit V. Okay. Now, this says, "Can't extract a Gif file". A That's correct. Q Okay. You're not asking to extract a Gif file, are you? A You asked me to hit the V key. I knew what the V key was going to do. I hit the key you told me to hit. Q I see. What does the V key do? A It reveals of the contents of a Gif file of a zip file. Q Ah! Okay. What does somebody have to do to show the picture? A Copy it to the hard drive. Q Okay. All right. Why don't you go through what the steps would be to make our picture show. A Okay. Q Tell us what you're doing now? A Okay. I highlighted the picture. Q Uh-huh. A And I hit C to copy and press edit to confirm. That's nation. The area I want to cover to is C:/Pier One/ unzip. This whole - - Q Excuse me. This is a night disk. Is there some reason we're sending it over to Pier One unzip? A No. I'm sending it to a hard drive that I know exists on the - - I'm sending it to an area that I know exists on the hard drive. Q Well, we installed this when we opened it up; didn't we? A There's a lot of areas on the hard drive. You can copy to any sub directory. You can copy it to a floppy disk, you can copy it anywhere you want to copy it. I recall an area, a physical area on the hard drive. Q I understand that. But I mean, when you install this particular disk, that you gave to Richard, it sets up a work area on the hard disk; doesn't it? A Right. I could just as easily copy it to that area. Q Well, how would you do that? A I would cite C for Copy. Q Wait a second. A Okay. Q You have to put in a destination path? You can't just hit enter? A No. The program is giving you an option to put the file that you retrieve, wherever you want to put it. Q Well, what happens if we hit enter? A It's going to prompt you that that's not an accurate - - it asks you for a path. You know, it's very friendly and will tell you that that's not a path. Q I see. THE COURT: That sounds unfriendly to me. THE WITNESS: He's asking me to do something that's not normally done. BY MR. KITCHEN: Q Well, okay. What is normally done if somebody wants to see what this picture looks like? A Normally, they would put this picture wherever they want to put it and then run a program to see it. Q Okay. A There's another way. Q What changes are you making now? A You see where I had a list right there? Q Uh-huh. A I put a C Show right there. And now I press enter and hit U for utilities. I would have to extract our program first. That's what it's made to do is extract programs. Q Well, I guess I'm asking you to put yourself in the position of the poor shamazal who has just bought this particular disk and wants to see some pictures. THE COURT: Which are shown among your categories. THE WITNESS: Which categories were the pictures in? THE COURT: We just had it on the screen a moment ago. MR. KITCHEN: Right. BY MR. KITCHEN: Q Now, you've extracted these PK unzipped ones - - A Yes. Q - - and now we have a screen here - - A That's the same screen that came up when Richard displayed, indicated that he was showing pictures. Q In fact, that's why we're hearing the clicking sound. We're waiting for fifteen seconds to go by, right? A Right. This is the same screen. Now it asks you for the - - THE COURT: Same screen as what? As what was in the window? THE WITNESS: Yes. The facility that they said that was new for Richard's disk, that's the same screen that you saw. BY MR. KITCHEN: Q This is C Show or compu show? A Right. C Show or compu show. Q Okay. This is a third party program? A Right. Right it is. Q Like PK unzipped that we're going to use to view Gif files? A That's correct. Q Okay. Well, go ahead. Let's show us one. A What sub directory were they on? Q I don't know. A Okay. They're in Area 24. As I mentioned, you can do it but it takes a little bit of work because it wasn't built into it directly. Q Why are we waiting fifteen seconds to run C Show? A Because it doesn't have a parameter that's passed to it, like it does on the Pier One disk. There are your pictures. Q This is a pretty elaborate procedure and everybody has to go through all this when they're using the program that you gave to Richard to see a Gif file? A No. On this disk, basic one, it takes just a little bit more but - - Q There we go. A That's the pictures you saw and that's the same screen. Q Uh-huh. Okay. A And you can point to anyone of those pictures. Q Who's that? THE COURT: That's the portrait of a pretty woman. MR. KITCHEN: Yes, okay. All right. BY MR. KITCHEN: Q All right. So, would you say it's more difficult then in using the program that you gave to Richard than it is to use the program that you did for Pier Shareware? A That is correct. Q And is that a significant change that you made? A I would say, yes. Q Okay. A In some ways. This is not the same program. This is not the C Program that I gave Richard. This is a basic program. It's not a C program. A C program is on a different disk. Q Oh, I see. I'm sorry. I'm sorry. You're right. You're right. Okay. You told me and I didn't - - THE COURT: But to produce those pictures on the screen you had to get onto or take off from your hard disk drive or are they on the CD ROM? THE WITNESS: They were on the CD ROM. I was thinking a more convenient way would have been to put to them on the hard drive, but they were actually on the CD ROM. THE COURT: But I had some note that although they're on the CD ROM that you had to copy them to the hard disk drive in order to show them on the screen; is that right? THE WITNESS: I suggested that that would be the most logical way to bring them to the hard drive and work with them. THE COURT: Not a must but should? THE WITNESS: Yes, Your Honor. BY MR.KITCHEN: Q I'm sorry. I just kind of misled everybody and myself because I thought we were talking about the program that you gave to Richard that you'd written in the C programming language and what we've been looking at with Plaintiff's Exhibit 5 was the older one that was actually written in quick basic; correct? THE COURT: I wasn't misled. BY MR. KITCHEN: Q Is that correct? A I was just typing in the commands you told me to type in. The disk that you put in now - - Q Well, let me ask you about Plaintiff's 5. Plaintiff's 5, PDSI004 had the program that you wrote in quick basic, right? A Yes, it did. Q Now, I put in Plaintiff's 7, PDSI004-l, and can you tell me what program is on here in terms of the Night Dot EXE? A Not directly. This disk right here, PDSI6 is the one that Richard published at the time. That's the physical - - same thing as this. This one was probably after I left and I believe this has significant changes. I'm not sure what's going to happen on that one. Q Oh, Okay. THE COURT: What number are you working on now? MR. KITCHEN: Well, I have some confusion. So, I'm going to take out 7 that I had in there and I'll go ahead and put in 6, Plaintiff's 6, because this has on it your Night Dot EXE Program that you wrote in the C language, correct? THE WITNESS: Yes, it does. BY MR. KITCHEN: Q And let's fire it up and make sure that that's the one that we're talking about Okay. And this is the one - - in fact it says up in the right-hand corner, Version 2.073l - - excuse me l. 2.073l and then beta, right? A Yes, it does. THE COURT: The flashing yellow light cautions, lights out? You can't work it. It needs corrections or something? THE WITNESS: That's correct. And this is very much different. I wish we could print this out and print the Pier out That doesn't look nothing like what we just looked at. I'll print that other one. It's totally different. BY MR. KITCHEN: Q Different from which? A From the appearance. Q Different from which? A The Pier One. Q From the Pier One? A Yes. Q All right. Okay. We have three columns of categories here, right? A Yes, you do. Q And the difference is,is we don't have category numbers? That's probably the most significant difference; isn't it? A It looks very different and its function is different to the user and I wrote a different program to produce the results. Q They're functionally different because you don't - - A There's an internal difference also. Q Okay. But we're looking at what the user sees right now. The big functional difference is you don't enter category numbers, instead - - on the other one - - on the Pier One, you scroll the bar. That was a significant difference, right? A Yes. Q And this one you've got to enter the category number, right? A Yes. Q Okay. Let's put in Category 28 and take a look at the Gif. Okay. Now, this screen looks - - A Significantly different. Q From Pier One? A That's correct. Q But doesn't this screen look almost exactly like the screen that was in the Plaintiff's Exhibit 5, PDSI004 which had your program on it but it was a program written in quick basic, right? A That's correct. Q Okay. A I wrote both the programs so they're still going to look like me. Q Okay. Let's select this thing and what happens if we hit enter on this one? Okay. Now, this opens up a box in the middle with some options in it, right? A It does. Q Okay. By the way, let me ask you something: The first line says, "The highlighted file is LIST l" - - THE COURT: No, not LS, that's a bracket. You keep reading brackets for letters. MR. KITCHEN: I see. My eyes to, Judge. Okay. BY MR. KITCHEN: Q Is lST underline, l.Gif. And that's the picture we're supposedly to be seeing, right? A Yes. Q Okay. And underneath it, the next line says, "The directory area is 028A". Is that the directory that that picture file is in? A That is. Q Okay. THE COURT: That then relates to the category number, 28? THE WITNESS: It relates, yes, Your Honor. BY MR. KITCHEN: Q Where does the program get that 028A? A Can you say that again, please? Q Where does the program get that 028A from? A Did you say where the A program or where - - Q No. Where does this program - - THE COURT: Where does it get it? BY MR. KITCHEN: Q Yes. Where does it get that number? A From the text file, DIR 28. Q Okay. A It's a line that says location of file, space, 28A. Q Well, we know that this whole list of files on blue that's behind this was written by, you know, Mr. Graham or whoever would put together the list of files and stuff like that. A Uh-huh. Q Okay. Is there something in that text file that tells your program that the location or the directory area is 028A? A There'd be a three-minute answer. Q A three minute answer. Well, it shouldn't - - THE COURT: Last time your three-minute answer ran six. MR. KITCHEN: Yes. So I'm a little afraid to get in that. BY MR. KITCHEN: Q But can't you answer that yes or no? Is there a place on the text file that it gets that 028A? A Yes. Q And where is the 028A on that text file? A That's on the second line. Q Okay. Is that the line that says "Location of files"? A That is. Q Okay. And as a matter of fact then, even though we can't see the second line on this text file because it's covered up with other stuff, that second line would read, "Location of File 028A"? A That's correct. Q So, does that mean that when you wrote the program you wrote it to go looking for that line, location of files, and then read out the number after it? A That is correct. Q Okay. And then you use that number when you're trying to actually locate the files, right? A That is correct. Q Okay. Did you do the same thing on the Pier One? A No, I didn't. Q You didn't. Well, you still need to find out where the files are even on your Pier One, right? A That is correct. Q Okay. So, you must have the location of files written somewhere on those text files, right? A That is incorrect. Q Oh!. So, in other words, the program doesn't necessarily know where the text - - from the text file, where the location of the file is? A That is correct. Q Okay. How does the program that's running on Pier One find the location of the file it's looking for? A Three-minute answer. Q Thank you, but short - - A Okay. I write utilities to access and handle information on the hard drive or intermedia. It could be hard drive or floppy drive. Q Okay. A It doesn't matter what - - Q Excuse me, excuse me. One of the reasons that this is going to run six minutes - - A I said three minutes. I won't go over. Q Is because you kind of give us big expansive things about how you do stuff. THE COURT: Well let him go. MR. KITCHEN: Okay. THE COURT: You're certainly not helping by stopping him. THE WITNESS: If you bring me a disk and say, Larry, I got a program on this disk I want to get it off, I would go into that disk, I'll type the R and look all around to see what's there. According to what you have on that disk, what you have on that disk, I'll just write a little module and put it in to go and search your disk, your personal disk, and use that utility to bring it up. On Richard's disk, he gave me a disk that had some text files on them. I looked at those disks and decided to use PC board's format and I saw a string that said "Location of files" and I decided to use that to locate the files on the disk because it did correspond with what was on the disk. And you asked me whether I do on Greg's disk and I - - BY MR. KITCHEN: Q That's really the question. You kind of retold us a little bit of what you did with Richard's, but what about Greg's? A I looked at the area, the files that's on Greg's disk which identifies a PC board. I didn't actually add anything. I just looked at the files. I know which number by PC board's format, which number. If that's a category and it's all on his BBS, on his hard drive. There's a category that's in the area of P One, Pier One. He has a P, to represent P, on all his directories. I would just associate that with the corresponding sub directory, P One, because that's the name of that text file. Just the name of the text file in general. It has nothing to do with that location of files. I happened to use that because it happened to be there for that specific customer. It was there, so I used it. If it were not there I would not have used it. THE COURT: That was two minutes. BY MR. KITCHEN: Q But that line, location of files with a number after it is also on the text files on Greg's disk; isn't it? A No, it's not. Q It's not? A No, it's not. Q All right. We'll have to remember that and go back and take a look. I don't want to switch disks at this point because we're right in the middle of this one. Okay. We're looking at the highlight screen, the box and the various options. Could you - - what is it going to take to view the picture at this point? A It would take a few steps, a few command steps. Q Anything obvious there on the screen? There's a V for view, is that going to help us? A That view corresponds with view on the zip file. Q So it's not going to help us? The answer is, yes, it's not going to help us? A Right, it's not. Q Okay. I don't want to waste time on this thing. Do we have to extract first? A It's not there on the menu. It's totally not there for the user. Q All right. Okay. So, again then, your program which does this much more automatically is an improvement and a significant change? A It's in the code, not used - - it's in the code - - Q You're not addressing my question here. A Okay. Q My question is: The change you made on Greg's disk which allows you to do it automatically is really a significant change? A I didn't make a change on Greg's disk. It was a new one. It wasn't a change, it was new. Q Now, look, let's get something straight here. When I talk about change - - A You mean difference? Q Difference, yes. A Okay. Q All right. Was that a significant difference then? A No, it wasn't significantly different. Q But from the user's standpoint you don't think it's significantly different to be able to view the file the way you do, or excuse me, to view a Gif picture the way you do on Greg's disk than it is from what you have to do to view it on this disk? A Well, for the user if he wants to view files, yes, I would consider it significant for the user, yes. Q All right. Okay. A I thought you meant from a program's perspective? Q No, not from a program's perspective. I mean we don't have the source code for Plaintiff's 57, the Pier One Shareware disk; do we? A I beg your pardon? Q We don't have the source code for that? A No, you don't. Q That hasn't been a part of this lawsuit, has it? A No, it hasn't. Q Do you have the source code for that? A I'm a programmer. Q Are you a programmer? A I am the programmer. Q You are the programmer? Do you have the source code for it? A Yes, I do. Q Okay. And it's in your possession, right? A Yes, it is. Q Okay. And you haven't brought it into this courtroom; have you? A No, I haven't. Q Is that something that you'd like to do? MR. OSTROWSKI: Objection. THE COURT: What's the objection? MR. OSTROWSKI: Well, Mr. Kitchen has failed to subpoena something and now he's badgering my witness about litigation strategy. It's absurd. THE COURT: Well, he can ask the question. I don't know. If I were he, I'd say, I don't know. Being advised by my attorney - - MR. KITCHEN: Here's one of the things we're faced with here is, what we have is not only a possible additional infringement on the part of Mr. Graham by the publishing of the Pier One EXE Program on the Pier One Shareware disk. But also we have a possible contempt of court for violating the court order. Now, if he's going to deny that he's in violation of that and deny the infringement on that part by saying that, essentially, the programming is significantly different, then it would be appropriate if we could see the source code of this new program that's on the Pier One disk, which so far hasn't been part of the lawsuit, as yet. MR. OSTROWSKI: Well, you have the burden of proving that. It's your case. You have the burden of bringing that evidence in. It's not any burden on my part. THE COURT: You mean he should ask me to tell the Defendant to bring it in? Is that what you're suggesting, Mr. Ostrowski? MR. OSTROWSKI: I'm suggesting that's his option. MR. KITCHEN: Well, it is an option, Your Honor, and it's one that I approach with trepidation. I mean we talk about burden in the legal sense. The trial has already been kind of a burden for everybody and I - - THE COURT: Well, it's certainly your burden to show that he was in contempt of the Court's Order. MR. KITCHEN: That is true. And that, in fact, may be a separate distinct proceeding from the proceeding that we're carrying on in trial right now. THE COURT: But you have brought it into it; haven't you? MR. KITCHEN: Well I have brought it into it, Your Honor. And I guess what I'm hesitant to do is to expand the lawsuit beyond its rather considerably sized boundaries. But if Mr. - - well, Mr. James here kind of continually refers to the significant changes as being something that's really only detectable as a programmer could detect them. By examining the code and seeing if he wrote them differently or not, which maybe he did. THE COURT: Bottom line is you want him to bring it in or do you not? MR. KITCHEN: Well, I think it would be better if he did bring it in, yes. THE COURT: You want him to bring it in? MR. KITCHEN: Yes, I do want him to bring it in. THE COURT: All right. Do you have objection to that, Mr.Ostrowski? MR. OSTROWSKI: No, I do not. THE COURT: All right. In our next session which will probably be Wednesday, I guess, you'll have to bring it in. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q Okay. Could you do what you have to do to show this Gif file here, or Hubbell Telescope. You have dropped down to DOS and started up the compu show file - - excuse me the compu show program that was over in the unzipped directory? A Yes. Q Okay. And it was something that was already on this computer, right? A Yes. Q Okay. And we're waiting our fifteen seconds. You're moving around what appears to be a menu of sorts and now a list of the files, okay? Well, it doesn't look like the Hubbell Space Telescopes, but it is a very nice picture of a gold ring with a diamond. THE COURT: Several diamonds. MR. KITCHEN: Yes. I think that's a Marquis cut; isn't that? THE COURT: It looks like it. MR. OSTROWSKI: Isn't that Mr. Graham's ring? MR. KITCHEN: Pardon me? MR. OSTROWSKI: Isn't that Mr. Graham's ring? BY MR. KITCHEN: Q Okay. Well, we've demonstrated that it can be done but it obviously required some more key strokes to do it than it did with your program on the Pier Shareware disk, right? A I already told you that. Q And that's a significant difference, right? Not a change, difference? A Yes. Q All right. Let's back out of this. THE COURT: Now, who is this animal, Canyon State Systems and Softwares, Sedona, Arizona? THE WITNESS: That's the credits for the person that wrote that program, C Show, his copyright notice and credits. BY MR. KITCHEN: Q Now, we didn't see this credit and all that sort of thing when you brought your picture up on the Pier One disk; did we? A That's because of the primary list, the professional primary list that was included in the programming code. Q And when you say parameter list that's some special codes that you sent onto the C Show or the compu show program, right? A That is correct. Q And it allowed you to by-pass a lot of junk to get into C Show and to get out of C Show, right? A Are you planning on using those concepts to develop your product? Q Well, unlike Mr. Constantino, I do not have ambitions to publish a CD ROM disk as an adjunct to my law profession, but why is that significant? A The questions that you ask, you keep asking me how am I doing these things. And it really sounds like you're trying to improve on those other ones that went in the wrong direction of my guidance. Q All right. We're back out again. Let me just put 57 back in. And I'd like to look at one thing. Could you show us the directory just using DOS and show us what files are on the root directory of the Exhibit 57? THE COURT: Pier One, Sl; is that a variation or a version? THE WITNESS: Yes, it's Pier One, Shareware l. THE COURT: Oh, I see. You said 57 files, 98,000 some bites and then 0 bites free. What happened to all the rest of the bites? The capacity? THE WITNESS: On the CD ROM drive it's round for read only. It's not available to write to it and that's the results. THE COURT: That means no bites free for inserting anymore material? THE WITNESS: That's right, Your Honor. BY MR. KITCHEN: Q Let's start this up again, the program. Okay. Well, let's go into one of these categories; anyone is fine. And can you shell out the DOS from here? Okay. Is there a particular part of the hard drive that this program is using right now? A Yes. Q Okay. What part is it; what directory is the names? Is it called Pier One? A Yes. Q Okay. Let's move over to that directory. Well, let's do a DIR and see what's in it. Now, we've got some files there already, even though we haven't unzipped anything or stuff like that. We have a Pier One BAK. What's that? I mean, do you know? I mean, after all, you designed this thing. A Yes. Q Can you just tell us what that is? A Yes. Q What is it? A It's a backup for that configuration file. Q Oh, okay. And we know that the configuration file is the stuff that you enter in when it installs, right? A Yes. Q Okay. A It does have some residue from the previous program. We didn't write it from fresh. Maybe we should write it from just, just write it from fresh. Q What previous program would you be talking about? A The Night Owl. We just finished running the Night Owl program. Q That's true. But we didn't put anything here on the Pier - - A Yes, I did copy files there. If you want to see a true representation - - THE COURT: Let me interrupt. You've got sixty-eight hundred bites used and fifty-three million available. That means you're on what? Is that free on the hard drive? MR. KITCHEN: Hard drive, Your Honor. THE COURT: I see. THE WITNESS: We ran the Night Owl as CD ROM program and there's residue from the Night Owl program. THE COURT: Well, I just wondered, okay. I thought that would indicate that you weren't - - you can't write on the CD ROM. THE WITNESS: That's a hard drive. THE COURT: Yes. BY MR. KITCHEN: Q But we do have three files that are right here and they don't have anything to do with the Night Owl; do they? A They probably do. I copied the files from the Night Owl when we were talking about the other program. Q Yes. But that Pier One BAK, that doesn't have anything to do with the Night Owl; does it? A All those programs in there may have something to do with the Night Owl. If we ran this program - - A Now, really, Mr. James - - THE COURT: What are these '95 dates in here? MR. KITCHEN: We probably have the same glitch on the clock, Your Honor or some of this was written at the time the glitch was in, that's all. BY MR. KITCHEN: Q But doesn't your program create that Pier One BAK when you - - A No, it doesn't. Q It doesn't. Well, does it create a file called DIR USR? A Yes, it does. Q When does it create that? A During the search. Q Oh. And we, essentially, did a search, right? A Yes. Q We did a search because we named a category and moved over to the file, right? A No. Q Okay. When did we do the search? A Well, actually - - Q Wait, wait, wait, before you change anything - - A None of those files - - those files are there, Richard ran his program early yesterday. Richard ran his programs. His Honor recognized all those things. Those files were not created today. If you want to demonstrate something, why can't we demonstrate it by running today? Whatever you want to demonstrate - - now, I'll go to the C drive. Now all these files - - see the dates, everything will refer to today. Q Of course today is Friday the 5th, right? A Yes. Q You have a feature down at the bottom there called search; what does that do? A It allows you to search the hard - - the CD ROM drive. Q Okay. Let's do one of those. Excuse me, excuse me. You didn't hit "S" for search; did you? A Yes, I did. Q What was all that stuff? A Should I show you? Q Well, let's start over again here. A I hit "D" by mistake. I typed "X". I hit "D" by mistake, because see how the D and the X are together with each other. Q All right. I've got you now. Okay. Let's do one of these searches now. And what would we search for? The string would be what; the name of a program or anything in one of those descriptions? A It can be anything. Q Okay. Well, how about - - let's put in Hubbell. THE COURT: Which means it's looking through particular files? THE WITNESS: Yes, that's the area for the contracts that I was looking for. Where did you get that from? MR. KITCHEN: Well, because we've been looking at the Hubbell Space Telescope on these other Gif files. THE COURT: What's this little propeller here? THE WITNESS: That's an indication that the system is alive. THE COURT: I see. Sometimes it's just a flashing underscore and sometimes - - it's something to show that it's going. MR. KITCHEN: Is that like a cursor? THE WITNESS: No. MR. KITCHEN: Okay. THE COURT: You've got something moving down here also or had you? It went up to a hundred percent. BY MR. KITCHEN: Q It says press any key, so let's just press that. All right. Let's go over to - - let's drop to DOS at this point and let's check out that work area again at this time. Well, there's that file, DIR.USR. A Yes. Q When was that created? A Just now. Q And why was it created? A Beg your pardon? Q Why was it created? A It was created to generate a search. Q Okay. Well, let's see the contents of that. It will be typed with more, right? THE COURT: It doesn't like what you're doing. BY MR. KITCHEN: Q Now, that's a directory of all the files that it found? A Yes, it is. Q Now, look on the second line of that file. A Yes. Q Doesn't that say location of files? A It does. Q What's that for? A It has no significant value. That's why it has those zeros there. Q But your program is designed to write this DIR.USR file, right? A That's correct. Q And so you had it write it and put in that line that says location of files 0000, right? A That's correct. Q Now, is that a left-over, essentially, from the file, from the program that you had provided to Richard? A Say that again? Q Is that a left-over, essentially? I mean is that something that was left-over from one of the modules that was in the program that you provided to Richard? A Yes. Q Okay. A It has no significance, of course. Q It doesn't have any significance now? A That is correct. Q But it did have significance then? A That is correct. Q All right. A There may be a few things. I mean that's some commonology. Like I say, I didn't throw my libraries out the window, I just wrote another program. Q Some of them you carried right over? A Including C plus, plus. Q Now - - A There's no sub directory 000 anywhere on this CD-ROM disk or the hard drive, Q Okay. Well, in any event, I think we're through here for the time being. So it would be all right if we went back up to the witness box, if that's all right? It's your testimony that you used the C language to do the program that appears on PDSI004-l, right? A That is correct. Q Okay. And what did you use to compile that into an executable program? A Boil and C plus plus. Q And where did you get Boil and C plus plus? A From one of my customers. Q Okay. Which customer? A Larry Bicknell. Q Larry Bicknell? A Yes. Q Okay. Would you spell that last name? A B-i-c-k-n-e-l-l. Q Okay, Bicknell. B-i-c-k-n-e-l-l? A Yes. Q Mr. Graham actually bought Boil and C plus plus for you, correct; for you to use? A Beg your pardon? Q Did Mr. Graham purchase the Boil and C plus plus program for you to use in programming? A He gave me a gift of a package that I had already been using. Q He gave you a what? A A gift of a package that I had already been using. Q When did he give you that gift? A Probably around August. Q Of l99l? A Yes. Q This would have been after you would have, essentially, delivered the C program? A Absolutely. Q So, you didn't use that product at all in compiling anything for - - A No, I never did use the product that Richard gave me. I never did use it. Q Okay. And did you give the product back? A Yes, I did. Q When? A Richard started acting funny - - Q No, no. I mean, when in time? A Like a couple of weeks after he started acting funny trying to steal my program. I wanted to make sure that he knew - - Q Well, you know, just a couple of weeks later then? A Yeah, a couple of weeks later. Q Were you the registered owner of that program? A No. Q Who was the registered owner? A Neil Bicknell. Q Well - - A I mean Larry Bicknell. Q All right. Who was the registered owner of the one that Richard gave to you? A Richard gave me the program. I would feel that I was the registered owner. Q Now, how does one register ownership when they buy a program? A I never filed the papers. Q All right. Is that what somebody does when they normally buy a program? A A lot of people - - I think less people do it than - Q What's the proper way when you buy a program? We go into compu store or something and we pick a program off the shelf and we slap down the $89.95 and we walk out with it, open up the box. How are we supposed to register? A There's a registration included and I don't know very many people that fill those out. Q You mean like written forms? A There are registration forms, yes. Q Okay. So are you saying that even though that's the proper way to do it, you usually don't bother? A Absolutely. Q Okay. And that that's common, right? A Absolutely. Q All right. You just use the thing, okay. And you don't bother with the registration? A Right. Q And as a matter of fact, when you got PC board that we talked about earlier, you didn't bother to register with that, either, did you? A That's incorrect. Q Oh, but you did? You did register? A That's correct. Q Even though you don't normally do that? A That is correct. Q Well, why did you register on that one since that's not what people normally do and it's not what you normally do? A I bought that package for one of my nephews. I was running a different computer system. I was running a Model 4 computer. I bought an IBM computer for my nephew who, because - - there were so many games available in that. He wanted to mimic me, so I bought the package for him. I don't use a register package. He registered his. It's registered in his name. And that's why Richard made a mistake. He thought I registered it. And he called them because he didn't see my name. Q So when you received that message on your system from Clark Development Company that said if you're not registered you have to be or words to that effect or whatever they did say, you said that the next day you called them and you gave them the registration information, right? A That is correct. That's what I said. Q And the registration information you gave them, though, was not that you, Larry James, were the registered owner of the program, was it? A That's correct. Another member of my household, it was registered to him. Q Okay. So you told them that it was registered in somebody else's name? A I have them the registration information, yes. Q Okay. So if somebody, and whether it was Richard Graham or anybody else, promoted some rumor or made some claim that Larry James was not a registered owner of PC board, that really wasn't a lie, was it? A I - - Q It really wasn't a lie, was it, technically? A That wasn't what they said. Q Yes or no? A That would not have been a lie. That would not have been a lie. That wasn't what - - THE COURT: Wait a minute, please, one at a time? BY MR. KITCHEN: Q Okay. That's all I'm asking. That's all I'm asking. What's your nephew's name, by the way? A (No response) Q Your nephew; what's his name? The registered owner? A Alan Harris. Q Alan Harris. And he is the registered owner of the PC board that's running on your BBS? A No. Q He isn't? Well, did there come a time when he stopped being the registered owner? A Yes. Q When was that? A During the time when Richard caused all those problems. Q Okay. So, in other words, not only did you convey to Clark Development Company the information that somebody in your household specifically, you say, Richard Harris? A Alan. Q Alan Harris. Was the registered owner and he was in your home and everything, but you what; changed the registration as well? A Yes, I did. Q How did you change the registration? A I gave them the information and told them that I would be running it, that my nephew had been running the board and I never bought it to register it. I gave them the whole story and changed the physical name. It was - - Q Now, getting back to the which programming language you used. You used the C plus plus, but it was a friend's C plus plus and that's what you used to compile it? A That is correct. Q Did you own any C language compiler yourself? A Yes. Q What did you own? A I owned two C compilers. I own a C compiler for the Model 4, a C compiler for the Co Co, the Tandy Color Computer. Q Okay. But how about for the regular IBM? Do you own a C compiler? A One of my students, Larry Bicknell, we got that package together and we do programs together. Q Okay. So - - A He's one of my students. Q You previously said that Larry Bicknell was the one who had the C plus plus, the Boylan C plus plus program and that's what you used to compile? A There's a story behind that. Q I can imagine there is. But - - and now it's your testimony that it is you and Larry who own the C plus plus Boylan program yourself, together? A Yes. I was using a Shareware program. I was using Shareware program to see - - I wasn't using a Boylan package and I was teaching one of my customer's sons, a fifteen-year old kid, a program, and his father bought him a three thousand dollar computer from me. And while I was teaching him the program, using that Shareware program, his father was so impressed with the way he was learning, during December, the last part of December in '90, during the time that where I mentioned to you, he bought his son, a Boylan C plus plus, the Boylan package so that we didn't have to use the Shareware program. And I continued teaching him with that package. And, yes, I had the program a long time before Richard had the program. I didn't have the documentation. I logged into compu serve, as compu serve, support people from Boylan and I asked them to mail me a second copy, a Boylan C package, the documentation, and their text report responded to me that - - I told them that me and Larry - - Leo Bicknell, the son - - THE COURT: Leo or Larry? Leo is the son? THE WITNESS: Leo is the son. Larry is the father. That Leo and I were using the same copy of Boylan C plus plus and I asked them if they would send another package, we were working on a project together, another set of manuals. And their response was that as long as he and I did not program at the same time, we were not violating the copyright. We could use the same copy on different computers, but because we won't be using it at the same time, we only - - they didn't see a reason to send a second set of documentations. I mentioned that to Richard and Richard bought me a package. And the only thing that he gave me at that time was the documentation. And I had those documentations maybe for about two or three weeks and gave them back to him. BY MR. KITCHEN: Q So, he never gave you the program, itself? A The physical disk never left Richard's house. Q The answer to that then is, no, he never gave me the program, itself, is that correct? A He gave me the program. He gave me the box, but I - Q So the answer is he did give you the program? A I never took it from his house. I left them there. He gave them - - the only thing I wanted was the books. I was so excited about the books, I just grabbed the books and went and started reading them. Q But you didn't need the programs because you had Mr. Bicknell's program? A That is correct, yes. Q All right. Did Mr. Bicknell register, do you know? A I really don't know. I'd probably be surprised if he did send in the registration card, because very few people do. Q Right. A I can get you the distribution disk. MR. KITCHEN: Judge, did you indicate that you wanted to break at this point? THE COURT: I'm going to indicate when my clock goes off that we're going to stop for the day at l2:55 due to a special request from our Court Reporter. BY MR. KITCHEN: Q Now, when this thing about getting the program or Larry or Leo Bicknell getting the program. When did that occur? A He bought the package for his son around the last part of December, the first part of January, '90, somewhere around there. Q '90? A Yes. Q Okay. And this would have been about three or four months before your contact with Richard about the idea of doing a retrieval, right? A Yes. Q Okay. And were you using it, the Boylan C plus plus program, Mr. Bicknell's, for actually doing some programming and compiling? A That's correct. Q And you used that for the writing and compiling of the C Program that you gave Richard in July of l99l? A That is correct. Q Okay. You didn't use any other compiler, or C program compiler for that program; did you? A That is incorrect. Q That's incorrect. You did use another compiler? A I did use other compilers. Q Well, so then you used several or more than one compiler to compile the program that you gave to Richard in July of '9l? A Yes. Q Okay. How many different ones did you use? A About four or five. Q Four or five. Where did you get the other ones other than the one Mr. Bicknell owned? A Off my BBS, it's a Shareware program. There are a lot of Shareware compilers. Q Okay. And which compiler did you finally use to compile the one that you gave to Richard? A The package that I got from Leo Bicknell. Q Okay. So that one was at least compiled using the Boylan C plus plus program? A Yes. Q So the compiling that you did before that - - or excuse me - - the compiling that you did on these three, four, five other programs, those other compilers they were used then previously to that, right? A Beg your pardon? Q They were used before that? I mean, the final version went on the C plus plus Boylan C plus plus, right? A Yes, it did. Q Okay. Now, do all these little Shareware programs, do they come with that same bunch of libraries that we see in that block that include block on the first page? They all include the same stuff, huh? A That's correct. Q Okay. Well, what's special about Boylan C plus plus? I mean what's the plus plus for? A You want to know something? The person that was programming for taking my code out, remarked to Richard and everybody involved that, well, this is not even in plus plus. You know, I really don't program in plus plus. I don't use a plus plus features. I just use the standard Answer C. And the reason that I do is because I want it to be compatible with all my programs. I've changed computers so many times from the color computer to the Tandy computer to, now IBM, and now I'm in the process of going to the UNEX machine. I expect to be working on main frames. I won't compat it - - Q Let's go back to the question I asked which was what does the plus plus stand for? A It stands for some features, you know, some new features of using streams and things. I really don't use that so, you know, you can ask a lot of questions about it, you can read books to study about it, but it's not included in the program. No, that plus plus is not included in the program its on that Night Owl disk. Q Now, did you have a copy of this Boylan C plus plus on your computer at home? A Yes. Q And did there come a time when you stopped using the other compilers and started exclusively using the C plus plus one? A Yes, in January. THE COURT: January, '93? THE WITNESS: '9l. BY MR. KITCHEN: Q January, '9l. So, actually, these other compilers didn't really play a factor in any part of the actual programming of this particular program that you gave to Richard in July then, right? A You know, it's a concept. You don't understand about compiling. It's a source. You write the source, with an editor; you just type in the source. You can write it with Q, DOS, edit, anything. It doesn't matter - - Q Well, I'm not so sure that I don't understand it, because essentially, the source code and we've seen source code now in this trial - - A Yes. Q That's really kind of a big, long text file; isn't it? A That's correct. Q Okay. But when you take that text of screwy symbols and funny spaces and stuff like that and you feed it into the compiler program the compiler program changes all that into some machine readable code, right? A Right. Q That's what the compiler does? A And they all work the same. Q Okay. But, I guess what I'm asking, though, is that since you began using the C plus plus program in January of l99l, you pretty much quit using the other compilers and used the C plus plus because you had it on your machine, right? A Yes. The program that was published on the disk that I used for Richard - - Q Yes - - A - - was used for the compiling. Of course, it was used of Boylan's C plus plus, but it was used months before Richard, you know, had purchased that package he had. So it didn't have anything to do with the package that Richard had, but it was Boylan C. The only common - Q Look, look, look, I understand. You're kind of anticipating where I'm going and I'm not necessarily going there. I just want to establish that what you did, that you did your compiling of Richard's program using the C plus plus and it was the one that you got from your friend or your student, right? A That's correct. Q Okay. Is there any reason you testified differently about this at the hearing that we had in December of '9l? A I don't recall testifying different. Q Okay. Let me just - - referring to Plaintiff's 30, at Page 239, directing your attention to Line 8 - - or excuse me - - Line 9. The question was, "Well, you can't compile a program in C plus plus, correct?" And do you recall your answer? A Say that again? Q On Line 9, on Page 239 the question was, "Well, you can't compile a program in C plus plus, correct?" And your answer was, "That's correct." Isn't that what you said? A That's correct. Q Okay. And was that truthful when you said that? A There's a couple of statements that was made before that. I was referring to the whole sequence of what you were saying, not just to that last thing. Q Well, this is a pretty direct question. It says, "Well, you can't compile a program in C plus plus, correct" and your answer was, "That's correct." And you just said that that was what you did answer. You're saying that that is not the answer that is in response to the question that was asked? A I was making a reference that - - THE COURT: Wait a minute. His question is did you give that answer? THE WITNESS: I gave that answer. THE COURT: All right. THE WITNESS: It was to the question - - THE COURT: Wait for another question. BY MR. KITCHEN: Q But you really didn't mean that answer in response to that question? A I said, I can't, Larry James cannot compile the program C plus plus because I don't program in C plus plus. That's a correct answer. I cannot compile a program in C plus plus because I don't. THE COURT: Now, just prior to that you said you had never written a program in C plus plus. You didn't say that you can't do it. THE WITNESS: That was what I was referring to. THE COURT: You said I have never written a program in C plus plus. But you meant that you can't. THE WITNESS: I can't because I haven't. I could study to learn it but I just don't and I haven't. THE COURT: Oh. So when you say you can't, the question was, well, you can't compile a program - - THE WITNESS: Larry James can't. THE COURT: Excuse me. It's bad enough when you interrupt Mr. Kitchen but you can't interrupt me, You've got to stop that. The question was, "You can't compile a program in C plus plus, correct?" Answer, "That's correct." Is it your position now that you were saying that you, Larry James, was unable to do it? THE WITNESS: Yes, Your Honor. THE COURT: All right. Not that people, generally, couldn't? THE WITNESS: That is correct, Your Honor. BY MR. KITCHEN: Q You did a certain amount of the work in preparation of that program at Ralph Markwart's house, right? A That is incorrect, totally. Q So you didn't do any work at Ralph Markwart's? A That is correct. Q You didn't do part of it? A None of it. Our compiler has never been on Richard's computer but I did use - - Q No, no, no, no. Ralph Markwart's. A I mean Ralph Markwart's computer. Q Okay. So you didn't do any compiling at Ralph Markwart's - - A Right. I used a Shareware program that had nothing to do with - - Q Wait a minute, please. I'm trying to pin down what happened and what didn't happen. A Okay. Q By asking direct questions. It's your testimony now that you did no compiling at Ralph Markwart's house? A That is correct. Q And no other work on the program at Ralph Markwart's? A That is correct. Q So, basically, Ralph or his computer had nothing to do with the preparation of your program? A Absolutely, one hundred percent. Q All right. Referring again to Plaintiff's 30, Page 238, on Line l2 I asked the question, "Do you have C plus plus, a Boylan C plus plus on your" - - and then, apparently, there was a missing word. Then, "right now?" Would you read the answer that begins on Page l4 - - THE COURT: Line l4. BY MR. KITCHEN: Q Line l4 and let me know if that's what you recall testifying? A I - - Q Do you recall testifying to that? A Yes. Q Was that truthful? A That is truthful. Q Okay. What you said then was, answer, "No, I don't. My program was originally written in small c as opposed to main compiler and while I was writing it, I was writing it over Ralph's house, using the c compiler and I showed the same compiler to Ralph. Richard thought it was written in Boylan C plus plus, but it wasn't." So that was a truthful answer? A When I - - Q Was that a truthful answer? A That's a truthful answer but it's kind of misleading because there are other elements. Q So it was a misleading answer? A No. Your interpretation is misleading. Q All right. Let's go on. Let's go on. Now, your testimony earlier was that you had written all the modules for this thing in C for this Night Dot EXE program long before. I mean, literally, years before and used them in other programs, right? A That's correct. That's basically correct. But I also said that - - Q I know what you also said but I want to pin down specific things. MR. OSTROWSKI: I object to the witness being interrupted. THE COURT: No. He has to answer the questions. You could ask him more questions later and he can respond to it and expand as you see fit to ask him to do. MR. OSTROWSKI: But I think the proper procedure, Your Honor, is to object on the grounds of not responsive instead of simply interrupting the witness. THE COURT: Well, he wasn't interrupting the witness anymore than the witness needs interrupting, because you push the button and these things start to roll out of him. BY MR. KITCHEN: Q You program in more than one language; don't you? A Yes, I do. Q Okay. You're acquainted with some other language, including quick basic, right? A That's correct. Q When did you first learn quick basic? A (No response) Q If you can recall. A Quick basic is basic. Basic was the first language that I learned about nine years ago. Q So, in other words, a lot of the terminology in the quick basic, even though that's a compiled language, is similar to the language used in the basic language? A That's correct. Q And that's an interpretive language, right? A Yes. Q So it was an easy transition from basic to quick basic? A It wasn't a transition, it's the same. Q All right. THE COURT: Quick basic is the same as basic? THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q It's an improvement on it; isn't it? A You can say that. Q Okay. THE COURT: If he says that; do you agree? THE WITNESS: That's correct, Your Honor. BY MR. KITCHEN: Q Have you written programs in quick basic? A Yes, I have. Q Okay. Can you tell us some programs you've written in quick basic? A I wrote modules up from my BBS in quick basic. Q Uh-huh. A A lot of things that I write, they're utilities. I don't really - - Q Well, how about a full-fledged program? A No. Q Okay. Do you - - A Yes. Q Oh, okay. A Tape list. It's a program that allows you to categorize all your tapes. You type tape lists and press enter and it will categorize them. It's written solely in quick basic. Q Your tapes. What are we talking about when we say "tapes"? A Computer tapes. Q Computer tapes like backup tapes? A Yes. Q Okay. And it just what; keeps track of the list of them? A Yes, yes. I write a lot of tools. One day I'm going to compile my tools like you have non-utilities, it's going to be the poly-utilities. Because I have a lot of tools that I have put together. Q And when you say "compile", you mean put together? You don't mean "compile" like we compile a program? A Right. I mean - - Q Okay. A - - categorize? THE COURT: Organize? THE WITNESS: Organize. MR. KITCHEN: Organize, right. BY MR. KITCHEN: Q This quick basic programs and things like this, do you like to program in quick basic rather than C or is one preferable to the other? A I probably prefer to program in C. Q Now, when Richard told you that what he needed was a CD- ROM retrieval program, did you tell him that you had already done all the modules necessary or most all the modules necessary to do such a task in C language? Did you tell him that? A No. But Richard reacted as if he was aware that I had everything. All I had to do is put it together and give it to him. Q This was in April, '9l, when you first got together about the whole thing? A That's correct. Q So somehow he knew that you'd already had all these modules done in C and was ready to go? A Richard didn't know anything about C or anything. He just knew - - Q Well, then how would he have already - - THE COURT: Wait a minute. Let him finish the answer. MR. KITCHEN: Oh, I'm sorry. I'm sorry. THE WITNESS: Richard just knew that if he ever needed a tool or anything that I was, you know, gave him programs to achieve the results, as a friend. BY MR. KITCHEN: Q Well, you never volunteered to him at that point that, gee, I pretty much got a file retrieval system or at least all the modules necessary for it written in C. I've had them for years. You didn't tell him that; did you? A I - - Q Did you? A Yes, I did. Q You did? A I didn't say the language. I just told him that I had - - that's why I went there, to give him a retriever to make his CD-ROM disk friendly. I went there with that whole thing in mind. Q Okay. So you went ahead and you put together your modules and you delivered to him a program that actually worked. It was an improvement over the one that he and Jeff Anderson had put together and was published then on his CD-ROM disk, right? A That's correct. Q Okay. But the program you gave him to was written in quick basic; wasn't it? A Yes, it was. Q Why didn't you just put together the one that you'd already had the modules for in the C language? A No particular reason. Q No particular reason? But you like to program in C better than you program in quick basic, right? Right? A Yes. Q And you already had all those modules necessary, right? A That's correct. Q And you've already testified that you never used anything from the program that Richard and Jeff Anderson had made up, right? A That's correct. Q You started from scratch, right? A That's correct. Q And you, not only when you started from scratch - - but you wrote it in quick basic? Why did you write it in quick basic? A I had utilities - - I have utilities in both quick basic - - I mean basic modules. I have C modules and I have assembly modules. I have assembly language modules. I also have some D base modules. Q Okay. MR. OSTROWSKI: Objection. He asked him why. THE COURT: You're objecting to your witness' answer? MR. OSTROWSKI: I'm objecting to the interruption. THE COURT: Oh. MR. OSTROWSKI: Shouldn't ask why questions if you don't want an answer. THE COURT: You're objecting then to his interrupting Mr. James' answer? MR. OSTROWSKI: Yes, Your Honor. THE COURT: All right. Say so. THE WITNESS: I have modules in a number of different languages. Right now I have all the modules that I need to make the D base, the retriever program that I have provided to Tim LoVallo. I put it in D base. It's in D base right now. All the modules are available in C. I just haven't put them together. I won't use any different modules but just for convenience, I delivered a utility for him to compile all his addresses and phone numbers. I delivered it in D base. Eventually it will be done in C. I just did it for convenience. BY MR. KITCHEN: Q Now, we're getting a little away from the direct question - - A That's the concept. Q Okay. But why did you not deliver the program in C? That was the program that you preferred to program in. You had all the modules done years before to be able to put that thing together. Why didn't you just - - I mean, whether you told Richard ahead of time that you could have done it or not, why didn't you just, you know, appear on his doorstep two weeks later, all those modules put together in C, he'd be happy as a clam; wouldn't he? He liked the idea of it being in C; didn't he? MR. OSTROWSKI: Your Honor, do you allow objections for misstating prior testimony? THE COURT: I would entertain an objection to a long rambling question. Sustained. MR. OSTROWSKI: Well, he's misstating testimony. Mr. James didn't - - THE COURT: Well, I know, plus it's five of and I promised our Court Reporter that we would abandon ship today until 9:00 o'clock on Wednesday the l0th. (Whereupon, at l2:55 P.M., the hearing in the above-entitled matter adjourned to reconvene on Wednesday, November l0th, l993, at 9:00 A.M.) 1221 I N D E X Witness Dir Cross Redir Recr Larry James 1222 Exhibit Identification Evidence