Phoenix CD 5.0/Phoenix-CD 5.0.iso/nightowl.016

Text File | 1994-04-12 | 234KB | 4,281 lines

                              UNITED STATES DISTRICT COURT
                              WESTERN DISTRICT OF NEW YORK

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

         RICHARD E. GRAHAM,                           91-CV-800

                             Plaintiff,
                                                      Buffalo, New York
         -vs-                                         November 23, 1993


         LARRY E. JAMES,

                             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

                        THE COURT: Yes Mr. KITCHEN.
         MR. KITCHEN:  I guess we are ready to proceed.  I understand
         from Mr. Ostrowski that Mr. James has gone to get the print-out
         of the program, the source cut I should say, for the program
         that was used on the Pier l disk, which was of course,
         requested the last time.  And he was directed to bring it in.
         That's why we have Mr. Swanson back in the courtroom here
         because Mr. Swanson being my client's programmer would be able
         to actually make the comparison between the source codes and
         see if there's any similarity.
                        MR. OSTROWSKI:  He left about fifteen minutes
         ago, Your Honor, to go back to my office to - -
                        THE COURT:  He, Mr. James?
                        MR. OSTROWSKI:  Yes, Your Honor.  To print it
         out.  He should be back in a couple of minutes.
                        THE COURT:  Where is your office?
                        MR. OSTROWSKI:  It's just five minutes away,
         Ellicott Square Building.  In the meantime I do have a motion--
                        THE COURT:  Five minutes each way?
                        MR. OSTROWSKI:  Yes.  I do have a motion that,
         perhaps, we could take up.
                        THE COURT:  Sure.
                        MR. OSTROWSKI:  Basically, Your Honor, I'd like
         to - - if I can find my particular rule that I'm working with.
                        Well, pursuant to Rule 2l of the Rules of Civil
         Procedure and also, I believe, Rule l9, I'd like to make a
         motion to add the corporation as a party.  Do you have anything
         that has the name of the corporation on it?
                        THE COURT:  What corporation?
                        MR. OSTROWSKI:  Just a second, Your Honor.  I
         need the - - the testimony has been, Your Honor, that the
         Plaintiff originally filing as a d/b/a has transferred his
         business interest into corporate form under the name of Night
         Owl Publisher, Inc and my motion would be to add the
         corporation as a party.
                        THE COURT:  It's Night Owl Publishing or
         Publisher?
                        MR. OSTROWSKI:  I believe it's Night Owl
         Publisher, Inc.
                        THE COURT:  How are you going to add them as a
         party?
                        MR. OSTROWSKI:  Well, pursuant to Rule 2l, Your
         Honor, the Court - -
                        THE COURT:  As a Third Party Defendant?
                        MR. OSTROWSKI:  I've had some trouble figuring
         out exactly what to call them.  I don't know if they're a third
         party defendant in the traditional sense that they are - - they
         have to pay whatever my client owes to the Plaintiff.  I don't
         think they're that.  But I do believe that in the interest of
         justice under Rule l9 they are an indispensable party to
         determining the rights between the Plaintiff and the Defendant.
         And he's simply turned into a corporation.  And he has - - the
         evidence reflects that fact and Mr. Graham is the corporation.
         He's the president, he's the sole owner.  He is - -
                        THE COURT:  You're going to leave him out
         individually?
                        MR. OSTROWSKI:  No.  I think we should stay in
         individually, Your Honor, and - -
                        THE COURT:  Well, it's a very simple way.  If
         you have any agreement on it, you may stipulate between
         yourself to add a party plaintiff, so you have Mr. Graham
         d/b/a/ and individually and Night Owl Publisher,Inc.  That's if
         you agree.  Otherwise you have to go through the forms and the
         steps.
                        MR. KITCHEN:  Well, I guess my misgivings about
         this, Your Honor, and I think it was Mr. Graham's intention to,
         essentially, incorporate his business, a business he'd carried
         on as a proprietor he incorporated.  And I think - -
                        THE COURT:  I think during this whole period of
         activity or inactivity that it was Mr. Graham d/b/a.  So your
         only problem is if you were able to fasten any liability upon
         the plaintiff, you want somebody that's going to respond and
         hears the corporation rather than Mr. Graham.  That's your
         interest?
                        MR. OSTROWSKI:  Well, I'm also - - we're also
         making a claim for all the subsequent programs being similar
         that have been published in the name of the corporation.  So,
         if I don't have the corporation on the hook then where am I
         with those - -
                        MR. KITCHEN:  That's what I have a problem with
         because the incorporating took place in August of l992.
                        Certainly our position is by the time August of
         l992 came around and Mr. Graham's program that he used as a
         file retrieval system was so far removed from what had been
         previously the point of dispute between the Plaintiff and the
         Defendant here, that it really shouldn't be considered, you
         know, part of this lawsuit.
                        I mean, I realize from Mr. James' standpoint
         that every similarity he notices between his program or what he
         alleges is his program and my client's program, even if it came
         out last week is regarded as a significant similarity which is
         obviously based on some sort of nefarious copying on the part
         of my client.
                        THE COURT:  Is that a tenable or substantive
         part of Mr. James' case?
                        MR. OSTROWSKI:  Yes, Your Honor.  Mr. James,
         himself, yes.  And Mr. Kitchen is arguing the merits of the
         potential lawsuit against the corporation and that's not - -
                        THE COURT:  Well, you have today, tomorrow, the
         next day, you have an ongoing claim against Graham and his
         d/b/a/ and the corporation for any infringement of or taking
         away of Mrs. James' rights.
                        MR. OSTROWSKI:  Yes, Your Honor.
                        MR. KITCHEN:  Well, actually, of course, I
         thought at one point in this litigation we had put a kind of
         theoretical line that had been drawn somewhere after NOPV,
         Version 9, I believe, or something, and I believe that was - -
                        THE COURT:  What do you have in your pleading
         that shows this ongoing damage?  For example, you undoubtedly
         have some claim that if you're successful you want an
         accounting.
                        MR. OSTROWSKI:  Well, I do have a claim, a
         request, the Plaintiff be required to pay to Defendant such
         damages as Plaintiff - -
                        THE COURT:  Accounting.
                        MR. OSTROWSKI:  I'm sorry.  I made - - well, I'm
         certainly asking for damages sustained as the result of the
         Plaintiff's infringement of Defendant's copyright and to
         account for, obviously, I took this from a former, perhaps Mr.
         Kitchen's complaint, all profits derived from the Plaintiff - -
                    THE COURT:  We don't have evidence on this but
         you may or may not want to answer.  I assume you don't care.
         Is Mr. Graham the l00% owner of Night Owl Publisher, Inc.?
                        MR. KITCHEN:  Yes.  He testified to that, Your
         Honor.
                        MR. OSTROWSKI:  Yes, I believe he did testify to
         that.
                        THE COURT:  It's really his alter-ego.  So, why
         don't we bring it down to, if it comes to that, you would have
         a piercing of the veil as far as any liability here, if there
         be any ongoing after the incorporation.
                        MR. OSTROWSKI:  Well, I'm not a corporate
         lawyer, but if in fact he has maintained all the formalities of
         a corporation and if he's not, for example, taking money out of
         the corporate kitty for a family vacation or something like
         that, which I don't think he is, he may very well have an
         argument that they're separate legal entities.
                        THE COURT:  Not if we pierce the veil.
                        MR. OSTROWSKI:  Well, wouldn't that require a
         finding that he's - -
                        THE COURT: That he and the corporation are
         really the same individual that's, basically, what we have
         here.
                        MR. OSTROWSKI:  I'm just trying to cover my
         tracks in the event that there's some flaw in that theory.
                        THE COURT:  However, you know, if you can't get
         some agreement on it then you have to figure out what to do as
         far as getting the corporate party into the lawsuit.  And the
         only straightforward way of doing it is to, since you can't add
         party's plaintiff, is to bring in a third party defendant, the
         corporation.  It's much easier if you can work it out the other
         way without admitting that there's any liability from and after
         August, l992 or on behalf of the corporation, you can certainly
         agree that if there is something that to the corporation, Mr.
         Graham would not assert the corporation shield to keep from
         paying any damages that might be owed.  All right.  Sobeit.
                        MR. OSTROWSKI:  Thank you, Your Honor.
                        MR. KITCHEN:  Your Honor, when Mr. Gentner
         called me yesterday I had indicated to him that I had a couple
         of matters on this morning.  One, I was able to just get
         adjourned altogether, family court matter.  But the other one
         is a matter in front of Judge Kane scheduled for l0:30, which
         is - -
                        THE COURT:  What?
                        MR. KITCHEN:  l0:30, Your Honor.
                        THE COURT:  Who?
                        MR. KITCHEN:  In front of Judge Kane.
                        THE COURT:  What type of a matter?
                        MR. KITCHEN:  It's an incompetency.  It's our
         second appearance.  And there's quite a cast of characters
         expected.  So, I'm - -
                        THE COURT:  So you're on.  And this is a one
         case coming on at that time?
                        MR. KITCHEN:  Yes, Your Honor.  And I'm
         anticipating there's not going to be any testimony.  It's
         simply going to be an appearance by people in acknowledgement
         of - -
                        THE COURT:  How long do you think it'll take?
                        MR. KITCHEN:  Perhaps a half an hour, Your
         Honor.
                        THE COURT:  All right.  We can go forward and as
         soon as you see that you want to break, just raise your hand
         and off you go.
                        MR. KITCHEN:  Thank you.
                        MR. OSTROWSKI:  Your Honor, I do have Mr. James'
         print-out of the program that he gave to Mr. Armenia for use on
         his CD ROM.  However, Mr. James, like Mr. Graham, is concerned
         about the confidentiality of his program and, basically, I
         would ask the Court to instruct the Plaintiff and his attorney
         and his expert witness not to disclose the contents of this
         program until such time as the Court may rule that this program
         is, in fact, similar to Mr. Graham's program, in fact, that Mr.
         Graham is the original author and owner of the program.
                        THE COURT:  Any problem with that, Mr. Kitchen?
                        MR. KITCHEN:  No, I really don't.  In - -
                        THE COURT:  You can make full use of it in and
         for purposes of the trial, keeping it only onto thouself and
         until Mr. Graham - -
                        MR. KITCHEN:  Yeah.  I think until the Court
         makes an appropriate ruling.  I'm not sure that the ruling
         would have to be that the original program was Mr. Graham's.
         The Court may find other reasons - -
                        THE COURT:  No.  I'm just talking about a
         threshold panacea.
                        MR. KITCHEN:  Yes.
                        THE COURT:  Is Mr. Swanson to be - - Professor
         Swanson to be precluded from that or, I mean Mr. Swanson
         precluded from that, also?
                        MR. OSTROWSKI:  I think he included him as one
         of the people that would be bound by that, yes.
                        THE COURT:  Do you, Mr. Swanson, agree to be
         bound by this confidentiality order?
                        MR. SWANSON:  Yes, Your Honor.
                        THE COURT:  All right.  Does this have an
         exhibit number?
                        MR. KITCHEN:  Not yet, Your Honor.
                        THE COURT:    Should it?
                        MR. OSTROWSKI:  Yes. I would think, But it's Mr.
         Kitchen's ballgame, so I'll let him - -
                        THE COURT:  You'll let him mark it.
                        MR. OSTROWSKI:  What number are you up to?
                        MR. KITCHEN:  I understand the last - -
                        THE COURT:  I don't have anything for 63.
         Beyond that the last number I have is 67.  I take it you
         probably have something marked as 63 which hasn't surfaced yet.
                        MR. KITCHEN:  Probably, Your Honor.  Actually,
         you may be ahead of me on that.
                        THE COURT:  68 is - - the last one I have is 67.
                        MR. KITCHEN:  All right.  We'll mark it as 68
         then, Your Honor.
                        THE COURT:  And how do we identify this?
                        MR. KITCHEN:  This would be a source code of a
         print-out of the program - -
                        COURT RECORDER:  Can you use the microphone,
         please?
                        MR. KITCHEN:  Oh, I'm sorry.  The file's data
         base manager, yeah.  The source code for the file's data base
         manager that was, apparently, on the Pier 1 disk.
                        THE COURT:  This is Mr. James?
                        MR. KITCHEN:  Yes sir.
                        THE COURT:  All right.  I guess we were
         somewhere in the process of cross-examining Mr. James.
         WHEREUPON,
                                       LARRY JAMES
         resumed the stand and having been already duly sworn, was
         examined and testified further as follows:
                                    CROSS-EXAMINATION
         BY MR. KITCHEN:
         Q    Mr. James, let me show you 68.  Is this what you brought
         in today?
         A    It is.
         Q    Okay.  And is this a source code of - - a print-out of the
         source code of the file's data base manager that was used on
         the Pier 1 disk?
         A    It is.
         Q    Are there any differences or changes between how this is
         right now and how it was when it went on the Pier 1 disk?
         A    No.
         Q    You indicated that you've driven a cab since l985; is that
         correct?
         A    Yes.
         Q    And did there come a time when you stopped driving a cab?
         A    Off and on.
         Q    Okay.  So, you're still driving one now?
         A    Well, no, I don't drive a cab now.
                        THE COURT:  You do not?
                        THE WITNESS:  I don't.  I haven't driven a cab
         now for a number of - - for a couple of years.
                        MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q    So it would be sometime in l99l when you stopped driving
         a cab?
         A    Well, actually, I guess it was sometime in '92.  It would
         be kind of hard to pinpoint it.  I retained a cab for a long
         time and I didn't drive it.  It was almost like a personal car.
         But I guess it was around the summer of '92 when I gave up the
         cab.
         Q    Was the automobile that you were driving; was it
         registered as a taxi cab?
         A    Yes.
         Q    And - -
                        THE COURT:  While you were driving it for
         personal use did you pick up passengers?  When did you stop
         picking up fares?
                        THE WITNESS:  I guess when I gave up, totally
         gave up the cab about a year ago.  The summer of '92.
                        THE COURT:  That's when you gave up the cab?
                        THE WITNESS:  Yes.
                        THE COURT:  The vehicle, itself?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  There had been a time when you were
         driving it purely for personal business?
                        THE WITNESS:  Yes, Your Honor. Not - - it's kind
         of like - -
                        THE COURT:  But once in awhile you'd have a
         fare?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  I see.  All right.
         BY MR. KITCHEN:
         Q    Why did you give it up?
         A    Actually, it was becoming sort of a security blanket and
         a crutch.  I mean, it was a security blanket.  And it was sort
         of becoming a crutch because I was having to pay about, nearly
         a hundred and fifty dollars a week to retain it.  And, like I
         said, I wasn't really picking up fares regular.
         Q    A hundred and fifty a week for what?
         A    To rent the cab.
                        THE COURT:  Oh you didn't own it?
                        THE WITNESS:  That's correct, Your Honor.
                        THE COURT:  Why was it a security blanket?
                        THE WITNESS:  Because - -
                        THE COURT:  It seems to me it would be a
         liability blanket.  You're paying out money all the time.
                        THE WITNESS:  That's what I was realizing.  It
         was more of a liability than security.
         BY MR. KITCHEN:
         Q    Are you still involved with the Western New York Tandy
         Users Group?
         A    Yes, I am.
         Q    It's still in operation?
         A    Yes, it is.
         Q    How many members does it have now?
         A    We have about fifty paid members and when we have events,
         sometimes there's - - we have a little bit more than a hundred
         that come from time to time.
         Q    You had indicated that the group at one time had about two
         hundred people in it?
         A    Yeah.  Our data base has around two hundred.  And
         sometimes, you know, people bring in their families and things
         like that.  They're all included.
         Q    Well, how many paid members has it had at its peak?
         A    I'd say around a hundred and - - a little bit more than a
         hundred.  But when a person - - a lot of those are household
         memberships.  And everybody in the household is a member.  But
         they're not into the data base as a unique entity, but many
         counsellors are people.
         Q    So the membership has dropped somewhat then?
         A    It continues to drop.  And the reason why is because
         people are not as novice to computers and it's not - - it's
         doesn't have - -
                        THE COURT:  They're more knowing and they don't
         need - -
                        THE WITNESS:  Right.  It was a means of - -
                        THE COURT:  They don't need this crutch?
                        THE WITNESS:  You can say that, Your Honor.
         BY MR. KITCHEN:
         Q    You indicated that you wrote an article regarding windows
         back in l988?
         A    Yes.
         Q    Was windows out at that time?
         A    Yes.  Wait - - if I said - - actually, it was the - - it
         was windows some part of COCO and OS2.  I mean OS9 computer.
         I also did a presentation on this machine.
         Q    Was this MS Dos windows?
         A    No.
         Q    Oh, so this is not the windows that we're normally
         acquainted with in the IBM PC community now?
         A    Well, it's the same basic concept.  To tell the truth I
         was in the process of introducing the new windows - -
         Q    But the article you wrote was not about the MS Dos windows
         that we're acquainted with now?
         A    You can say that.
                        THE COURT:  That it is or is not?
         BY MR. KITCHEN:
         Q    It was about something else?
         A    Yes.
         Q    Okay.  You said that your position in the group was vice-
         president, right?
         A    I was vice-president.
         Q    Okay.  Who nominated you to be vice-president?
         A    Richard Graham.
         Q    Did Richard give any demonstrations or anything at any of
         the meetings?
         A    Not that I recall.  He might have.
         Q    Okay.  Do you recall Richard giving you some help in
         setting up multi-tasking at all?
         A    No.  Richard was a student of mine, has always been a
         student.  He has never - -
         Q    He's never helped you at all with anything in terms of
         giving you any knowledge?
         A    That's correct.
         Q    Okay.  And you've never learned from him, only he has
         learned from you?
         A    That's correct, absolutely.
         Q    All right.  You indicate that you have fifteen hundred
         users on your BBS now?
         A    That is correct.
         Q    Your bulletin board service?
         A    Yes.
         Q    And is that the most you've ever had?
         A    No.
         Q    Okay.  What's the most you've ever had on your BBS?
         A    A couple hundred more than that, around seventeen.
         Q    Okay.  When was that?
         A    A couple of years ago.
         Q    Any particular reason for the reduction in number?
         A    Yes.
         Q    What?
         A    I had a hard drive crash and everybody had to sign in
         again and I believe some of the users felt that they was
         particularly - - some of them probably took the fact that their
         account wasn't on my system, personally, and didn't sign up
         again.
         Q    Okay.  When did that crash occur?
         A    About sixteen, eighteen months ago.
         Q    You had indicated before that you accept donations at your
         bulletin board service and that entitles a person to some VIP
         status?
         A    That's correct.
         Q    And they get more time on the bulletin board service if
         they pay something.  How much do they have to give to be
         entitled to the extra time?
         A    At this particular time, thirty-five dollars a year.
         Q    Now, do you charge any sales tax on any of that?
         A    No, I don't.
         Q    You report that on your income tax?
         A    No, I don't.
         Q    Do you include your bulletin board service as a business
         on your income tax?
         A    At this particular - - no, I don't.  Not at all.  I am in
         the process of designing a business, a communication business
         over the modem.  I'm designing it now.  But at this particular
         time, no, I don't.
         Q    Now, how many VIP members do you have now of the BBS?
         A    I really don't know what this has to do with what you're
         asking me.  And this is personal information.  My system is the
         most popular system in the United States in the world, and I
         really don't want  Richard to gain all this knowledge, personal
         knowledge over my system.  It does not pertain to this.
         Q    Yes.  But we're only asking how many you have as VIP
         sponsors.
         A    I'm going to answer this question but I'm going to start
         giving a lot of resistance to your further questions on this
         because I don't see how this has anything to do with anything.
         I have about sixty paid users.
         Q    And the rest of the fifteen hundred then are just people
         who occasionally log in and don't pay for anything?
         A    It's a free system.
                        THE COURT:  Don't they pay for the time that
         they use it?
                        THE WITNESS:  Your Honor, what they - -
                        THE COURT:  Do they pay for the time that they
         use it?
                        THE WITNESS:  Not money, but they pay with an
         estimation (sic), it's described in my system.  A lot of people
         ask me why do I let so many people call my system and I put all
         that time and stuff into it and they don't have to pay.  What
         happens before I put up my system I used to call compu-serve.
         All the time I billed off of compu-serve was between a hundred
         and two hundred dollars a month, sometime.  Real expensive.
         And to offset that bill I start a system and every individual
         that logs in, you know, there's a requirement. As long as they
         read some of the messages on the system they can have full
         access.  That's the only requirement.  And if I don't read in
         some of the messages, when I have a question or a problem I put
         my question and problem just like anybody else.  And they pay
         by contributing to the support.
                        THE COURT:  Your payment then for their use is
         that you make use of similar systems other people have?
                        THE WITNESS:  Yes, Your Honor, including that.
         I pay for all the input that I - - I mean, they pay by all the
         input I get from all these people.  If someone has a question,
         I don't care what your question is, it can be computer-related,
         it can be something about auto mechanics.  Someone is going to
         probably read that message and respond because if they don't
         read messages, the access is lowered.  The only requirement,
         they read some of the messages.
         BY MR. KITCHEN:
         Q    Well, you have sixty paid users at this thirty-five
         dollars per year rate.  Do you have - - is there any other
         category of user who pays or contributes anything?
         A    As of about thirty days ago, no.  There's only been two
         levels.  There's been a level of VIP and a level of normal
         users.
         Q    You just introduced another level?
         A    I'm in the process of introducing another level, yes.
         Q    Okay.  So you have something like two thousand, one
         hundred dollars per year coming in from your sixty-paid users;
         does that sound about right?
         A    Yes.  And I do put about five, at least five hundred
         dollars a month into the system.  My telephone bill alone is
         about two hundred dollars a month.
         Q    But you don't list anything on your income tax; is that
         correct?
         A    Not related to the hobby, no, I don't.  None whatsoever.
         Q    And you indicated that you don't charge these people any
         sales tax for this?
         A    That's correct.  Not for their donation, no, I don't.
         Q    Are you like a not-for-profit corporation or anything?
         A    No, I'm not.  And I haven't been declaring my hobbies.  I
         don't particularly declare mine in the computer club.  I mean,
         if I pay my dues, I don't declare the dues, no, I don't.
         Q    Are you registered as a charity or anything?
         A    No, I'm not.
         Q    Now, you had testified,also, that you taught Richard
         Graham to read and write; is that correct?
         A    That's correct.
         Q    Did you use any text or that sort of thing to assist him?
         A    Yes, I did.
         Q    What kind of a textbook did you use?
         A    I used a message base on Apollo 3.
         Q    You used the what?
         A    The message base on Apollo 3.
         Q    The message base?
         A    Yes.
         Q    Would you explain what you mean by the message base?
         A    From day one, when Richard started calling my system the
         reason he called me first is because he couldn't gain access.
         That was a requirement of reading some of the messages.  And he
         explained to me that it was a personal problem that he couldn't
         read.
         Q    Well, what is the message based on?
         A    It's the first thing - - one of the menu items that you
         type R and press enter and you can read messages on the system.
         Q    Okay.  Those are messages put on by - -
         A    General users.
         Q    General users.  And they might be writing to anybody in -
         - somebody in particular or anybody who's interested, right?
         A    Anyone who is interested.
         Q    Okay.  And there's different messages posted every day,
         right?
         A    At that particular time it was - - yes, it was - - at that
         time it was in the twenties, about two years ago it was in the
         hundreds every single day.
         Q    Well, then you didn't start with any text that was like
         accompanied with pictures and had sentences like See Dick Run
         or that sort of thing?
         A    No.
         Q    Okay.  You jumped right into the message base?
         A    Yes, I did.
         Q    How long did it take you to teach Mr. Graham how to read
         and write?
         A    The method that I use, it doesn't take long at all.
                        THE COURT:  So I assume this teaching him
         reading and writing is teaching him computer aids and not to
         read and write newspapers or letters or things like that, basic
         English?
                        THE WITNESS:  The level of the message base, I
         would say, is probably about the same level - -
                        THE COURT:  Are you talking about teaching him
         how to read the words from a book or a newspaper and to write
         words in that way or something in computerization?
                        THE WITNESS:  It - - it- -  it was - -
                        THE COURT:  You can't answer that question?
                        THE WITNESS:  Yes, Your Honor.  It was academic.
         Not necessarily computer.  It was a computer aid, but not
         necessarily - -
                        THE COURT:  Not telling him, this is a cow?
                        THE WITNESS:  Oh, I didn't have an association
         with words.
                        THE COURT:  Or how to spell words like rabbit?
         You're weren't teaching him basic English, reading and writing,
         were you?  You were teaching him how to read and do with
         computers; weren't you?
                        THE WITNESS:  When he - -
                        THE COURT:  Can you answer that?
                        THE WITNESS:  Yes, Your Honor, I can.
                        THE COURT:  Okay.  Answer quickly.
                        THE WITNESS:  It wasn't just generally
         computers.  The computer was an aid.  It was an aid, but it was
         just general knowledge.
                        THE COURT:  Teach him how to read?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  A book like this?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  Words?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  He couldn't read words?
                        THE WITNESS:  He had very much trouble reading
         anything.  He told me that his wife read - -
                        THE COURT:  Was he dyslexic?
                        THE WITNESS:  No, he just told me that he never
         learned to read.  His wife always read to him.
                        THE COURT:  I see.  And he couldn't write words,
         either?
                        THE WITNESS:  He couldn't write words.  He could
         write words, but it was very,  very intell - -
                        THE COURT:  Unintelligible?
                        THE WITNESS:  You could read the individual
         words, but the sentence flow and structure, you wouldn't know
         what he was writing.
                        THE COURT:  I see.  All right.
                        THE WITNESS:  Someone else would have to write
         it for him if it was to make any sense.
                        THE COURT:  You were teaching him basic English
         then.  It's l0:l9.  That's three minutes slow.
                        MR. KITCHEN:  Okay.
                        THE COURT:  I'll leave it to you.
                        MR. KITCHEN:  Well, all right.  Thank you, Your
         Honor.
         BY MR. KITCHEN:
         Q    Would you say he was essentially illiterate before you
         taught him how to read and write?
         A    Yes.
         Q    Were you aware of what his educational background was?
         A    Only what he told me.
         Q    What did he tell you?
         A    That he didn't know how to read.  That his wife read to
         him.
         Q    Okay.  He didn't tell you anything about his education?
         A    No, he didn't.
         Q    How far he had gone along in school?
         A    No, he didn't.
         Q    Okay.  Did he know anything about computers before you
         started to teach him how to read and write?
         A    I would say no.  It was hard for him to know as much about
         computers.  He had just bought a Tandy.  He had just bought a
         Tandy.  Very few people know anything about computers before
         they get them.
         Q    When was it that he bought this Tandy?
         A    Around - - I believe it was around '88.
         Q    '88.
         A    I'm not real good on dates.
         Q    And back in '88 is when you taught him then how to read
         and write so he could make use - -
         A    When I started, yes, when I started.
         Q    So he could make use of this Tandy?
         A    No.  Just - - I just taught him to read, just to add to
         his general - -
         Q    Just so he could function in modern American society?
         A    Well, any society.
         Q    In any society?
         A    Yes.
         Q    All right.
                        THE COURT:  And I suppose to read an instruction
         book he'd need to be able to read?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  Did you teach him that?
                        THE WITNESS:  Yes.  I was teaching him to read.
         He was using a computer.  Before then he told me when he needed
         to know something his wife read it to him.  I don't know what
         he did.  All I know is what he told me and he told me he had
         trouble reading and I started giving him concepts of how to
         read using my bulletin board system.
         BY MR. KITCHEN:
         Q    How much time did you spend with him back in l988 when you
         were teaching him how to read and write?
         A    Probably about six hours a day.
         Q    How many days a week?
         A    Sometimes seven days, sometimes three days.  But most
         times, at least three days.
         Q    How many weeks did that go on?
         A    A few months.
         Q    And where did these teaching sessions go on?
         A    At Richard's house.
         Q    Were you employed at the time?
         A    I was driving cab.
         Q    And how did you support yourself while you were taking
         these few months teaching Richard to read and write?
         A    Well, I was really losing a lot of money and losing a
         whole lot of stuff, but, you know, just teaching him to read
         and write wasn't the only thing I was doing.
         Q    So you weren't really able to support yourself very well?
         I take it then he didn't pay you anything for this?
         A    I told you, the things that I share with Richard, I share
         with him as a friend.
                        THE COURT:  Did he pay you anything for your
         teaching him to read and write?
                        THE WITNESS:  Not in monetary.
                        THE COURT:  I see.
         BY MR. KITCHEN:
         Q    Okay.  Did he give you anything?
         A    Yes, he gave me his friendship.
         Q    Okay.  But nothing substantial attached to it?
         A    That's correct.
         Q    Okay.  In l988 can you tell me which months it was that
         this teaching program went on?
         A    No.
         Q    Well, can you ballpark it like the beginning of '88 or the
         end of '88 or the winter or the summer, or that sort of thing?
         A    Well, around that time I recall there was snow on the
         ground a few times, a couple of times when I was at his house
         and I was leaving and my car wouldn't start, he came out and
         helped me to start my car.  He gave me a jump start a few times
         when it wouldn't start.  And it was winter time.
         Q    So this would - - would you guess that it would probably
         be in the beginning of '88?
         A    It was sometime around that time, it was also in the
         winter time.
         Q    Well, the beginning of '88, of course - -
                        THE COURT:  Well, it probably isn't very odd in
         that there's a winter at the beginning at the year and a winter
         at the end of the year.   You aren't able to say which?  Late
         l988 or early l988?
                        THE WITNESS:  It would take a lot of
         concentration for me to try to remember so close and specific
         the times - -
                        THE COURT:  Even within a whole year?
                        THE WITNESS:  That span.  Like it was some where
         around '88 when I met Richard, '87, '88, '89.  It was somewhere
         around that three-year span when I met Richard.
                        THE COURT:  You've got two separate winters
         there.  '87-'88, '88-'89.
                        THE WITNESS:  Your Honor, when I first met
         Richard - - excuse me - - if you ask Richard when I met him,
         that's the time.  I don't remember directly the time.  It may
         have been '87, it may have been '88, it may have been '89.  But
         somewhere - - when I first met Richard, our first relationship
         was he was having academic problems and computer problems and
         I was helping him to overcome all his problems, including his
         academic problems and his computer problems.
                        THE COURT:  What do you mean; was he in school?
         He was having academic problems?
                        THE WITNESS:  I say academic in such that he had
         mentioned to me that he couldn't - - he had problems reading
         and writing.
                        THE COURT:  But he wasn't in school?  He wasn't
         having trouble with classroom work or - -
                        THE WITNESS:  I'm not saying that, Your Honor.
         Yes, Your Honor.
                        MR. KITCHEN:  Your Honor, I see by the old clock
         on the wall it's - - okay.
                        THE COURT:  We'll wait for you to come back.
                        (Recess - l0:27 A.M.)
                        (Resume - ll:l9 A.M.)
                                    CROSS-EXAMINATION
         BY MR. KITCHEN:
         Q    Mr. James, you indicated that you were in a consulting
         business, computer consulting?
         A    Yes.
         Q    And when did you first start doing that?
         A    I started consulting when I first started using computers.
                        THE COURT:  When was that?
                        THE WITNESS:  Around '86, I believe.
         BY MR. KITCHEN:
         Q    When did you start doing it for money?  Consulting for
         money?
         A    Probably around '87, '88.
         Q    Now I understand you have had, I think, fifty clients I
         think you said, something like that?
         A    Yes.
         Q    Is that kind of a lifetime total or is that in the past
         year or how would that be?
         A    That's people that call and communicate with me right now
         as a consultant.  You know, like - -
         Q    That's your current people who, your current client list,
         essentially; is that correct?
         A    Something like that, yes.
         Q    And what did you say you charge per hour for this
         consulting?
         A    Thirty-five dollars.
         Q    Now, do you charge sales tax on the consulting at all?
         A    Yes.
         Q    So you have a sales tax number you report to the state?
         A    Yes, I do.
         Q    And is that the same sales tax numbers you use on your --
         at the flea market?
         A    Yes, it is.
         Q    And you report the consulting fees on your income tax?
         A    Yes, I do.
         Q    Do you report that under the same business in your income
         tax as the flea market sales?
         A    Yes, I do.
         Q    So your consulting is basically kind of an extension of
         your table at the flea market; is that it?
         A    You can say that.
         Q    And was your work for Pier l, was that in the capacity as
         a consultant?
         A    You can say that.
         Q    Did Mr. Armenia pay you sales tax when he paid you for the
         Pier 1?
         A    No, he didn't.
         Q    Is there some reason that that was not something that was
         covered by sales tax?
                        MR. OSTROWSKI:  I object.  That's a legal
         question.
                        MR. KITCHEN:  Well, it might be a legal
         question, Your Honor, whether it was correct or not.
                        THE COURT:  Just rephrase the question.
         BY MR. KITCHEN:
         Q    Why didn't he pay the sales tax?
                        MR. OSTROWSKI:  In fact, I also object on the
         grounds it's irrelevant because I don't believe sales tax are
         owed on a consulting fee.
                        THE COURT: Because what?
                        MR. OSTROWSKI:  I don't - - I have doubts as to
         whether sales tax applies to that type of transaction so I
         object on the grounds of relevance.
                        THE COURT:  You would compare that to legal
         advice and services?
                        MR. KITCHEN:  I think the problem, though, is
         that - -
                        THE COURT:  I mean as far as sales tax
         liabilities are concerned?
                        MR. OSTROWSKI:   I guess I'm just not clear on
         the law in that area, but it does not strike me that one pays
         sales tax on consulting fees, unless Mr. Kitchen wants to
         correct me.
                        MR. KITCHEN:  Well, I don't mean - -
                        MR. OSTROWSKI:  I don't know why he's asking the
         question.
                        MR. KITCHEN:  I don't mean to correct him at
         all.  It's just that this particular witness specifically said
         that he collected sales tax on consulting fees.  And he said
         that this providing the program to Pier l was, essentially, an
         extension of a consulting service and so it seemed appropriate
         then that if he collected the sales tax for the one, he might
         collect it for the other.
                        Not only that, he provided a product to the
         publisher of Pier 1.  So, that might be arguably more - -
                        THE COURT:  All right.  Let's proceed.  He may
         answer.
         BY MR. KITCHEN:
         Q    Any reason - - what reason, you didn't collect sales tax
         from Mr. Armenia?
         A    Because I haven't had a solid situation of the returns.
         I have had a certain amount of downpayments but I haven't had
         received the records that I'm waiting for of a total, you know,
         a total volume of sales and commissions due.  All I have
         received is - - I mean, at this particular point, I have
         received, you know, a certain amount of payments, you know,
         downpayments, you know, for - - because I haven't had a solid
         reference point yet of finite points.
                        The situation is still in the - - the situation
         of remuneration is still in the process.  It's kind of hard for
         me to elaborate on something that is still ongoing.
         Q    How much have you received?
         A    I'll have to tally it up.  Probably somewhere in the realm
         of - - I have to tally it up.
                        THE COURT:  Approximately?
                        THE COURT:  Maybe fifteen hundred.
         BY MR. KITCHEN:
         Q    And were the figures or the account of this sort of thing
         given by Mr. Armenia in his testimony earlier in this trial,
         were they reasonably accurate; as far as you know?
         A    To some degree.  You know, there are - -
         Q    Was there anything inaccurate about it?  Was he telling
         the truth about this?
         A    Well, he was - - he wasn't sure about how much - - he
         didn't say he was sure about exactly how much it was.  And at
         this particular time, I mean, Greg has been kind of busy,and
         I've been kind of busy , I just have not had a lot of time to-
         -
         Q    Did you have a written agreement with Mr. Armenia?
         A    Yes.
         Q    And it specifically provided that you would pay him a
         thousand dollars per version?
         A    Yes.
         Q    And he's issued more than one version of his disk, right?
         A    That's correct.
         Q    So he owes you a thousand for each one of those?
         A    Yes.
         Q    That wasn't what he thought, though?  He thought it was a
         one-time, one thousand dollars and then a dollar a disk, right?
                        MR. OSTROWSKI:  Objection.
                        THE COURT:  What's the objection?
                        MR. OSTROWSKI:  He's asking him what Mr. Armenia
         thought.
         BY MR. KITCHEN:
         Q    Well, did Mr. Armenia tell you what he thought?
         A    We have a written agreement.  Regardless of what he
         thought, he said he was going to go according to the agreement.
         Q    Well, he said - - you heard him testify, though, that he
         was under a different impression for awhile?
         A    Yes, I heard that.
         Q    Okay.  Is that what he told you at the time?
         A    Yes, he did.
         Q    What was his impression?
         A    I'm kind of surprised.  At one time he did tell me that he
         was under the impression that it was just a dollar for every
         disk and when he was getting ready to publish the second one,
         and I reminded him that that was another thousand dollars going
         on account, he told me that he didn't - - he hadn't understood
         that.  And we reread the agreement and the agreement, it was
         worded kind of - -  I guess it was worded by me.  I really felt
         like, you know, I wrote the agreement down because of the
         problems I had here.
         Q    How was it worded?  Well, let me ask you this instead:  Do
         you have a copy of the agreement with you?
         A    I don't have a copy here.
         Q    Okay.  Can you tell us how it was worded?
         A    I agree to pay a thousand dollars for each initial disk
         and a dollar for a disk.
         Q    So he figured he could redo disks and come out with
         different versions and only have to pay that one dollar; is
         that what he thought?
         A    He thought something like.  It seems like when I told him
         a thousand dollars per version or something like that, I think
         he thought that I was saying everytime there was an update, you
         know - - I think his situation was he had not approached me
         about any kind of updates or any kind of, you know, bugs or
         modification or just enhancement.  He hasn't approached me
         about anything.  And I had the impression that the reason he
         didn't, during this particular conversation when he was getting
         ready to cut the second disk, that he thought that if he did an
         update, that he would have to pay another thousand dollars.
         Q    Now, when you say an update, you mean an update of your
         program?
         A    Right.
         Q    Okay.  And if there was some improvement or little change
         or something like this, it would make your program a little
         better?
         A    Right.
         Q    Okay.  So when we talk about update, we're not talking
         about the same thing as him issuing, let's say, Version 2, that
         updates the contents of the disk?
         A    That's correct.
         Q    But what you meant when you wrote that was, everytime he
         issued an update of his disk with some different stuff on it,
         then he had to pay you another thousand dollars, right?
         A    That's correct.
         Q    Well, do you think that was really clear in how you had
         written it?
         A    At the time I thought it was clear but - -
         Q    We always think it is when we write it, but on reflection
         do you think it was, maybe, less clear than it should have
         been?
         A    When I read it - - when he read it to me and described it
         to me, you know, to tell the truth, I really thought he was
         trying to get out of paying me, you know.  I've had problems
         before, so actually, I just told him the same way I told
         Richard, I said, well, you don't have to do anything, just go
         about your business and I go about my business.   And he - -
         Q    In other words, he was under no obligation to use you on
         subsequent versions or to use your program on subsequent
         versions?
         A    I think he was under moral obligation, but there was no
         legal binding.  I think it was moral obligation.
         Q    What was his moral obligation to you to use your program
         on more than one version?
         A    He didn't have a concept of how to access information or
         how to do a lot of these things and I got him through the
         development.
         Q    So you taught him, really, how to do this sort of thing?
         A    That's correct.  The same way I did Richard.  And I just
         felt like - - and as we did this here, you know, my idea, you
         know, is that I'm a programmer and I really don't have time to
         be bothered, you know, with doing a whole lot of other things,
         you know, like making money, counting money, doing a whole lot
         of other things.  And Richard even mentioned that.  He told me
         that, too.  But I know how to do it.  I just wanted to have
         someone, you know, to do certain types of work, and other
         friends, people that kind of like, you know, advance me money
         to make sure that I have the hardware I have and help me, you
         know, help me pay my telephone bills, when I get those final
         notices and things.  They would say, you know, wow, you mean
         you're only getting a dollar and he's getting forty-nine
         dollars.  You know, the thing is in my situation is I expect to
         have a hundred people, you know, a hundred publishers, so as
         long as he just pays that one thousand dollars and the same way
         when he sends it out to the publisher to have it published, he
         pays them for mastering so he pays that fee and that mastering,
         it's all included and then he pays us that one dollar, you
         know,  I'll  be taken care of.
         Q    Well, your program appears on Version 1 and Version 2?
         A    That's correct.
         Q    All right.  Is there any difference in your program
         between Version l and Version 2?
         A    No.
         Q    Okay.  So, you didn't make any changes or do anything,
         right?
         A    Right.
         Q    Okay.  But, nevertheless, he still has to pay the thousand
         dollars?
         A    Right.
         Q    Because that's the way the contract you said - -
         A    You can understand it easily.  Someone came to the flea
         market a month ago - -
         Q    Wait, please, please, let me interrupt you because let's
         just get what the question and answer is.  You wrote that
         contract yourself, right?
         A    Yes.
         Q    You didn't get any legal advice or a lawyer drafted or
         anything?
         A    That's correct.
         Q    Okay.  And that was after you had been through the
         experience with Richard where you didn't get a thousand dollars
         and a dollar a disk there, right?
         A    Correct.
         Q    Okay.  So you thought what you were drafting would kind of
         solve that problem and to insure that you get paid what you
         thought you were entitled to get paid, right?
         A    That's correct.  I also felt that he was so very much
         aware because he had used the words in an affidavit to my
         attorney, you know, that he recalls Richard promising me a
         thousand dollars per version and a dollar a disk.  So, I didn't
         know that I had to be so explicit in my wording because I read
         his affidavit that, you know - - and all I was doing is
         reiterating the same agreement that he was - -
         Q    So you thought he understood because he was aware of
         Richard's situation?
         A    That's correct.  So, I didn't - -
         Q    Okay.  But then he said that he wasn't, he was under a
         different impression?   I mean, when he came out with Version
         2, he said he was under a different impression as to what was
         the - -
         A    Right.
         Q    And let me ask you this:  Why, is there a particular
         reason you would be entitled to a thousand dollars if you
         didn't make any changes or improvements to the program from
         Version l to Version 2?
         A    Yes.  Yes.   If someone came and ordered a data base
         program for his video store, he asked me, you know, to write
         his program and he asked me how much it would cost and I told
         him sixty dollars and he almost flipped.  Sixty dollars, he
         said, the less I've ever seen is a couple thousand dollars.
         And he's having a video retail store and he was trying to go
         business-wise and he really was mocking it out.  And so he sat
         down and gave me the specs.  And he couldn't understand and my
         assistants who I had make modifications to my program to
         accomplish this task - - by the way, the programmer language is
         D base, so it doesn't involve my libraries in this particular
         capacity.  My D base library.
                        But what I did, I sorted out my libraries to
         accommodate the input and output for this customer.  And I
         delivered it to him for sixty dollars and I told him that if he
         needed any changes or whatever, modifications, initially, we
         would work with him to get everything done perfectly, the way
         he wanted his store to do.
                        But after a certain amount of contact, then
         we'll do work at thirty-five dollars an hour, you know, other
         changes.  But, you see that's going on one computer.
                        Now, if this person had ten computers he would
         probably get a discount and it may be something like,maybe
         forty-five dollars per computer.  If he had a hundred computers
         it may be a smaller discount and if he had a million computers
         there may be a smaller discount.  And so when I made my
         agreements with Richard and Greg, or other people, I make it
         for a computer that I think those disks should be on.  That's
         why they only pay a dollar, you know, for every - - they're
         paying the dollar for their customers to use my program on
         their computer.
         Q    Well, that explains the dollar a disk.
         A    Right.  Now, when they make a new disk that's a new
         agreement, a new stamp that's going on this.  I'm not selling
         them the program to do as they please.  They really have to
         negotiate everytime they want to reuse my program again.
         They're using my program on a disk and they have to negotiate
         my permission.
                        'Well, I'm making additional things to start
         your program on it; can I?'  'Yes, it'll cost you a thousand
         dollars.'
         Q    Well, let me ask you something then:  Wouldn't it make
         more sense for somebody who wanted a program to just go to a
         programmer and have him write the program for it and buy it
         lock, stock and barrel and not have to pay the person, you
         know, either a per-disk basis or a new thousand dollars a shot
         everytime they wanted to issue a new version.  Wouldn't that
         make more sense to you?
         A    You know, maybe you see Larry James wouldn't it make a lot
         of sense even if he was telling you this, for you to just make
         CD ROM disks instead of giving - - I mean a lot of things make
         sense, but - -
         Q    I'm not criticizing you but I am asking if that
         arrangement wouldn't be more sensible to a purchaser of
         software?
         A    It probably could be sensible but morally it would be
         wrong.  It would be wrong for them to go with someone, dream
         with them about being a millionaire and utilize their vehicle
         to get there and they're going to work on this project together
         and all of a sudden when the money starts coming in, he'll say,
         oh, now I can buy my own, I don't have to include him anymore.
         That would be morally wrong.
         Q    Well, that didn't occur with Richard, though, did it?
         A    Yes.  It occurred in a very much worse way with Richard.
         Q    But he didn't fire you?
         A    What you mean he  didn't fire me?
         Q    Right.  I mean he didn't get rid of you, you left him,
         right, you walked out on him right?
         A    When I left I told Richard that I was available.  That all
         he had to do was call me for support for my product, and he
         continue to use it, but whatever the situation is, I was really
         expecting that he would come back to his senses and proceed and
         continue where everything left off at.
         Q    But instead he went to another programmer who did the work
         for him.  You don't have a problem with that; do you?
         A    Do you want the answer that that I gave every body which
         is my feeling on the situation?
         Q    Well, I guess I want a question that pertains to the
         lawsuit, you know.  You may feel there's a moral obligation,
         but unless it - -
         A    What was the question?
         Q    Now, I forgot exactly the wording myself.  But,
         essentially, you don't have a problem with the fact that
         Richard decided to go with a different programmer?
         A    You know, I didn't sue Richard.  I was strongly advised to
         sue Richard when he started welshing on his agreement, I didn't
         sue him.  This is my response that the world is too big for
         friends, people that was friends, to be fighting each other.
         And let him prosper, you know, and do as he please, that was my
         response.
         Q    There are a lot of programmers out there now; aren't
         there?
         A    Yes, there are.  There always have been.
         Q    Okay.  Well, not always, but - -
         A    I mean since there was computers, I mean there was a
         substantial number of people to account for, per computer. I
         mean there are millions of computers more, now, and a lot of
         people that use a computer do use them for programming.
         Q    Do you know other programmers?
         A    Yes, I do.
         Q    Do you know other programmers who would have the ability
         to create a file retrieval system for a CD ROM?
         A    You know, anybody could do it, alot of people- -
         Q    Well, that's pretty much kind of a yes or no then?  I
         mean, so the answer is yes?
         A    Yes.
         Q    Okay.  So, if that's something that any qualified
         programmer could do, doesn't it make sense to you for somebody
         to shop around and get the best product for the best price?
         A    Anyone would have the technical skills to do it, but they
         probably wouldn't have the time to do some of the analysis that
         would be important, some of the analysis.  See, some people - -
         a lot of people didn't know that the media on a CD ROM disk,
         was no different than a hard drive.  I mean, I didn't write,
         specifically something for a CD ROM.
         Q    Do you do any programming by the hour?
         A    No.
         Q    Do you know other programmers who charge by the hour?
         A    No.  Well, I know some programmers.  I don't know how they
         charge.
         Q    I mean, do you do any programming that is simply, kind of
         by the hour kind of thing?
         A    What my contact with customers as consultant, as far as
         consultant, I will provide them what they need.  And when I
         provide it most of the time the situation is I'm just on my
         honor.  When I go back to a customer if I give them a bill for
         a couple of hours, you know, they don't question, they're happy
         and very pleased with the results and I just give them a bill.
         Q    Well, do you know any programmers, I mean I'm trying to
         establish what's kind of out there in terms of what programmers
         would do.  Is it possible to find a programmer who would simply
         create a file retrieval system for a CD ROM if he was asked to
         and take a certain lump sum for it and the person getting the
         work done would own it,lock, stock and barrel.
         A    You know, there are probably a lot of people out there
         that would probably do it.  You know, like the situation is
         when a person starts putting together a business,I mean we have
         a business concept.  There's a lot of things you need - -
         Q    But I'm not talking about somebody who comes to you with
         a business concept.  I'm talking about somebody who comes to
         you with a very specific software concept and says this is what
         I want the software to do, can you do it and you say, yes.  I
         mean, are there programs out there that - - programmers out
         there who could not only do it but would charge a lump sum and
         that would be the end of it?
         A    Yes.  Just like if a person asked me to make business
         cards for them.  They pay me - - when you go and have your
         business cards printed, maybe you pay a hundred dollars to have
         professional looking business cards, a hundred dollars a year
         for it.  And maybe you have ten people, you know, that are
         doing basically the same.  You know, if I came to your place
         and this and that, and you go somewhere else and get the
         stationery and pay them some more money, you know that before
         you buy a computer, you might be paying me to make these
         things.
                        You know, your business cards and your
         stationery things like that.  But, if you look close enough you
         could say, wow, I should just buy the computer and now my
         business card, my stationery would come out perfect and nice
         everytime, this and that.
                        So, yes, he could buy the programmer and instead
         of hiring the programmer, I mean you could buy the computer
         instead of hiring me to do the computer work.  But, if you
         don't have the money to buy a computer, then you just have to
         buy the results of what the computer can do.  And the same way,
         if Richard Graham or any body else can hire or buy the
         programmer, then they just have to be satisfied with hiring
         what the programmer is going to produce.
         Q    Okay.  But you said before, for example, that your cab was
         not owned by you, you rented it.  You paid a hundred and fifty
         a week for it.
         A    Only because I didn't have the money.  It was - - it took
         about four or five thousand dollars to buy into the business,
         so instead I pay a hundred dollars a week, a hundred fifty
         dollars a week.  If somebody gave me - -
         Q    Wouldn't it have been more economical to be able to buy
         the cab outright?
         A    Tell that to about two hundred cab drivers in Buffalo.
         Q    Well, sure.  But I'm asking you wouldn't it be more
         economical in the long run to buy your own cab?
         A    You have to have that initial money in the first place.
         Q    Okay.  But assuming you had the initial money wouldn't it
         be more economical in the long run to buy your own cab?
         A    When I had the initial money, you know what I did with it?
         I bought computer stuff.
         Q    Okay.  But if you had the initial money and you wanted to
         buy a cab wouldn't it be more economical to buy a cab outright?
         A    It absolutely would be.
         Q    Okay.  That's the answer I was looking for, all right.
         So, I guess the next question is that a person, it would be the
         same thing with software, I mean?
         A    That's correct.
         Q    And, I suppose - - do you own your computers outright or
         do you rent them?
         A    I own my computers.
         Q    Okay.  That's more economical than renting them; isn't it?
         A    That's correct.
         Q    All right.  Wouldn't it be more economical for a person
         buying software to buy it outright rather than rent it?
         A    I'm quite sure it would be more economical.
         Q    If someone were to buy a piece of software like this, a
         file retrieval system outright, do you have any idea what a
         programmer, typical programmer out there in the market place
         should charge for something like that?
         A    Me, myself - -
         Q    But you wouldn't do it that way, though?
         A    I probably wouldn't.  But if I did, it would - - at this
         time, at this particular time, I might consider it but - -
         Q    If you did, what would you charge?
         A    It would be according to what the customer is going to do
         with it.
         Q    Well, but you know what Richard does with it.  Say it was
         somebody like Richard or Greg Armenia who was going to publish
         the CD ROM disk.  He wanted a CD ROM retrieval system and he
         was going to use it on either, you know, he says, I want to own
         the thing, lock, stock and barrel, you know, no per disk, no
         rent and no additional stuff.  I just want the thing in
         finished quantity.  If I use it on one disk if I use it on a
         million disks.  I want to outright own it.
         A    I'll answer that and try to understand this.  Microsoft
         will hardly sell windows, they would just sell license to
         windows.
         Q    Well, I understand, but we're not talking about buying - -
         A     We're talking about Apollo 3 that wants to build up a
         reputation and a volume and type of expertise like microsoft.
         And I always said that.
         Q    No, no.  We're not talking about Apollo, we're not talking
         about filed retrieval, in fact, this person who comes to you
         says, I want to put my own name on it.  I don't want your name,
         I don't want any name on it.  I want my name.  I want to own it
         lock, stock and barrel.  I want to pay you for your work and
         pay you a fair price, what's a fair price?
         A    I really consider - - I hate if I sound like maybe I'm
         boasting, but I put too much time in art work and consideration
         and - -
         Q    Okay.  I understand what you're saying.
         A    It's priceless.  I would never sell mine.
         Q    All right.  All right.  Okay.  Your sometimes I suppose
         like an artist who feels that they can't really sell something
         that they've created or something like that.  They want to kind
         of keep their hands on it.  I can understand that.  But there
         are programmers out there who would do that, you already
         testified to that, right?
         A    Yes.
         Q    Okay.  Well, you know what the market is out there.  What
         would a typical programmer be charging for that kind of task?
         A    To tell the truth, I know they could do it, but Phil Katz
         wrote an unzip utility that's used on a CD ROM drive.  I cannot
         imagine him or someone being able to hire Phil Katz - -
         Q    You don't know Phil Katz; do you?
         A    Not personally, but I know of him.  I subscribe to his BBS
         and I communicate with his staff.
         Q    But you really don't know whether or not Phil Katz has
         ever written a program for somebody, charged them a flat fee
         and that was the end of it?
         A    Right.  See the - -
         Q    Okay.  Well, that being the case, let's get off of Phil
         Katz.  Can you answer the question?
         A    I'm talking about a type of program, a type of program,
         you're saying a retriever, right?  Something to do what my
         program does on Richard's disk.
         Q    Sure.
         A    Okay.  because of what my program does on Richard's disk
         and the quality and what I want it to be like a standard, I
         wouldn't sell that no more than Phil would sell what his does
         on Richard's disk.
         Q    You wouldn't, but there are plenty of programmers out
         there who will.  What would they go for?
         A    Maybe - - at this particular time, I would say, probably,
         ten thousand dollars, at this particular time.
         Q    That's what it would cost to have somebody produce it?
         Okay.  And hand over the ownership rights and everything else,
         correct?
         A    Some years back it would have been a whole lot more, but
         at this particular time because it's kind of common, I would
         say that you would probably get it done.
         Q    The term support has come up and computers and programmers
         use that term support.  What does that word mean to you?
         Because it's got kind of a special meaning in the computer
         business.
         A    It means - - it's self-explanatory.  I mean, if a person
         has a problem - - support might mean that I would answer your
         questions to help you to overcome what value you have in it.
         Q    It would be available?
         A    Right.  And also it might mean that support, that the
         product is going to be able to function in a particular
         environment.
         Q    And if there's a glitch, you'd fix it?
         A    Yes.
         Q    And if there was need for a change you would make the
         change?
         A    Yes.
         Q    Okay.  So that's what it means when a programmer is going
         to support a program?
         A    That's correct.
         Q    Okay.  Is that a valuable service?
         A    It is.
         Q    All right.  Now, this arrangement you had with Greg
         Armenia, was this thousand dollars and a dollar a disk, was
         part of that arrangement that you would support the program?
         A    Absolutely.
         Q    Okay.  So you had an ongoing obligation then to fix
         anything that was wrong with it and make some minor changes
         along the way, if it need it; isn't that right?
         A    The element was support.  You know, like if you buy
         microsoft or word perfect, I mean, I'm quite sure you expect to
         get some support, you know, when you're installing a computer.
         But, if there's somethings that you really don't agree with,
         you know, like certain things, you said this particular glitch,
         this and that, I don't want to work around it, I want to do it
         this way.  You can't just call the developers and demand that
         they make certain types of changes.
         Q    Yes.  But you're certainly not equating a person who buys
         word perfect off the shelf with somebody like Greg Armenia or
         Richard Graham who has a programmer, make a program for them,
         are you?
         A    Actually, yes.  That's the way I looked at my utilities.
         That's the way - - I always discuss it that way, that I provide
         a product.  It's a courtesy if I make changes.  If I make
         changes it's a courtesy.  Otherwise, I would support it by
         explaining how to use the product.
         Q    Well, you say it was a courtesy but, in fact, when you
         entered into the agreement with Greg Armenia you more or less
         said that you would support it, right?
         A    Right.
         Q    Okay.  So he - -
         A    Ask the questions.
         Q    - - he was relying upon that as part of the deal, right?
         A    That's correct.
         Q    And Richard was relying upon that as part of the deal when
         he had you do the program for him?
         A    Your words there can be misleading.  You said when he had
         me do the program.  I want you to understand, I went to Richard
         and offered him the use of my program.
         Q    You understand, I'm trying to avoid saying your program,
         his program, he hired you, because I know all those elements
         are in dispute.  So, rather than kind of go back to those
         disputes, I'm trying to use language which is kind of - - you
         know, when I say he had you write a program, I'm meaning it in
         the most general sense so that we don't get off on those
         disputes that we've already been on, you know.
         A    Yes, he expected support and I did give him the support.
         Q    Okay.  Now, is there any way you can isolate the support
         from the actual making of the program itself in terms of how
         much time or value is the support worth versus how much time or
         value the actual making of the program is worth?
         A    When I sell a computer, a piece of hardware, it cost me
         about eight hundred and seventy-five dollars to put the
         computer together with all the parts.
         Q    Uh-huh.
         A    I sell the computer for nine, ninety-nine.  I make a
         little bit more than a hundred dollars.  When a person buys one
         of my computers, they call me and ask me how to do all these
         things.  It takes me about a half an hour to assemble the
         computer and it almost looks like maybe I make a hundred
         dollars in a half an hour.  But by the time I finish giving him
         support, talking to him and answering questions, that figure
         drops down to about five dollars an hour.  It drops down real
         low.  But, people come to me because they appreciate the
         support and that's why Richard came to me.  He knew that he
         could get support from me, that I will answer his questions.
                        So, I don't really get a lot of money, but the
         thing is, I do give quality time and quality support, and I
         offer quality time and quality support.
         Q    I appreciate all of that.  But, I guess the question is is
         it possible to separate out the time and effort that you put
         into support from the time and effort that you put into the
         original programming and be able to put some kind of
         comparative value on them?
         A    If I put value on it, it would seem like I was really
         selling myself extremely small.  But I can't separate it,
         because I don't charge it to the customer.
         Q    Let me ask you along a new line here.  Jeffrey Anderson.
         You had said that you had met him through your bulletin board
         service?
         A    Yes.
         Q    Do you remember when that was?  I think you answered on
         direct that it was - - that it would be about the same time
         that you met Richard or - - yeah.
         A    It was around the same time.  I could tell it to you but
         I'm not sure which one I met first.
         Q    Is Jeff Anderson still working for you at the flea market?
         A    Yes.
         Q    Okay.  He works there every Sunday?
         A    Yes, he does.
         Q    Okay.  And he began working when?
         A    A little while ago, about - - just a couple of months.
         Q    Okay.  Was it before the trial started?
         A    No.
         Q    How did you happen to talk to Jeff about working for you?
         A    I invited Jeff to - - actually when I asked him to come to
         court, we was in communication and I invited him to come to see
         my operation.
         Q    When was that?
         A    I guess it was right after the trial started.  I invited
         him to come and - - actually, I asked Jeff to come to give me
         a ride because my car had broke down.  I didn't have
         transportation.  I asked him to come and give me a ride.  He
         came to the flea market to chauffeur me around as a friend.
         Q    This was after the trial started wasn't it?
         A    Yes.
         Q    Was it also after Mr. Graham had testified about his
         contact or relationship with Jeff Anderson?
         A    Yes.
         Q    And during the course of your communication with Jeff
         Anderson, then you offered him a job?
         A    Well, it kind of happened at the same time.  I mean, I was
         kind of - - I didn't have transportation and I had mentioned to
         Jeff that it's kind of hard for me to get to the flea market in
         the morning time and I know - - and I asked him what was he
         doing.  Actually, I'm not sure if he volunteered first, but
         anyway, it all kind of happened and initially he just came
         there to help me out as a friend.  I just started paying him.
         He just came there, not as an employee situation.  The first
         couple of days - -
                        THE COURT:  To the flea market?
                        THE WITNESS:  Right.  There was no money
         involved the first few days.
         BY MR. KITCHEN:
         Q    When did you start paying him?
         A    About three months ago.  About two months ago.  About six
         weeks ago.
         Q    And how much do you pay him?
         A    At this particular time forty dollars a weekend.
         Q    Do you take taxes and that thing out, out of his pay?
         A    No.  There's a situation, I'm in the process of putting
         together a contract which he is working as an independent agent
         at a flea market, where he's, you know - - I don't know how to
         put the words, but he's working for himself.
         Q    What does he do there?
         A    Answer the telephone.
         Q    Does he sell?
         A    No.  I mean he can sell.  He answers the telephone and
         takes messages, you see he does anything,  he sells.
                        THE COURT:  In what way, then, is he working for
         himself?
                        THE WITNESS:  Because what I'm going to do is
         set up a commission situation where he would sell.
         BY MR. KITCHEN:
         Q    Does he get a commission now?
         A    No, I'm telling you- - beg your pardon.
         Q    He gets forty hours for a Sunday?  He gets forty dollars
         for a Sunday?
         A    The weekend.  Yes.  I'm in the process of putting his
         situation together.  I'm still in the process and, in fact, I'm
         designing a contract right now - -
         Q    How many hours does he put in on the weekend?
         A    Let me see - - he gets there at 9:00 and he usually leaves
         at 6:00.  How many hours is that?
         Q    Nine hours.  He does that two days?
         A    Yes.
         Q    Okay.  That's eighteen hours?
         A    Uh-huh.
         Q    So you pay him a little over two bucks an hour, right?
         A    You want to know something?  The situation there, Jeff is
         kind of helping me.  The first couple of weeks, the first
         couple of weeks I gave him twenty dollars for the weekend, the
         first two or three weeks.  And then I started giving him forty
         dollars for the weekend.  And right now I'm in the process of
         designing a job situation.  I told you all during this
         situation that right now I'm building something different.  And
         the things that I'm building have something to do with
         communication service and a lot of other things.  But it's
         something new that's being developed and Jeff happens to be
         involved.
         Q    Now, with respect to Greg Armenia.  You said you never
         knew him until he called you up on the phone?
         A    That's correct.
         Q    And that was in February of l992?
         A    No.  That was something like about - - that was in the
         middle - - let me see.  When did the trial start?  I mean the
         preliminaries happen.  It was about six - - it was about- -
         Q    We had a hearing in December of l99l.
         A    December, okay.  So it happened a few months after that
         preliminary hearing.
         Q    That's what I say, about February of l992?
         A    Yes, around March, February or March.  I think the weather
         might have been kind of nice, so it might have been closer to
         March.
         Q    And you had a conversation with him?
         A    Yes.
         Q    And he wanted you to write a retrieval for him, right?
         A    Somewhere down the line.  Actually, we had talked,
         probably about a month before that subject came up.
         Q    Well, did you tell him, gee, I got a court order, I'm
         really kind of limited and I just can't use the same retrieval
         that's the subject of this court order?
         A    Yes, there was a court order, and in respect to the court
         order I had to write another retrieval.
         Q    Okay.  So, you did write this other retrieval?
         A    That's correct.
         Q    And it's substantially - - I mean, you rewrote it from the
         beginning?
         A    That's correct.
         Q    Now, you testified that, notwithstanding the fact that you
         had written that from the beginning, that there would probably
         be some similarities, right?
         A    That's correct.
         Q    Similarities, yes.  Okay.  And weren't you concerned that
         the similarities might be, well, might make you in violation of
         the court's injunction?
         A    Of course I would be very concerned not to violate the
         court injunction, so I wrote another program.
         Q    Well, I know.  But, I mean, the new program that you did
         write for Pier I, still has similiarities with the Night Owl
         Program that's the subject of the litigation, right?
         A    That's right.  All my speech has similarity. Everything
         that I wrote and everything that I do is going to be similar.
         I think that's a characteristic of us.
         Q    Well, didn't you just change a few things around to make
         it look a little different and then, essentially, it's the same
         thing as the Night Program?
         A    No.
         Q    Now, you testified that Richard, when you first got
         together in April of l99l, was going to give you a CD ROM
         drive?
         A    Yes.
         Q    Now, this was an outright gift, this was not in exchange
         for anything or what?
         A    Well, to me it looked like a gift.
         Q    Okay.  So, you're saying he gave this to you and he didn't
         expect anything in return?
         A    Well, we was friends, he appreciated the enhancement that
         my program was doing to his business, for his business.
         Q    Well then the CD ROM drive gift didn't occur until after
         you had written this retrieval program for him in quick basic?
         A    The gift happened before I had delivered anything to him.
         But it was after my program was written.
         Q    Was the gift given in exchange for anything?
         A    No.  It was just given on the fact that I was anxious to
         have a CD ROM drive and he gave it to me.
         Q    So he didn't expect anything in return?
         A    I asked him for a drive on credit and because of what I
         told him that I would do he was excited.  He gave me the drive.
         And as far as I was concerned, if you want to look at it and
         pay me for using my program, no, that was okay, because what I
         was looking for in using that program was promotion.  I mean,
         he gave me the drive.  I asked him for the drive on credit.  He
         gave me the drive.  But what I wanted was promotion.  And
         that's what I contracted for verbally.
         Q    Well, I mean, are you saying now that the CD ROM drive was
         not given as part payment for the programming you did?
         A    No.  It wasn't given.  He didn't say it was payment, he
         said it was appreciation.  He said, I appreciate so much for
         what you can do, this and that. In fact it was so vague and
         unclear when he gave it to me, what he was doing, except that
         he was doing it, basically, you know, like just giving it to
         me, you know.  That he had a problem with Ralph Marquart and he
         fired Ralph because Ralph got mad because he gave it to me with
         no bars, with - - he just gave it to me.
         Q    Well, didn't you have a discussion in April in which you
         specifically arranged, though, to get the CD ROM disk drive in
         exchange for doing the program?
         A    I had mentioned to you, I just mentioned to you that I
         asked him to give me a drive on credit and he gave me the
         drive, period.  He just gave me the drive.
         Q    It had nothing, whatsoever, then to do with doing it in
         exchange for the program?
         A    Well, you can say it had a lot to do with it, it was
         happening all at the same time of the negotiation and
         everything else, but it was not put in the words that I'm
         paying you for the drive for this program, I'm buying this
         program.  All I'm just paying you for anything.  He gave me the
         drive and I gave him the use of my program.
         Q    Did he give you anything else?
         A    Richard gave me anything I asked for.
         Q    Well, I'm showing you Plaintiff's Exhibit 30, at Page 208.
         Could you read down here at Line 20, you recall at the
         preliminary hearing when you were asked, "And in exchange for
         the service what were you, what did Mr. Graham state that you
         would receive in return?" And do you remember what you
         answered?
         A    "A CD ROM drive system and disk."
         Q    Okay.  And the next question was, "Anything else?"  And
         your response was, "No."  Is that correct?
         A    Yes.
         Q    Well, was that truthful when you made that answer?
         A    Yes.  He gave me the disk, as I mentioned.
                        THE COURT:  Gave you the disk?
         BY MR. KITCHEN:
         Q    And the CD ROM drive, right?  I mean that's what it said
         was given in exchange, right?
         A    He gave me those things.
                        THE COURT:  He gave you the disk and then there
         was a drive, wasn't there?
                        MR. KITCHEN:  Drive and a disk, Your Honor.
                        THE COURT:  That's what I thought.  Go ahead.
         BY MR. KITCHEN:
         Q    Well, let's go on.  Have you received any CD ROM disks
         other than that first disk, have you received any disks from
         Mr. Graham?
         A    Yes.
         Q    About how many?
         A    About three or four.
         Q    Three or four.
         A    I really don't recall.
         Q    Well, okay.  But I mean, we're talking about just a few.
         We're not talking about a quantity that you could resell or
         anything?
                        He never gave you any disks that you were free
         to resell?
         A    I was thinking about different versions.  But he did give
         me - - I think he gave me ten disks.
         Q    Ten?
         A    Yes.
         Q    And did you retail them, retail sales, sell them by
         retail?
         A    No.  I - - A couple of them I did and a couple of them I
         gave them with a package, a CD ROM drive computer system.
         Q    Okay.  And what were they worth?
         A    What were they worth?
         Q    Yes.
         A    Retail
         Q    Yes.
         A    At the time Richard and I, we were selling them for a
         hundred fifty dollars retail.
         Q    Okay.  So ten disks would have been worth fifteen hundred
         dollars?
         A    That's what Richard was retailing them for.  That's what
         we were retailing them for, yes.
         Q    Now, was that partial compensation for your work as a
         programmer?
         A    No, no.
         Q    What was that for then?
         A    He was paying a dollar apiece for these disks, a little
         more than a dollar apiece for these disks.  We were working on
         them together.  He just gave me a bunch of disks to do as I
         please.  No, that had nothing to do with compensation.
         Q    Okay.  All right.  Let's look at it the other way then.
         What was the value of them wholesale?
         A    The value of them wholesale?  At the time Richard was
         wholesaling those disks I think for around - - it was according
         to the customer and that's why we had problems - -
         Q    I understand you had problems, but I'm asking a value?
         A    - - because every customer he talked to he gave them a
         different - -customer.  Some customers he was doing them for
         sixty dollars, some he was doing fifty dollars, some customers
         he was doing for twenty dollars and one customer he was doing
         it for ten dollars.
         Q    Well, do you have a figure that you can give us as to what
         those ten disks would have been worth wholesale?
         A    I, myself, didn't do wholesale things so I couldn't place
         a value on them.  For me they were worth the value that they
         were to produce, a couple of dollars.
         Q    But you sold them for a hundred and fifty and gave away
         some of those?
         A    No.
         Q    Did you sell any for a hundred and fifty?
         A    I gave away most of them with computers.  A couple of them
         I did sell to computer club members, to friends for thirty-nine
         dollars, at that particular time.  And when I sold it to them
         I told them that they had a retail value of one hundred and
         fifty.
         Q    Did you ever sell any of the disks for a hundred and fifty
         dollars?
         A    I never retailed disks. Actually, one of the reasons I
         didn't - -
         Q    Well, you have a retail outlet, though, right?
         A    Right.  You see, Richard asked me not to sell disks
         locally.  He didn't want his disks to be sold locally.  He
         asked me not to and that's why I gave them to friends or gave
         them as a special gift item or something like that, because
         Richard asked me not to sell them.
         Q    So you didn't sell any?
         A    Richard didn't sell them.  He didn't want anybody locally
         to have his disk.  He gave me a few of them to share with
         friends and what I did I put them on - - I gave them with my
         customers with computers.  But like I said, Richard did not
         want his disk - - in fact, it was even written on his - - I
         think it was written on the labels that they're not to be
         distributed in the 7l6 area code calling area.
         Q    So he gave you ten disks but he told you you couldn't sell
         them?
         A    Yes.
         Q    Okay.  And apparently you did sell some of them?
         A    He asked me, he said that he didn't want - -
         Q    That's a yes or no.  You did sell some of them, right?
         A    Yeah.  I gave them away to my customers.
         Q    Which version was this, by the way; do you remember?
         A    I think five of them was Version 4 and five of them was
         41.  A couple - - it may not have been ten.  I don't remember
         how many it was.
         Q    Now, on the sale of these things, didn't he just put a
         time limit on it?  In other words, didn't he say, look, don't
         sell them until at least thus and such a date, like after
         December '9l?
         A    No.  He didn't want his disks to be distributed in this
         area, you know, like commercially.
         Q    Why?  Did he say why?
         A    Yes. and before that was all right - -
         Q    What did he say?
         A    I guess - - I don't remember his words, so I - -
         Q    Okay.  So you just knew that he didn't want them
         distributed all in this area?
         A    Oh, he told me he didn't want them distributed in the
         area.
         Q    But he didn't say why?
         A    Yes, you can say that.  He never was clear.  Actually,
         there was never reasons for them not to be sold in the area.
         To me, that was something that I was eventually going to teach
         him to deal with.  I even tried to tell him that, you know,
         persons, you know, to do all right at home and then branch out.
         I already told you that Richard had a problem with local people
         and I was telling him if these three people locally are okay,
         it would carry on, you know, everywhere else that he goes.
         Q    Now, referring to one of the programs, one of the first
         ones that you put out, you put out a copyright notice on it
         that said, "Copyrighted by Larry James and Richard Graham",
         right?
         A    Yes.
         Q    And so, essentially, the copyright at that point as far as
         you were concerned was owned by both you and Richard?
         A    No.
         Q    Who was it owned by?
         A    Larry James.
         Q    Why did you put two names on the copyright?
         A    Because I was referring to, and it's a sad thing that I
         didn't have the money to protect me from a friend, ut I was
         referring to that particular unit that was on that disk,
         nothing about the source, just that unit,that version - - I
         mean, the serial number 1 that was on that disk, I expected for
         Richard, you know, to be able to use it.  So, I was referring,
         you know, to, when I made that compilation, that he would use
         that and that's why I included his name on that.  I stamped it
         on that one that he can use.  I can't put it into words.
         Q    But if he was a part-owner of the copyright then he would
         be free to use the thing and make changes to it and other
         things, right?
         A    If he were a part-owner, that would be true.  But,
         according to our agreement he was using that particular
         executional version, that executional program.  And as a
         courtesy I put his name to give him permission to use it, not
         to take it.
         Q    Did you ever register that program?
         A    No.  I went to the library, and bought books and according
         to the books - -
         Q    Well, never mind what the books were, but I'm just
         establishing that program, at least, you didn't register?
         A    That's correct.
         Q    You didn't register a program until later on, the one that
         you wrote in August?
         A    Right.  I found out that I had to do this here to protect
         myself and, yes, it was around in August when I learned that.
         Q    Have you copyrighted more than one program?
                        THE COURT:  August of - - August of when?
                        MR. KITCHEN:  '9l.  '9l.
                        THE WITNESS:  Is that when it was?
                        MR. KITCHEN:  Yes.
                        THE COURT:  '9l?
                        THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q    Have you copyrighted any other programs?
         A    No.  I don't have time to be doing things like that.  I
         need to find somebody to give me a hand doing things like that.
         I just sit down and write programs and fellowship with people.
         I need to.  And, probably, as soon as I get some time, I'm
         going to copyright, maybe, a hundred programs.
         Q    You indicated that you had done some consulting work for
         a subsidiary of Ford Motor Company?
         A    Yes.
         Q    Who was that?
         A    RS&A.
         Q    RS&A?
         A    Yes.
         Q    And what do they do?
         A    They process warranty claims.
         Q    Now, they're wholly-owned by Ford?
         A    I beg your pardon?
         Q    Are they wholly-owned by Ford?
         A    No.
         Q    They just do work for Ford?
         A    That's correct.
         Q    Okay.  So they might just be a contractor with Ford Motor
         Company?
         A    That may be.
         Q    Okay.  You also mentioned another outfit that you said was
         a subsidiary of Chrysler.  I think you said J&L Enterprises?
         A    Yes.
         Q    Are they a subsidiary, wholly-owned by Chrysler or are
         they, perhaps, just a company, separate company that contracts
         with Chrysler?
         A    They probably contract.
         Q    Okay.  Now, this first program that you produced, did you
         get fully paid for it?  The one that was produced in quick
         basic?
         A    I can't get fully paid for my programs.
         Q    Well, I don't mean in the metaphysical sense, I guess I
         mean in the real sense.  I mean, did you get fully compensated
         for what you produced for Richard?
         A    I didn't charge Richard a commission on that disk, on the
         first disk.  I didn't charge him commission.  Richard brought
         up the concept of commission when he decided that he was no
         longer going to use a folio.  I asked Richard - -
         Q    So the answer is that you were fully paid?
         A    Richard promised me commission on that disk.  I didn't ask
         him for it.
         Q    He promised you a commission on the first disk?
         A    When - -
         Q    A dollar a disk?
         A    Yes.
         Q    And he said he was going to pay you that for the first
         version of the retrieval that you put out?
         A    He said for every disk that he sells from our program
         morning. (sic)  And he was - -
         Q    And that went even for the one that only had the quick
         basic program on it?
         A    Yes.  See, I didn't charge him.  The reason I didn't
         charge him is because I wanted the promotion and I wanted the
         CD ROM drive.  And Richard decided that he was going to replace
         - -
         Q    Well, back in December of l99l at that preliminary
         hearing, or the hearing on the preliminary injunction, you
         didn't mention anything about him owing you a dollar a disk for
         the first program you did; did you?
         A    Well, because I never charged him and never specified it,
         I'm not trying to make him owe something for something that I
         didn't specify.
         Q    Well, as a matter of fact, your testimony back there in
         December was that you did the programming in exchange for the
         CD ROM drive and disk, correct?  And that was it?
         A    (No response)
         Q    In fact, if you look at Plaintiff's 30, again, this time--
                        THE COURT:  Let me just put a word of warning
         out.  I promised our Court Reporter we would close for noon at
         l2:25.
                        MR. KITCHEN:  Okay.  Maybe just one or two
         questions.  I think we're just about - -
                        THE COURT:  Two quickies.  We get quick
         questions.  We get long answers.
                        MR. KITCHEN:  Yes, that's true.  The questions
         are easy, it's the answers that are tough.  Okay.
         BY MR. KITCHEN:
         Q    Page 2l4 in Plaintiff's Exhibit 30, the transcript. Down
         there on Line No. 20, the question is asked, which was similar
         to the one back on Page 208.  It says, "Okay.  In exchange for
         the quick basic program that you produced to allow him to use,
         you received what in return?"  And do you recall your answer
         that you said that "He gave me a CD ROM system - - drive
         system, and a CD ROM disk."
         A    I recall it.
         Q    Okay.  Was that truthful when you said that?
         A    He gave me that.
                        THE COURT:  In payment?
                        THE WITNESS:  He gave me that and he promised me
         a commission but he did give me that in payment.
         BY MR. KITCHEN:
         Q    Well, you didn't mention the commission back then?  Did
         you just forget that there was also - -
                        MR. OSTROWSKI:  Objection.  It's improper
         impeachment.  He was not asked about that.
                        THE COURT:  Well, wait a minute, wait a minute.
         My only complaint is he's asking more than one question.  Ask
         one question and we'll quit.
         BY MR. KITCHEN:
         Q    You didn't mention anything then about - -
                        MR. OSTROWSKI:  Objection.  He wasn't asked.
                        THE COURT:  He may.
         BY MR. KITCHEN:
         Q    You didn't mention anything then about commission; did
         you?
         A    That's correct, I didn't.
                        THE COURT:  All right.  We'll quit until what
         time?
                        MR. KITCHEN:  l:30?
                        MR. OSTROWSKI:  That's fine.
                        (LUNCHEON RECESS - l2:30 P.M.)
                        (RESUME - l:45 P.M.)
                                CROSS-EXAMINATION(CONT'D)
         BY MR. KITCHEN:
         Q    Okay.  Mr. James, the subsequent copyright notice that was
         on one of your programs had changed from being copyrighted by
         Larry James and Richard Graham but it changed to copyrighted by
         Larry James for Night Owl Publishing, right, or Night Owl, CD
         ROM or something, right?
         A    Yes.
         Q    And then it said written by Larry James and then it said
         collaborated with Richard Graham; do you remember that?
         A    I remember.
         Q    And you wrote that, right?
         A    I sure did.
         Q    Okay.  What did you mean "collaborated"?
         A   I was working as far as, telling Richard what to do as far
         as setting up the - - well, there were some things that he
         might want or something like that so the main thing was to give
         him some credit, give him recognition.  You asked me this in a
         lot of different ways.
                        THE COURT:  All right.  But don't answer it in
         a thousand different ways.  You've already answered it, you've
         answered it.
         BY MR. KITCHEN:
         Q    What were you giving him credit for?  What did he do?
         What contribution did he make?
         A    Well, he did sort out the directories with the modules I
         gave him.
                        THE COURT:  Sorted out what?
                        THE WITNESS:  He sorted out the directories,
         those DIRS, he sorted them by using PC file ware.
         BY MR. KITCHEN:
         Q    Okay.  Any other contribution to the program, itself?
         A    Oh, there was no contribution at all to the program, none
         whatsoever.  There was absolutely no contribution to the
         program.
         Q    Well, how about - -
         A    The collaboration came with just working on the project
         together to produce the CD ROM disk.
         Q    Well, how about the fact that he had already provided you
         with a working program that he had previously used on a version
         which he was - - and which worked, and which kind of set the
         pattern as to what he was looking for?
         A    I really didn't know, particularly.  I didn't ask him what
         he was looking for.  I just went to him and told him what I was
         going to take him.
         Q    You mean to say that he didn't really have any input in
         terms of what this retrieval was going to look like or be?
         A    That is correct.
         Q    So this was just something you did totally on your own?
         A    Yes.  I do that all the time.
         Q    And you didn't even rely upon anything that had gone on
         ahead of you in terms of the program that Richard and Jeff
         Anderson had put together that was on the previous disk?
         A    Not in terms of programs, but I did look at this format of
         the CD ROM,the format of the information that was on the media.
         And I adapted it to my retriever.   I adapted my data base
         manager to use those files that was on that disk.
         Q    Well, didn't you testify earlier that you were the one who
         showed Richard how to set up his DIR files, his directory
         files?
         A    Yes, I did.
         Q    Okay.  But, weren't those DIR files set up, virtually,
         exactly the same as the CAT files, they were just called
         something different?
         A    No.
         Q    Just a C-A-T, after the period.  They were DIR?  Well,
         they have the letters, D-I-R, instead of C-A-T?  Wasn't that
         the principal difference between them?
         A    That was a difference and that made a difference.  And, as
         I said - -
         Q    There weren't any other significant differences between
         the CAT files and the DIR files; were there?
         A    Well, That difference is very significant in itself in
         that PC - -
         Q    Well, what a name?
         A    Right.  Right.  That's absolute.
         Q    But when you wrote your program you could have set up your
         program to go look for CAT files rather than DIR files, right?
         A    The files had an extension after the name.
         Q    Well, sure, but the DIR, what was the significance of
         that?  Where did you get the letters D-I-R for that?
         A    PC Board.
         Q    Okay.  But, I mean, what's the significance of that?  Does
         the DIR stand for something?
         A    See, you asked me a question.  If I answer that question,
         it really doesn't give an answer to - - there's a significance.
         The significance is that dot.
         Q    Well, my last question to you, though, was couldn't you,
         when you wrote your program, I mean, it was arbitrary that you
         decided that you were going to pick DIR as the name of these
         directories.  You could have called it C-A-T.  You could have
         called it D-O-G, right?
         A    That's correct.
         Q    Okay.  So, the fact that you called them DIR instead of
         CAT, that isn't any significant difference, is it?
         A    That's not what I was referring to, right.  That's not a
         significant difference.  That's not any, whatsoever, that's
         correct.
         Q    And wasn't that most of the difference between the CAT
         files and the DIR files; it was just their name?
         A    No.
         Q    What was the other difference?
         A    The other files had an extension.  That was a dot and then
         some other letters on those text names.
          Q   But that's just part of the - - that's part of the name of
         the file, right?
         A    That is part of the name of the file.  You know, it might
         take a few days for you to understand this difference.  You
         know, you have to learn something about - -
                        THE COURT:  We don't have a few days.
                        THE WITNESS:  That's what I'm trying to let him
         know.  If you keep trying to ask me a question by question,
         question by question, it'll probably take a year for you to
         understand - -
                        THE COURT:  Not if you just answer the
         questions, Mr. James.
                        THE WITNESS:  Okay.
         BY MR. KITCHEN:
         Q    What was the names of the CAT files?  It was just a number
         with CAT; wasn't it?
         A    Yes.
         Q    Okay.  The names of the DIR files.  It was just a number
         with DIR, right?
         A    Right.
         Q    Okay.  No difference there, right?  Other than the
         letters, themselves?
         A    One of them had a dot, had a period, as part of the file
         name.
         Q    Okay.  But every file name that's run on a PC, on an IBM
         type PC has a name which can have a maximum of eight letters
         followed by a period followed by three letters, correct?
         A    That's correct.
         Q    And that except in certain special cases you can call
         those names, either the eight letters before or the three
         letters after anything you darn well please, right?
         A    That's correct.
         Q    Okay.  Now, you indicated that all of this was based on PC
         Board's format?
         A    Yes.
         Q    And you're saying that's where Jeff Anderson got his
         format for this?
         A    No.
         Q    Where did he get his format from?
         A    I really don't know.
         Q    Well, you've seen it.  Doesn't it look like PC Board's
         format?
         A    The files were written on, resembling the structure of PC
         Board.
         Q    Okay.
         A    Resembling the structure.  And Jeff's Program handled the
         files that were on the media just as they were.  That extension
         makes a difference.  It will not work - - you know, just like
         you said, yes, there's a file, eight letters and an extension.
         The extension is reserved for something else.  In my program
         it's reserved for something else and the PC Board.  So having
         those extensions they won't work.  It worked with Jeff's
         program because he doesn't use PC Board and he didn't know
         anything about the way PC Board handled them.
         Q    Well, but the format of your text files, your DIR files,
         is essentially the same as they are in PC Board; aren't they?
         A    Yes.
         Q    Okay.  In fact, didn't you testify on direct examination
         when we were here on the 2nd of November that, essentially,
         this was - - it wasn't even original, I mean it wasn't really
         an original thing.  It came from PC Board, right?
         A    The structure of the text files did come from PC Board,
         yes.
         Q    Okay.  So, they weren't really original with you then;
         were they?
         A    That's absolutely correct.  The structure of those text
         files, I have no claim on them.  Clark Development Center owns
         that claim if someone can claim it.
         Q    Now, you testified on direct examination, also, that
         during your conversations with Richard that at some point or
         another he said that your program was better than Folios,
         right?
         A    That's correct.
         Q    Okay.  And he wanted to use yours instead of Folios,
         right?
         A    That's correct.
         Q    And, in fact, he did.  What was he - - and he also said
         that he wanted to pay you or would pay you what he was paying
         Folio, right?
         A    He said that at the same time, yes.
         Q    Okay.  What was he paying Folio?
         A    I have no idea, he never told me.  He just told me what he
         was going to pay me.
         Q    Well, Folio is a commercial program, right?
         A    That is correct.
         Q    In fact, Folio publishes a number of programs; don't they?
         A    I really don't know.  I know that it's probably a program
         that he put on one of his disks, that's as much as I know.
         Q    Okay.  And do you know what it goes for?
         A    I have no idea.
         Q    Well, do you have any idea whether somebody can just
         purchase Folio,put it on their disk and publish disks all they
         want to once they have paid the proper fee and become a
         registered user?
         A    I don't have any idea.
         Q    Did he say that he was going to pay you the same as he was
         paying Folio before or after he said that he was going to give
         you a thousand dollars and a dollar a disk?
         A    It was during the same time that he said that he was going
         to replace Folio for my program.
         Q    Now, you also testified that Richard said he didn't want
         a lot of features on his, on the retrieval program, right?
         A    That is correct.
         Q    What specific features did he not want on the program?
         A    The GIF file viewing was one of them.
                        THE COURT:  Excuse me, what?
                        THE WITNESS: The ability to view pictures.
         BY MR. KITCHEN:
         Q    You said the GIF file, G-I-F file?
         A    Right.  And he also told me that he didn't want a search
         feature which - - there's some features that's in the quick
         basic program that Richard said he didn't want, you know.  But
         they was in my program, I just didn't put them on the menu.
         Q    The programs he's had since, though, they had these
         features, right?
         A    Richard is doing a lot of development towards what I was
         trying to encourage him during those early days.
         Q    And, in fact, he does have the GIF, the picture view
         feature on his current programs; doesn't he?
         A    Yes. Some of the reasons he didn't want the features is
         because he didn't want people to - - I think he wanted to
         downplay what my retrieval was.
         Q    How do you know that?
         A    At the same time he said that he didn't want these
         features.  During the same conversation he used the words that,
         you know, Larry, people they're buying these disks just for
         your retrieval, it's stealing the disk.  I want to sell my
         disk.
         Q    Well, if he sold the one, wouldn't he be selling the
         other?
         A    That's the way I looked at it.  And that's why I tried to
         encourage him.  The way I tried to encourage him to look at it.
         Q    Now, did you testify that, essentially, you were the one
         who really wrote up the program that Jeff Anderson produced?
         A    No, I had nothing to do with whatever Jeff Anderson
         produced.
         Q    Well, didn't you testify that you had made it up before
         anybody else had ever done it and you had put it out on your
         bulletin board service?
         A    Put what out?
         Q    A program, a retrieval program?  And it was all over the
         place?  That was your testimony.  Do you recall that?
         A    No, I don't recall that.
         Q    Okay.  So, it's your testimony that you didn't really come
         up with the same retrieval program as Jeff Anderson had and
         actually put it out before Jeff did?
         A    That's correct.  In fact, I - -
         Q    So as far as you know Jeff Anderson, the program that he
         wrote or he and Richard wrote, whatever, was developed without
         any assistance from you?
         A    Whatever they worked on was independent of me.  It was
         done by two of my students, but it was very much independent of
         me.
         Q    Well, you say two of your students.  You're not saying
         that they wrote this program while they were students of yours
         and with your assistance, tutelage, are you?
         A    During that time Richard accepted me as teaching him and
         guiding him with programming.  The words teaching and tutoring
         him for literacy and academics was never in the picture.  Those
         words was never in the picture.  But the fact that I was
         teaching him things about computers and things, that was in the
         picture that was mentioned and  understood.   And those words
         was used that way, you know.  I never used the words student
         teachers with Richard, but I did use them with Jeff and I used
         them with a lot of other young computer users.  In fact, I use
         them with a lot of people, period, whether they're young or
         old.
         Q    Are you saying that you were involved in the development
         of the program that Jeff Anderson had?  That you were teaching
         him at the time and that while he was your student, he wrote
         that program?
         A    I never knew that Jeff was writing a program.  I never
         knew that Jeff had written a program.
         Q    Okay.  So he didn't ask you for any help?
         A    That's correct.
         Q    Now, you did put protection in your program that you wrote
         for Richard in the C language.
                        THE COURT:  In what?
                        MR. KITCHEN:  C language.
                        THE COURT:  C language.
         BY MR. KITCHEN:
         Q    What was the purpose of the protection?
         A    To protect my name.  To protect my copyright.  Just to
         protect my program.
         Q    Okay.  And that was really all it protected, right?  I
         mean, somebody could change anything else in the program, it
         wouldn't trigger the error message or anything.  It was just
         fooling around with your name or your compu-serve number,
         right?
         A    Right.  My identification, that's correct.
         Q    Okay.
         A    Larry James' identification.  Everything else is a
         variable and, according to the immediate customer I have at
         that particular time.
         Q    Now, you indicated that at some point or another Richard
         said that he would start paying you this dollar a disk
         commission in September, right?
         A    Yes.  He did say that it was going to start.
                        THE COURT:  In September?
                        THE WITNESS:  He didn't give a special, a
         specific time.  Some of the time he was saying when he gets on
         his feet, when he gets more money into - -
         BY MR. KITCHEN:
         Q    You don't remember testifying earlier that he said that he
         would start the commission in September of '9l?
         A    He didn't set a definite time.  He was saying when he get
         a certain amount of money.  When he gets his account up to a
         certain level.
         Q    Okay.  So he didn't say anything about September?
         A    He mentioned September but he didn't say directly that the
         commission was going to start right then.  But, of course, it
         was - -
         Q    Well, what did he say about September?
         A    I think he was supposed to do some publishing in
         September.
                        THE COURT:  What did he say?
                        THE WITNESS:  I don't know the words, but
         somewhere around that time span he was supposed to reach that
         goal.  So, it was somewhere around that time span.  He kept
         showing me his checkbook and it kept growing.  It might have
         been around in September.
         BY MR. KITCHEN:
         Q    Was that okay with you?
         A    Yes.
         Q    Your arrangement that you were trying to make with Robert
         Depew, that would have involved the same program that you wrote
         for Richard, right?
         A    At that particular time it was the same program.
         Q    Okay.  Just the change in the name, that's all?  It would
         be called Storm - -
         A    I already told you the name was a variable.
         Q    Right, okay.  And you would have gotten a thousand dollars
         for that plus a dollar a disk, right?
         A    That's correct.
         Q    And, theoretically, you could have sold this to any number
         of people who wanted to buy the program, they'd all have to pay
         a thousand dollars?
         A    That was all in the design.  And that was the profit I was
         to be making.  That was the million dollars I was to get.  That
         was all in the design.
         Q    Who wrote the documentation for these files?
         A    Who wrote those - - those text files?  They were written
         by people that upload the files and I did write - -
         Q    No, no, no, not the DIRs text.  Was there any
         documentation with the program that, you know, like a little--
         A    A retriever program?
         Q    Yeah, a little DOC file or read-me file or a file that
         told, you know, how to get started and what to do?
         A    Richard and I.
         Q    You both wrote it?
         A    It's kind of hard to remember.  He kept asking me.  He
         kept pressuring me to write it.  He kept pressuring me to write
         documentation.  And my response was that documentation, it's in
         the program.  With viewer friendly, you don't need any docs.
         He just asking me to.  And I think I wrote a couple of
         sentences.  I just wrote a couple of elements down and gave it
         to him.
         Q    Did he consider that adequate?
         A    He did consider that adequate.  But he did - - the reason
         I say Richard and I, because he - -
         Q    He added to it?
         A    Yes.
         Q    He added a whole lot to it, right?
         A    I really don't - - I really don't - - I never paid any
         attention.
         Q    Well, there's a lot more in those documentation files now
         than just a couple of sentences, right?
         A    I wrote about eight paragraphs.
         Q    A couple of sentences and now it's eight paragraphs?  What
         happened to a couple of sentences?
         A    I said I wrote a couple - - a few sentences.
         Q    Maybe they run-on paragraphs and they take, run-on
         sentences that take several paragraphs to get through the
         sentence; is that what you're saying?
         A    What I did was gave a brief overview of the commands.  And
         to tell the truth what I kind of did, was just wrote out the
         help file.  The help file.  You know, when you press F-l or hit
         a high key it will give you a command.  I did write a couple of
         sentences and I gave him the same help file, that the person
         gets just by hitting the help option.
         Q    Okay.  You indicated there were some hidden options in the
         program you provided to - -
         A    Not hidden.
         Q    Didn't you use that term?  Didn't you, on direct
         examination, didn't you say something about that there was some
         hidden options that you had that were not turned on?
         A    Well - -
                        THE COURT:  I think you mentioned that a moment
         ago, didn't you?  That there were some features that weren't
         screened or brought up?
                        THE WITNESS:  Right, right.  They weren't
         hidden.  I just didn't give them because he wasn't looking for
         them.
         BY MR. KITCHEN:
         Q    Oh, but you said that they were actually written.  They
         were in the source code.  They were in the program.  But they
         weren't operative.
         A    Yes.
         Q    Is that true?
         A    That's correct.
         Q    What features did you have that were in the source code
         that was provided but was not - - were not turned on, were not
         active?
         A    A lot of - -
         Q    Well, name one?
         A    Hard drive accessibility.
         Q    The what?
         A    The ability to use the hard drive rather than the CD ROM,
         you know, for your media.
         Q    That's a feature?
         A    I don't know what you're trying to get to?  I mean - -
                        THE COURT:  Does feature mean anything to you?
              Is it a technical word that means something in computers?
                        THE WITNESS:  Yes.  Wait a minute. Okay.
                        THE COURT:  Is it something that means something
         in computers?
                        THE WITNESS:  Yes.
                        THE COURT:  All right.  Then you can answer the
         question.
                        THE WITNESS:  Yes, that's a feature.
         BY MR. KITCHEN:
         Q    Okay.  Was that the only feature that was in the program
         but wasn't operable?
         A    No.  To tell the truth I would probably have to study
         whatever I provided for him.  I have to study whatever I
         provided.
                        THE COURT:  As you sit here now you don't know?
                        THE WITNESS:  Right, right.  At the time - -
                        THE COURT:  Well, just say I don't know.
                        THE WITNESS:  Right.  Right.  I don't know.
         There were a number of them but I don't know.  I couldn't
         recall them.
         BY MR. KITCHEN:
         Q    Well, maybe I could suggest a couple of features to you
         and you can tell me if they were - - how about the ability to
         format a floppy disk?
                        THE COURT:  Ability to what?
                        MR. KITCHEN:  To format a floppy, while you're
         in the program.  Was that a feature?
                        THE WITNESS:  No to probably your next ten
         questions.
                        MR. OSTROWSKI:  I'm wondering if Counsel - - I
         mean, he's been asking questions about programs for about
         twenty minutes.  I have no idea of what programs he's talking
         about.  Could he at least refer - -
                        THE COURT:  Luckily you don't have to, but as
         long as your witness does, you can consult with him after and
         he can educate you.
                        MR. OSTROWSKI:  But, Your Honor, Mr. James is
         going to speculate as to which program Mr.Kitchen is talking
         about.
                        THE COURT:  Well, you've already told him he's
         not to speculate; haven't you?
                        MR. KITCHEN:  Well, yes.
         BY MR. KITCHEN:
         Q    I'm referring to - - well, let me try and pin it down.
         I'm referring to the program that was written in the C language
         that was - - that ended up with Mr. Graham just before you
         left, basically, okay?  The one from the summer of '9l.  Well,
         did it have, for example, mouse support?
         A    No.
         Q    It didn't have sound or anything; did it?
         A    Yes.
         Q    It did have sound?
         A    Yes.
         Q    Was that a hidden feature or - -
         A    No, it wasn't hidden.
         Q    Okay.  How about the search?  Did it have a search
         feature?
         A    Yes.
         Q    Okay.  Did the search feature, was that internal or did it
         utilize DOS to effect a search?
         A    Everything is DOS.
         Q    Well, I mean, did it use the DOS search feature?
         A    No, it didn't.
         Q    Okay.  And did it view GIF files, the picture files?
         A    That's not something I provided for Richard.
         Q    Okay.  Did it have the jumping scroll bar, I mean, you
         know, where you jump from item to item rather than moving line
         by line?
         A    I consider that a bug, no, it didn't have that.
         Q    Okay.  Well, all right.  So, we're not hitting anything
         here.  Did - - there's nothing you can think of in terms of a
         feature that was incorporated into your program that you gave
         Richard, but is not - - or wasn't active?
         A    Well, I - - there was a way to make labels for public
         domain floppy disks.
         Q    Make labels?
         A    Yes.  Well, make a file list of, you know, tags, items,
         that a person would pull off their media, when I pull them off
         my hard drive to make a floppy.
         Q    Or like the tagging or marking feature that we've seen on
         some of these programs?
         A    Yes.  If you hit - - there's a feature to pull out a file
         list and that it creates an individual list for producing disk
         labels.
         Q    That's on the program, but it was not active?
         A    It's on the program and it's unlikely that I accessed it
         because Richard had no use for it.
         Q    Okay.  And what's the name of that module that does that?
         A    It's part of my copy, copier.
         Q    Okay.  It's in the copy module?
         A    Yes.
         Q    Okay.  Now, Richard had, of course, permission to utilize
         your - - the program that you initially provided for him in
         quick basic, right?  Let me rephrase that.  It was not
         infringement for him to utilize that on his CD ROM, correct?
         A    On the CD ROM, that particular version it was on, that's
         correct.
         Q    Okay.  The one that was written in C, he also had
         permission to use that, right?
         A    That's correct.  On his initial version that he has
         subscribed to, that's correct.
         Q    So, at what point are you - - is it your position that he
         started to infringe?
         A    I've never really challenged or said that he infringed.
         He had a contract that I just hoped he would honor.
         Q    All right.  So is it your position now, really, that the
         essence of your counter-claim is really just the fact that he
         didn't pay what was agreed, this thousand dollars a version
         plus a dollar a disk?
         A    He also had no permission to make my very personal source
         files privy to anyone.
                        THE COURT:  Thereby infringing?
                        THE WITNESS:  Yes, Your Honor.
         BY MR. KITCHEN:
         Q    Well, who has profited from this, of seeing your source
         code other than Richard, himself?
         A    A lot of people.  You know that college professor that
         said that he designs the right utility to do things, you know,
         I don't know if he writes all the hundreds or thousands of
         programs he said he did.  I think he said thousands.  I said
         hundreds or thousands, but I think he said thousands.  But,
         anyway, he acts like he was so much in awe of the output that
         was on the screen and the things that I put together, you know,
         I use very simple commands and structure and this and that, and
         I did something that he describes as magnificient and just
         majestic.  He really described it with all those elements.  And
         then he analyzed - -
         Q    Did he do that recently?
         A    And then he opened up and looked at my personal source
         code and decided to consider it child's play.  But, the things
         I do may be child's play.  Almost anything I do, you know.  But
         it's the output on the screen that makes a difference.  It's
         how it makes the user feel.  It makes the user happy.
         Q    You were questioned about the checks that you got and you
         indicated that the check you got, that was part of Plaintiff's
         Exhibit l2, the specific check dated July l9th, l99l, that you
         were given that because you were short and needed some cash,
         right?
         A    That's correct.
         Q    And did you consider that to be a gift or as part-payment
         of what was owed to you?
         A    I really considered it to be - - well, actually, I asked
         for it as a loan and Richard told me that it was a payment
         towards my fee.
         Q    Okay. Didn't you testify on direct examination, though,
         that you said Richard said that you shouldn't bother to pay it
         back?
         A    He said that it would come out of my fee, would be part of
         my fee.  When I asked Richard for something, everytime I asked
         him for it he gave it to me and he told me that he was going to
         take it out of the money, the millions of dollars that I was
         going to get for my commission.
                        THE COURT:  Who was talking about millions of
         dollars?
                        THE WITNESS:  Richard.
         BY MR. KITCHEN:
         Q    While you were working, did you ever spend anytime at
         Richard's working on his computers at all?
         A    Beg your pardon?
         Q    Did you ever spend anytime at Richard Graham's using his
         computers?
         A    Yes.
         Q    And did you have occasion at anytime when you were at
         Richard's to communicate with your own bulletin board at your
         own house?
         A    All the time.
         Q    And did you use that occasion to upload certain files or
         programs from Richard's computer to your computer?
         A    I did at one time.
         Q    Okay.
         A    I used the download files.
                        THE COURT:  Used what?
                        THE WITNESS:  I usually would - -
                        THE COURT:  What did you say?
                        THE WITNESS:  Download.  Retrieve the work that
         I would do, you know, the previous night.
                        THE COURT:  You downloaded it from his computer
         to - -
                        THE WITNESS:  From my computer - -
                        THE COURT:  Excuse me.  You downloaded it from
         his computer to your bulletin board?
                        THE WITNESS:  The other way around, Your Honor.
                        THE COURT:  Oh, all right.
         BY MR. KITCHEN:
         Q    And by the way, when we talk about downloading, we're
         usually talking about receiving a program from another computer
         over a modum?
         A    That's correct.
         Q    And when we talk about upload, we're usually talking about
         sending a program or file from the computer you're on to
         another computer, via modum?
         A    That is correct.
         Q    Okay.  So you, essentially, uploaded some of the programs
         that were on Richard's hard drive and you uploaded them to your
         computer at home, right?
         A    I would retrieve the work, you know, that I had done the
         previous night to - -
                        THE COURT:  Retrieve from?
                        THE WITNESS:  From my computer.
         BY MR. KITCHEN:
         Q    Well, did you ever do it the other way around?  Did you
         ever send programs from Richard's computer up to your computer?
         A    I did once.
         Q    Okay.  What programs did you send up there?
         A    Borland C plus plus.  I sent that one time.  In fact, it
         was only once I did send Borland C plus plus.
         Q    Okay.  Were those the only ones?
         A    As far as I can recall.  There may have been a few files
         but mainly I was bringing my work from home towards that
         computer.  If I forgot a tool, most of the work I had on floppy
         disks or my lap top.  And if I ever needed a tool I would
         retrieve it from my system.
         Q    Okay.  I'm going to show you an exhibit.
                        MR. KITCHEN:  This will be a new exhibit, Your
         Honor.  This is Plaintiff's Exhibit 69 and it can be just
         characterized as a Q modem, that's Q m-o-d-e-m log.  And let me
         show this to the witness.
         BY MR. KITCHEN:
         Q    Okay.  If you would look at - -
                        THE COURT:  Is that the letter "Q" or "Cue"?
                        MR. KITCHEN:  C-u-e - - or, excuse me, letter
         "Q".
         BY MR. KITCHEN:
         Q    If you would look at that, do you recognize from looking
         at the format of Plaintiff's Exhibit 69, Mr. James, as to what
         that might be that you're looking at?
         A    Oh, yeah, it's a transcript of files of communication
         between my computer and Richard's computer.
         Q    Is that a print-out of the log?
         A    It is.
         Q    Okay.  Can you tell us what a log is?
         A    It's - - I just said, a transcript of elements, of
         activities.
         Q    So, in other words, if there was uploading and downloading
         and that sort of thing the computer, somehow, keeps track of it
         and stores it in a file called a log?
         A    That is correct.
         Q    And you can print-out or save this log at anytime and look
         at it, right?
         A    That is correct.
         Q    Okay.  And does it show what date that this would have
         been done?
         A    The log is somewhat detailed and the date is included,
         yes.
         Q    Okay.  What's the date on that one, Plaintiff 69?
                        THE COURT:  Doesn't cover a period of time?
                        MR. KITCHEN:  Might be one date, Your Honor.
                        THE WITNESS:  One of the times this offer says
         is l980.  But it seems to be from 903 to 829.
                        THE COURT:  What does that mean?
                        MR. KITCHEN:  So we have a couple of different
         dates.
                        THE COURT:  Excuse me, what does that mean, if
         anything?
                        THE WITNESS:  Actually, I think some of these
         times or some of these dates - -
                        THE COURT:  Those two, three digit numbers refer
         to dates?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  What, for example, does 829 refer
         to?
                        THE WITNESS:  Actually, Your Honor. I went a
         page too far.   I think it's from 903 to 923.
         BY MR. KITCHEN:
         Q    You mean like September 3rd to September - -
         A    Yes, in '9l, yes.
         Q    - - 23rd or something like that?
         A    Yes.
         Q    And is the activity that's shown on those logs is that
         your activity?
         A    I would say it most likely is.  It probably is.
         Q    So where it shows that you uploaded something or
         downloaded something, that's something that you actually did?
         A    Yes, most likely.
         Q    Are there any commercial programs that you uploaded or
         downloaded or let me withdraw that.  Are there any commercial
         programs that you uploaded from your - - from Richard's
         computer up to your computer?
         A    Borland C plus plus.
         Q    Okay.  Now, that was not lawful, was it?
         A    What you said is not a true statement.
         Q    Well, it was a question?
                        MR. OSTROWSKI:  I object to the witness being
         asked legal questions.
                        THE COURT:  He may answer.
                        THE WITNESS:  No.  You're incorrect.  That was
         very much lawful.
         BY MR. KITCHEN:
         Q    That was lawful.  Were there any other commercial programs
         other than Borland C plus plus that you uploaded to your own
         computer?
         A    Not that I know of.
         Q    Okay.
         A    I haven't studied this in detail.  Can you point out
         something?  If you're inclined to study it, I'll look at that
         particular item and maybe comment on it?
         Q    Well, it might take a minute.
         A    But I will tell you concerning that Borland C plus plus
         situation.  I communicated - - I was communicated on compu-
         serve daily and I communicated to the people that wrote the
         Borland C plus plus and they told me it was very legal to use
         that compiler on more than one computer, as long as it was one
         person using it.  And I was the only person using it.  I was
         using it on two different computers.
         Q    Okay.
                        MR. KITCHEN:  I'll offer Plaintiff's 69, Your
         Honor.
                        MR. OSTROWSKI:  I object on the grounds of
         relevance.  There's been minimal testimony about it.
                        MR. KITCHEN:  Well, Your Honor, I think it's
         extremely relevant, particularly when we think in terms of the
         issue of Mr. James' status, vis-a-vis - -
                        THE COURT:  Is it an intelligble presentation to
         a lay person, such as myself?
                        MR. KITCHEN:  Are you saying it was?
                        THE COURT:  I say, is it?
                        MR. KITCHEN:  Is this?  Yes, sir, particularly
         with the assistance of testimony which will - -
                        THE COURT:  That's what I mean.  It needs
         testimony.
                        MR. KITCHEN:  Well, yeah, but not a great deal.
                        THE COURT:  Not a great deal?  How much is
         needed and do we have it already?
                        MR. KITCHEN:  Well, I am planning on having Mr.
         Graham make some specific testimony using this document.  So,
         you know, if it's not admitted now, it will be offered later.
                        THE COURT:  Well, I don't want to admit it into
         my mind and calculator until I can understand it.
                        MR. KITCHEN:  Okay.
                        THE COURT:  So, objection sustained without
         prejudice.
                        MR. OSTROWSKI:  I'll also be objecting to Mr.
         Graham's testimony as beyond the scope.
                        THE COURT:  Well, you object to it when it
         happens.
                        MR. OSTROWSKI:  I'll object to it at that time
         as out of order.
         BY MR. KITCHEN:
         Q    The tape, Plaintiff's l6, the tape of the telephone
         conversation.  Now you recall the telephone conversation,
         right?
         A    Yes, I do.
         Q    You were awake when Mr. Graham called you that night?
         A    I wasn't awake.  Yeah, the phone woke me up, so I was
         awoke.
         Q    Oh, okay.  So, you were awaken out of a sound sleep, as we
         might say?
         A    By the telephone ring, yes.
         Q    All right.  But you recall the substance of the
         conversation, right?
         A    Yes, I do.
         Q    And you recall everything that was said, so much so, that
         when you heard the tape you knew that when there was a little
         noise there, that that meant that you were missing, that
         something was missing from the conversation?
         A    Yes.
         Q    Okay.  And what you remember missing from the conversation
         was that Richard said, well look - - what did he say?  That
         missing - - those missing words?  What were they?
         A    He acknowledged That the commission was coming when his
         disks were manufacturing better.
         Q    Okay.  And what was said just before that?
         A    I just gave you what was being said - -
         Q    Well, we know what was said during the glitch.  What I'm
         asking you is what was said - -
         A    Now I'm saying what was being said during the verbal - -
         Q    I understand.  I understand.  You told me the missing
         information, what was said during that glitch, okay, which we
         can't hear on the tape because the glitch is there.  What I'm
         asking you now is what was said before the glitch, just before
         the glitch?
         A    I did say - -
         Q    Do you remember the words?
         A    I don't remember the exact words.  I did say something to
         the effect - -
         Q    Do you remember, specifically, what occurred before,
         before the glitch?
         A    Yes, I remember specifically.  I can't tell you word-for-
         word, but I can tell you what was said.  I could tell you the
         whole thing that was being said.
         Q    Well, I just asked what was said before the glitch?
         A    He was responding to my reiteration that he owes me money
         and I should be paid.  And he was telling me, he was reminding
         me that he told me time and time again that I'd get my
         commission when the disk manufacturing was better.
         Q    That's what he said before the glitch?  That's on the
         tape?  Before the glitch?
         A    Before the glitch I did say - -
         Q    I want to know what the words are before the glitch.
         A    I did say - -
                        THE COURT:  Wait a minute.  One at a time,
         please.  Ask a question.
         BY MR. KITCHEN:
         Q    I want to know what was said just before that little
         glitch happened.
         A    I did say the words, these words were said, I did say.
         Q    And what preceded - -
                        THE COURT:  I did say?  Quote "I did say"
         unquote?
                        THE WITNESS:  Yeah.
                        THE COURT:  Just those words?
                        THE WITNESS:  I don't remember it word by word,
         but those are some of the words, I did say.
                        THE COURT:  I dare say?
                        THE WITNESS:  I did.
                        THE COURT:  I did say.  Are you telling me the
         words you say or say, I did say such and such?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  Which?
                        THE WITNESS:  I - -
                        THE COURT:  Are you telling me that you did say
         something?
                        THE WITNESS:  No.  I'm saying the words were, I
         did say.
                        THE COURT:  "I did say," quote, unquote.
         BY MR. KITCHEN:
         Q    Do you remember what your words were just before the words
         "I did say"?
         A    I remember my concept.
         Q    Well, I'm looking for words more, if you can give them to
         me, but - - well, how about after the glitch?  What was talked
         about right after the glitch?
         A    I can probably - -
         Q    Do you remember?
         A    After the glitch, faster and better.
         Q    Those were the words?
         A    Those were some of the words.
         Q    And they were from you?
         A    Oh, what did I say?
         Q    Well, what occurred right after the glitch?  You said the
         words, "faster and better" appear after the glitch?
         A    Yes.
         Q    And whose words were they?
         A    Richard's.
         Q    They were Richard's.  So the words before the glitch were
         your words, which - -
         A    No, they were Richard's words.
         Q    Oh, they were Richard's words, not your's?
         A    That's correct.
         Q    And the words, "I did say" and the words after the glitch
         are "faster and better"?
         A    Yes.
         Q    Okay.  What were the words that occurred during the glitch
         that preceded the words "faster or better"?
         A    I probably can't answer because I can't tell you the exact
         words, in fact, I can't tell you - -
                        THE COURT:  You don't remember?
                        THE WITNESS:  I remember the conversation - -
         BY MR. KITCHEN:
         Q    You don't remember the words, though?
         A    I don't know the exact words, but I know what was said.
         Q    Well, how about the words - -
         A    The reason I know what was said is because he was
         reminding me what he said so many times.
         Q    All right.  You're giving me an analysis and I really - -
         you know.  If you remember them, fine, if you don't, fine.  All
         right.  What did he say after the words "faster or better"?  I
         mean that's on the tape.  Do you remember what the words were
         after the words "faster or better"?
         A    That I would be paid.
         Q    That's what he said after - -
                        THE COURT:  "Faster and better'' you and "I will
         be paid"?
                        THE WITNESS:  Those are some of the words.  I
         mean, I remember the conversation, the conversation - -
                        THE COURT:  Mr. Graham wouldn't have said, "And
         I would be paid"; would he?
                        THE WITNESS:  That you will be, you will be
         paid.
                        THE COURT:  That you will be paid?
         BY MR. KITCHEN:
         Q    That's what appears on the tape after the words "faster or
         better"?
         A    I'm remembering the conversation.  To tell the truth, I'm
         remembering the conversation without the break.  It's hard for
         me to say what happened before the break and what happened
         after the break.  I'm just plain remembering the conversation,
         period.
         Q    Okay.  Have you heard this tape?  You heard it in the
         courtroom, right?
         A    Yes.  I heard it in the courtroom.  I heard it once
         outside of the courtroom.
         Q    Okay.  In fact, you heard it in a courtroom, what back in
         December of '9l, didn't you hear it then?
         A    Yes.
         Q    And you heard it again since we gave a copy to your
         attorney, right?
         A    Yes.
         Q    Okay.  So, you've heard it a couple of times then?
         A    Yes.
         Q    But it's your testimony now that, essentially, your
         recollection of the conversation which originally occurred is
         clearer than your recollection of what's on the tape?
         A    That - -
         Q    Is that true?  Yes or no?
         A    Right.  Because it was an - -
         Q    Okay, thank you.
         A    - - emotional situation when it was happening.
         Q    Yeah, okay.  You don't have to give me the analysis, just
         the yes or no is good.  Now, what program were you going to use
         as a file retrieval on the disk, on the CD ROM disk that you
         were going to market with Nick Costantino?
                        THE COURT:  As what?
                        MR. KITCHEN:  He was going to market with Nick
         Costantino, that CD ROM disk.  What retrieval program were you
         going to use?
                        THE WITNESS:  The same one that - -
         BY MR. KITCHEN:
         Q    That Richard had?
         A    Yes.
         Q    Okay.
         A    And what's why I never did do it.
         Q    Because of the injunction?
         A    Right.  In fact, he's still waiting.
         Q    Why didn't you - - oh, okay.  So, Mr. Costantino is ready,
         willing and able to go forward with this project?
         A    That's correct.
         Q    Now, why didn't you just simply use the same program that
         you wrote from scratch for Greg Armenia?
         A    Because I had promised him that particular - -
         Q    Promised who?
         A    Nick Costantino.
         Q    Uh-huh.
         A    I promised him something specific.  I showed him a
         product.  I showed him a direct product and I gave him the
         program and said this is what we're going to publish.
         Q    And what you gave him was what you had given Richard?
         A    Right.  And I never took it back and I never did go.  I
         just told him we'll proceed after this is over.
         Q    Would it be that - -
                        THE COURT:  Excuse me.  Is it Constantino or
         Costantino?
                        MR. KITCHEN:  I think it's Costantino.
                        THE COURT:  C-o-s?
                        MR. KITCHEN:  Yes.  He's an attorney, Your
         Honor.  It's probably in the directory.
                        THE WITNESS:  You're very right.  I guess I
         probably could go and approach him about a new program and a
         whole lot of different stuff.  In fact, Costantino, himself,
         asked me to collaborate with his programmer.
         BY MR. KITCHEN:
         Q    No reason you couldn't go to him and say, hey, Nick, this
         retrieval is a little different than the one I originally
         showed you, but it's better and it was written from scratch so
         there won't be any problems.  And we'll go ahead with it,
         right?
         A    I probably could do that, but I haven't chose to do that.
         Q    Okay.  And, of course, if you did go ahead with that
         project you'd make a million dollars?
         A    I would have at that particular time.
         Q    You don't think you'd make a million now?
         A    It would be a whole lot harder now.  A disk at that
         particular time was retailing for, a - - PC sig (sic) was
         selling theirs for five hundred dollars.  Right now PC sig
         (sic) is selling their disk for around thirty-nine dollars.
         Q    Now, you indicated that Greg Armenia has paid you a total
         of about fifteen hundred dollars.  Was that in cash?  I mean,
         was that in money or was that in merchandise?
         A    That's in money, in money only.
         Q    Okay.  So, in addition you've received a number of disks?
         A    I heard Greg's testimony and - -
                        THE COURT:  Just answer the question, regardless
         of what he said.
                        THE WITNESS:  It was fifteen hundred dollars in
         money.
         BY MR. KITCHEN:
         Q    Have you ever received disks from Greg Armenia?
         A    Yes, I have.
         Q    How many?
         A    Probably, maybe a hundred.  I haven't even counted them.
         Q    About a hundred disks?
         A    It was a couple of boxes.  I don't even know how many is
         in the box.
         Q    Did you consider those to be in partial payment?
         A    No.
         Q    Well, what are they then?  Were they a gift?
         A    Yes.
         Q    A gift?
         A    Yes.
         Q    Have you sold them?
         A    No, I haven't.
         Q    Have you sold any of them?
         A    Yes, I have.
         Q    What do you sell them for?
         A    Around thirty-nine dollars.
         Q    What's the retail price on that?
         A    I'm not sure.  I'm not a retailer with the CD ROM disk.
         But - -
         Q    Well, you run that - -
                        THE COURT:  You don't know - -
                        THE WITNESS:  Actually - -
                        THE COURT:  Excuse me.  You don't know the
         retail price?
                        THE WITNESS:  Right.  I don't - -
                        THE COURT:  All right.  Just - -
         BY MR. KITCHEN:
         Q    You run that table out at the flea market that's a retail
         sales place; isn't it?
         A    Selling CD ROM disks is not our specialty.
         Q    Well, you sell other software there, don't you?
         A    No.  Shareware, yes.  My shareware disks is three dollars
         a disk.
         Q    Your what?
         A    My shareware disks, are three dollars a disk.
         Q    Okay.  So you're selling shareware disks there.
         A    Yes.
         Q    Do you sell CD ROMs there, too?
         A    I already told you, yes, for thirty-nine dollars.
         Q    Do you have them on display and you sell them for thirty-
         nine dollars?
         A    Thirty-nine, yes.
         Q    How many of those have you sold?
         A    Maybe around ten.
         Q    Okay.
                        THE COURT:  We'll take an interruption whenever
         you can tolerate that, Mr. Kitchen?
                        MR. KITCHEN:  Well, I can tolerate it right now,
         Your Honor.
                        THE COURT:  All right.  Thank you.
                        (Recess Taken - 2:42 P.M.)
                        (Resume -  3:05 P.M.)
                                CROSS-EXAMINATION(CONT'D)
         BY MR. KITCHEN:
         Q    Okay, Mr. James, this disk that you were going to, and
         maybe still will publish with Mr. Costantino - -
                        THE COURT:  With whom?
                        MR. KITCHEN:  With Mr. Costantino.
         BY MR. KITCHEN:
         Q    Where are you going to get the software for it?  Where are
         you going to get the programs?
         A    Out of my head.
         Q    You mean this is not going to be a shareware disk?
         A    Oh, where will I get the program?
         Q    Right.
         A    Off of my BBS.
         Q    Okay.  Do you have A.S.P. approval for that?  To do that?
         A    You know - -
         Q    That's a yes or no question.
         A    No.
         Q    Okay.  Have you applied for it?
         A    No.
                        THE COURT:  What approval?
                        MR. KITCHEN:  A.S.P.
         BY MR. KITCHEN:
         Q    Do you know what A.S.P. stands for?
         A    Yes, I do.
         Q    What does it stand for?
         A    Associated Shareware Publisher.
         Q    Okay.
                        THE COURT:  What is it?
                        THE WITNESS:  Association of Shareware
         Publishers.
         BY MR. KITCHEN:
         Q    Let me just show you Plaintiff's 69 again.  Does that
         indicate that you not only uploaded something such as Borland
         C plus plus but does it also show certain commercial programs
         that you downloaded from your computer to Richard's computer?
         A    It does.
         Q    Okay.  Is one of them QEMM60?
         A    Yes.
         Q    What program is that?
         A    That's - - by the way, you just indicated that this is not
         an accurate log.  This - -
                        THE COURT:  Can you answer the question?  You
         say it indicates that but it's not accurate?
                        THE WITNESS:  Right.  That's a program that was
         released a few months ago, a little while ago.  It's very
         recent.  It's more recent than this log is.  So, I don't know -
          - I can't verify things in this, but I do own a desk view and
         that's the utility that goes with one of the programs I use on
         my system.
         BY MR. KITCHEN:
         Q    Isn't GEMM stand for quarter deck extended memory matter?
         A    Yes, it does.
         Q    And that's a commercial program, right?
         A    It is a commercial program, but I didn't download that and
         that wasn't out at that particular, during the log time.
         Q    This shows that - -
                        THE COURT:  Now, you're saying, what, you did
         not download it?
                        THE WITNESS:  Right.
                        THE COURT:  You did not download it?
                        THE WITNESS:  That's correct.
                        THE COURT:  The log is wrong in that regard?
                        THE WITNESS:  Right, right, that's - -
                        THE COURT:  All right.  Just answer the
         question.
         BY MR. KITCHEN:
         Q    Okay.  And how about here; X- Tree (sic) Gold?  You
         downloaded X- Tree (sic) Gold, right?
         A    I'm not - - it was a little while ago and I don't know
         where this list came from or where it was compiled from?
                        THE COURT:  Did you or did you not or don't you
         remember?
                        THE WITNESS:  I don't remember.
                        THE COURT:  All right.
         BY MR. KITCHEN:
         Q    What does X-  Tree (sic) Gold, by the way?
         A    It's a utility.
         Q    Is it a commercial program?
         A    Yes, it is.
         Q    It wouldn't be lawful for you to download that; would it?
         A    If I owned it, it would be my volition to sort my files as
         I please.
         Q    Well, would it be lawful for you to transfer it over to a
         different computer?
         A    If I decided to use a different computer.
                        THE COURT:  Is this a one-person - - many
         computers, as long as they're one person?
                        THE WITNESS:  I would - -
                        THE COURT:  Is that accurate?
                        THE WITNESS:  I'm not sure that I would take the
         law on that one.
                        THE COURT:  That's not that situation?  You
         mentioned that situation before.
                        THE WITNESS:  Right.  I was familiar with the
         elements - -
                        THE COURT:   With the Borland C plus plus?
                        THE WITNESS:  Yes, Your Honor.  I was concerned
         about that particular program.  But I don't know about these
         other things you have on there.
                        THE COURT:  If you don't know, just say I don't
         know.
         BY MR. KITCHEN:
         Q    Well, are you acquainted with Norton Utilities?
         A    Yes, I am.
         Q    Are you acquainted with X - Tree (sic) Gold?
         A    Yes, I am.
         Q    Okay.  And you're also acquainted with Quarter Decks
         Extended Memory Manager?
         A    Yes, I am.
         Q    Okay.  Now, those don't come in zip versions, do they?
         A    No, they don't, not per se.
         Q    So if somebody was going to put them in a zip version they
         would have to zip them up first; wouldn't they?
         A    That is correct.
         Q    And that's what you did, essentially; didn't you?
         A    The files, that log that you have right there, I really
         don't know where that log is derived from.  It's something that
         was edited on somebody's text file.  See, right here you have
         l99l - -
         Q    Wait a minute, wait a minute, you're not even answering
         the question.  You're not even trying to here.  Look at the
         volume that's here in the second pack under Plaintiff's Exhibit
         9.  There's a whole list of - -
                        THE COURT:  Plaintiff's 69?
                        MR. KITCHEN:  Yes, sir.
         BY MR. KITCHEN:
         Q    And it's a directory of a number of zipped programs.  You
         made up those zip files; didn't you, out of programs that you
         had on your computer?
         A    No.
         Q    You didn't do that?
         A    No.
         Q    You didn't do those on your computer and then call when
         you were over at Richard's house and download those onto
         Richard's computer?
         A    I don't even know what pon-zip is.
         Q    You didn't do that or did do that?
         A    No, I didn't do that.
         Q    You didn't do that?
         A    That's something Richard did.
         Q    Okay.  So are you saying that you were not over at
         Richard's on September 3rd and September 4th, l99l?
         A    During those time spans I was over at Richard's house but,
         apparently, those are - - I don't know how much of those things
         is transcripts of Richard's communications to my computer.
         Q    But this log is - - first of all, this is connected to
         your computer; isn't it?
         A    Right.  Rich has an account on Apollo 3.
         Q    Okay.
         A    And he still has a current account.  The same account he
         always had.
         Q    Well, let me ask you this, though:  Even if he had access
         to your computer at your bulletin board service- - -  first of
         all, are you a registered user of X-Tree(sic) Gold?  Are you a
         registered user of X-Tree Gold?
                        MR. OSTROWSKI:  I object on the grounds of
         relevancy.
                        THE COURT:  He may answer.
                        THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q    Are you a registered user of Norton Commander?
         A    It's not registered in my name.  It was given to me by a
         computer club member who no longer uses this computer club
         member pass.  And he did give it to me.
         Q    So the answer is, no, you're not a registered user?
         A    Well - -
         Q    How about QEMM?
         A    Yes.
         Q    You're a registered user of that?
                        MR. OSTROWSKI:  I'm going to object on the
         grounds of relevance.  Registration doesn't - -
                        THE COURT:  I don't know what it means and you
         can't testify.
                        MR. OSTROWSKI:  Registration, Your Honor does
         not mean that you can't use the program.
                        THE COURT:  You may bring that out on redirect.
         BY MR. KITCHEN:
         Q    How about DOS 5.0?  Are you a registered user of DOS 5.0?
         A    I have a registration card that I never I sent in.  Do you
         want me to bring it to you?
         Q    No, no.  I mean if you bought the program and didn't
         bother to send in the registration - -
         A    I have a stack about this high of  - -
                        THE COURT:  How high?
                        THE WITNESS:  About this high.
                        THE COURT:  Three inches?
                        THE WITNESS:  Yes.  I have a big stack of
         registration cards.  I hardly ever send them in.
         BY MR. KITCHEN:
         Q    All right.  So you bought the - -
         A    In fact, I never send them in.
         Q    So you bought DOS 5.0 but you haven't bothered to
         register?  We talked about that before and I guess that's no
         big deal.
         A    That's correct.
         Q    Okay.  Well, I just want to - - but that's different from
         not being a registered user of X-Tree Gold because you never
         bought the program yourself; isn't that true?
         A    I would say that's different.
         Q    Okay.  Well, how about the QEMM?  Did you buy QEMM and
         register it?
         A    I bought the package.
         Q    Uh-huh.  So you could use them on your computer, right?
         A    You asked me about programs that I use - -
         Q    So you could use them on your computer; couldn't you?
         A    I could use them on my computer.
         Q    All right.
         A    That lists of files - -
         Q    And - -
         A    - - did not come from - -
         Q    - - but you weren't authorized - -
         A    - - my computer.
                        THE COURT:  Wait a minute, please.  The matter
         is getting out of control.  If you want a yes or no answer,
         please put it in your question.
         BY MR. KITCHEN:
         Q    But you weren't authorized to transfer these down to
         Richard's computer; were you?
         A    I didn't.
         Q    You didn't do that?
         A    Yes.
         Q    Somebody else did it?
         A    To tell the truth, I don't even know if they was even
         transferred from my computer.  It's just a text file that
         somebody edited and created and gave to you.
         Q    Well, you said before it seemed to be accurate and that
         you were there during these dates.
         A    Yes, I was looking at the dates and I do recall using a
         computer but some of the text files that you have showed to me
         are some of those zip files that you have named to me.  No,
         they didn't come from my computer.
         Q    One thing is for sure, though, they seem to at least
         indicate that they came from your computer, right?  Whether you
         did it or somebody else did it, they came from your computer?
         A    Right there in l980, I didn't even have a computer.
                        THE COURT:  Wait a minute, please.  Wait a
         minute, Mr. James, you have to wait for the question and then
         supposedly he'll wait for the answer unless your answer is too
         long.
         BY MR. KITCHEN:
         Q    Okay.  But, in fact, they apparently came from your
         computer because that's what the log indicates, right?
                        MR. OSTROWSKI:  Your Honor, I object to any
         further questions about this exhibit.  It's not in evidence and
         it has not been identified by the witness.  He's disputed its
         reliability and accuracy and its origination.
                        THE COURT:  It has not been admitted because in
         the form it is without testimony about it, it's unintelligible
         to the tryer of facts and the questioning, I think, leads to
         that end of making it intelligible; I'm not sure.  I'll
         overrule it.
                        MR. OSTROWSKI:  He's repudiated it, Your Honor.
                        THE COURT:  Pardon me?
                        MR. OSTROWSKI:  He's repudiated the accuracy and
         reliability of this record.
                        THE COURT:  I know, but that's a different thing
         from my understanding it.  And I can't understand it in its
         naked form.
         BY MR. KITCHEN:
         Q    This log does indicate that whoever did the downloading
         did it from your computer, correct?
         A    That would appear that way.
         Q    Okay.  Now, this could be done by anybody who calls up
         your computer on the bulletin board service, right?
         A    Looking at that, that would appear that way, but it
         couldn't happen.
         Q    Uh-huh.  But you don't keep either XT Gold and QEMM on
         your bulletin board service so that they can be downloaded by
         anybody; can you; do you?
         A    No, I don't.
         Q    The only thing you put on your bulletin board service is
         shareware and things that can be freely downloaded, right?
         A    I don't put anything on my system, people upload the files
         that are there, but what ever the situation is_ _ _
         Q    I know but you leave programs on there that are shareware?
         A    Thats correct yes.
         Q    In fact, if somebody uploaded a commercial program on your
         BBS you wouldn't let it stay there, right?
         A    That's correct.
         Q    You'd take it off; wouldn't you?
         A    Yes.
         Q    Because you don't want people downloading commercial
         programs from your computer?
         A    That's correct.
         Q    But, according to this log, that's exactly what was done.
         Commercial programs in zipped form were downloaded from your
         computer?
         A    Do you want me to write one for you and - -
                        THE COURT:  Just answer the question.
         BY MR. KITCHEN:
         Q    Isn't that true?
         A    No, that's not true.  According to this log, this never
         happened.  It couldn't happen because I didn't have a computer
         on some of those days.
         Q    So this never happened?
         A    I didn't have a computer on some of the days that's in
         that log.
         Q    Well, the only one that you don't have a computer on is
         the date that's 0l0l80.  Okay?  What does the date 0l0l80 mean
         to you?
         A    It would appear that someone was tampering with computer
         dates on their computer, tampering to make certain things that
         happened appear like they happened at a different time.
         Q    How is the clock maintained in a computer when it's
         unplugged and shut down?
         A    By battery.
         Q    And what if we take the battery out?  Will the clock be
         maintained?
         A    No, not_ _ _
         Q    And so if we don't have the clock maintained because we've
         yanked the battery out and we crank up the computer and we ask
         the computer what the date is what will the computer tell us?
         A    The same thing it would say if someone is tampering - -
         Q    Do you have a date in mind that the computer will tell us
         if we crank it up with the battery pulled out?
         A    Yes.
         Q    What is the date?
         A    l980, January lst, l980.
         Q    Okay.  So this ll80 down here means nothing more than if
         somebody's clock was screwed up, right?
         A    It can mean that.  It could mean that.
         Q    And the lines before on the log are more recent dates of
         September 3rd, l99l and then they're followed with September
         4th and then later on with September 6th, September 7th,
         September 9th, llth, l2th and l3th and then the l4th and the
         l6th, the l7th and the l9th and 20th.  You were there on those
         dates.  In fact, it goes all the way to September 23?
                        THE COURT:  Wait a minute.  Just one question.
                        MR. KITCHEN:  Right.
         BY MR. KITCHEN:
         Q    You were there on those dates; weren't you?
         A    I was there during that time frame.  I don't know,
         specifically, whether it was those dates or not.
         Q    Well, do you remember somebody else working on this
         particular computer doing this uploading and downloading with
         your bulletin board service or your computer?
         A    Say that again?
         Q    Do you recall whether somebody was communicating with your
         computer?
         A    Not particularly.  You know, I don't pay a lot of
         attention to people that log in on my systems.  If they leave
         messages I would know.
         Q    What does - - what is your BBS's phone number?
         A    897 - - let me see - - 894-7386 I believe.
         Q    Okay.  What does the number 896-6409 mean to you?
         A    That's an alternate number.
         Q    Okay.
                        THE COURT:  896 what?
                        THE WITNESS:  6409.
                        THE COURT:  896 what?  You gave me three digits
         back.
                        MR. KITCHEN:  6409.  6409, Your Honor.
         BY MR. KITCHEN:
         Q    And 896-6409 isn't the number that most of your users call
         when they call your BBS; is it?
         A    Beg your pardon?
         Q    That number isn't what your users normally call when they
         want to get a hold of your bulletin board service; is it?
         A    That's incorrect.  That is one of the numbers.
         Q    Okay.  And didn't you set up your computer before you went
         over to Richard's so that you had a bunch of commercial files
         in zip format sitting on your computer so that you could call
         from Richard and download those and put those commercial
         programs on Richard's computer?
         A    My system is always designed so I can access my utilities.
         Q    That's a yes or no.
         A    Yes, my computer has been set up, it was set up for four
         years before I had any dealings with Richard.
         Q    So the answer is yes and you very well could have been the
         one who downloaded these items to Richard's computer, right?
         A    Those items that you named are not on my computer.  A lot
         of those items you named are not on my computer.
         Q    Which ones aren't on your computer?
         A    That QEM60 wasn't on my computer that particular time.
         Q    X- Tree (sic) Gold?  That was on there, right?
         A    I believe that's the utilities on my computer.
         Q    And Norton was on there, right?
         A    No.  I use X- Tree (sic) Gold.  Richard uses Norton.  That
         was never on my computer.  I used to always try to get Richard
         to use a better program.  And to come to think about it Richard
         uploaded that to my computer, Norton, and tried to get me to
         use it.
         Q    How about DOS 5.0?
         A    Yes, that was on my computer.
         Q    Okay.
         A    That Norton came from Richard.
                        MR. KITCHEN:  Based on that we offer Plaintiff's
         Exhibit 69.
                        MR. OSTROWSKI:  I object.  He's repudiated the
         accuracy of the document numerous times.
                        THE COURT:  Well, have we surmounted the
         threshhold which worried the Court, Mr. Kitchen?
                        MR. KITCHEN:  Well, I think so, Your Honor,
         because I think it reads rather plainly, as compared with some
         of the documents that we've had here.  It's pretty fairly easy
         to follow.
                        THE COURT:  All right.  I'll receive it.
         Plaintiff's 69 in evidence.
                             (The document above-referred to,
                             Plaintiff Exhibit 69, was received
                             into evidence)
         BY MR. KITCHEN:
         Q    Let me show you Plaintiff's Exhibit 29 and to be perfectly
         honest, I'm not sure if we have done this before because some
         time has elapsed.  Have you seen this before?
                        THE COURT:  I know it's in evidence.  Does that
         help?
                        MR. KITCHEN:  It may help, Your Honor, but it
         may have been put into evidence by Mr. Graham that's why I'm--
         BY MR. KITCHEN:
         Q    Well, I'll ask Mr. James if he recognizes Plaintiff's 29?
                        THE COURT:  In any event, the key question is
         whether or not you've reviewed that at all with Mr.James; is
         that right?  Is that right?
                        MR. KITCHEN:  This?  I think he's seen it but
         I'm not sure.
                        THE COURT:  This is the key question, that you
         don't remember whether you've gone over this with Mr. James.
         Mr. Graham may have put it in evidence?
                        MR. KITCHEN:  Yes, that was the idea, yes, sir.
                        THE COURT:  Well, let me see.
         BY MR. KITCHEN:
         Q    Mr. James, do you recognize Plaintiff's 29 here?
         A    Yes, I do.  It reminds me - - it's kind of vague, it was
         quite awhile ago,but it reminds me of something that most
         likely happened.
         Q    Did you write it?
         A    I believe I did.
         Q    Okay.  And you put at the top Night Owl Computer Service
         and some address and some numbers,phone numbers and that sort
         of thing and underneath you put attention Larry James.
         A    Yes.
         Q    In what capacity were you writing this letter?
         A    I was writing it - - Richard - - I had brought some tapes
         over - - I had a problem with some of my tapes and Richard kept
         telling me that he could fix it.  He just kept telling me he
         could fix it.  And I told him that I was going to send it out,
         but the thing is, because I was driving cabs no one may not be
         there to get it.  And he said that he would receive it for me.
         And so I wrote the letter but we never did send it out because
         Richard fixed the tape.
         Q    Richard fixed the tape?  What was the matter with the
         tape.
         A    The rubber band had came off the spool.
         Q    And Richard fixed it?
         A    Yes.  I, myself, would never have - - I wouldn't have - -
         he assured me that he - -
         Q    Who assured you?
         A    Richard.  He showed me a couple of tapes he experimented
         with that didn't work but he used them as parts.  I didn't want
         to take a chance with the tape because I was very concerned
         about my data and Richard showed me a bunch of tapes and he
         guaranteed me that all he had to do was just put the rubber
         band on, it was real simple.  And so I didn't send, really send
         the letter.  But had he not fixed it I would have sent it to
         them and they would have sent it back to that address at my
         attention.
         Q    Well, was it the tape that was a problem or was it a tape
         drive that was the problem?
         A    May I see that?
         Q    When you say "tape", you're just talking about a cartridge
         that fits into one of these back-up systems, right?
         A    Actually I was recalling - -
         Q    Are we talking about a drive or are we talking about a
         tape?
         A    I was talking about a tape.
         Q    Just tape?
         A    Right.
         Q    Not the drive?
         A    We did have problems.
         Q    The tape has a rubber band in the cartridge?
         A    No.  We had problems with the drive, too.  Whatever the
         situation is, there was - -
                        THE COURT:  Where was the rubber band?
         BY MR. KITCHEN:
         Q    Was the rubber band in the drive or was the rubber band in
         the tape cartridge?
         A    Okay.  These are drives.  And, yes, I did use Richard's
         address. He told me to.
                        THE COURT:  Excuse me.  What did the rubber band
         fix?
                        THE WITNESS:  A tape, a Colorado tape.
                        THE COURT:  All right.
                        THE WITNESS:  There was problems with a drive
         and this was just a few things.  I received the keyboards, I
         received a number of things.  In fact, Richard was trying to
         get me to receive more and more stuff.
         BY MR. KITCHEN:
         Q    Now, this address up here, Night Owl Computer Service, 2l9
         Potomac.
         A    That's Richard's address.
         Q    Okay.  And those phone numbers underneath it, are those
         Richard's phone numbers?
         A    No.  I could be reached by phone.  I just couldn't receive
         the package.  I wanted the package to come there.
                        THE COURT:  Are those Richard's phone - -
                        THE WITNESS:  No.  Those are my telephone
         numbers.
                        THE COURT:  All right.
                        THE WITNESS:  I - -
                        THE COURT:  Wait a minute.  Wait for a question.
         BY MR. KITCHEN:
         Q    Did you ship these things using Richard's UPS number?
         A    Richard - -
                        THE COURT:  Did you or did you not?
                        THE WITNESS:  I didn't use anything.  Richard
         did it.  I don't know what Richard's UPS number is.  Richard
         packaged them, Richard shiped them and Richard received them
         and Richard, gave them to me.
         BY MR. KITCHEN:
         Q    And whose drives were they?
         A    They were my drives.
         Q    And is the date accurate?  September ll, l99l?
         A    I don't know, but it can be accurate.  It was between the
         lst of September and the middle of September, and maybe the 3rd
         quarter of September.
         Q    Okay.
                        MR. KITCHEN:  No further questions.
                                  REDIRECT EXAMINATION
         BY MR. OSTROWSKI:
         Q    When you cancelled the agreement with Mr. Costantino, was
         that because of the Court's injunction?
         A    No.  Yes.
         Q    Yes or no?
         A    Yes.  I haven't really cancelled - -
                        THE COURT:  Wait a minute.  Wait a minute.  Ask
         a question.
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  Not you.
                        THE WITNESS:  Oh!
         BY MR. OSTROWSKI:
         Q    Let me ask you, I'm going to read something to you and ask
         you if you know what it means.  "It is hereby ordered that the
         Defendant, his agents and servants are preliminarily enjoined
         from publishing, copying, selling, marketing or otherwise
         disposing of any of the copies of the computer program entitled
         DFM.EXE or Storm l.EXE or any program however denominated which
         contains material substantially copied from the Plaintiff's
         program, Night Dot EXE or its source codes."
                        Now,with respect to the words "contains
         materials substantially copied from" do you know what that
         means?
         A    Yes.
         Q    You do?  What does it mean?
         A    I mean, I would think it would mean just copying the
         program or copying the program.
         Q    Have you had any legal training?
         A    No.
         Q    Okay.  Have you had any training in copyright law?
         A    No.
                        MR. KITCHEN:  Your Honor, I'm going to object to
         the extent that this is intended to be some sort of an excuse.
         Mr. - -
                        THE COURT:  It's a whitewash job, yeah, but he's
         entitled to do it.
                        MR. KITCHEN:  But he was represented by Counsel
         at the time.
                        THE COURT:  Well, you can bring that out on
         recross.
         BY MR. OSTROWSKI:
         Q     Did your attorney have any legal training?  Withdrawn.
         Now, how much time passed between the Costantino episode and
         the Greg Armenia deal wherein you gave him a file retrieval?
         A    About ten months.
         Q    Ten months?
         A    In fact, it was over a year.
         Q    And how close was the Costantino episode to January l5th,
         l992, the date of the Court Order?
         A    It was about a couple of weeks, a few weeks.
         Q    Now, you've seen Plaintiff's Exhibit 69?
         A    Yes.
         Q    Is this an accurate record?
         A    No, it's not.
         Q    Do you have any idea how this was created?
         A    It looked like it was created with a text editor.
                        THE COURT:  With what?
                        THE WITNESS:  With a text editor, such as Q, to
         edit a text file.
         BY MR. OSTROWSKI:
         Q    And do you have any idea who created it?  Do you know who
         created it?
         A    I know that one of Richard Graham's favorite
         programs Norton Utilities - -
                        MR. KITCHEN:  Objection.  Not responsive.
                        THE WITNESS:  Norton Utilities is there.
         BY MR. OSTROWSKI:
         Q    Do you know who created it?
         A    Yes.  No.  I don't know, per se, but - -
         Q    Okay.  Let me ask you this:  Whoever created it, could
         that person have put any data in here that he or she wanted?
         A    That's correct.
         Q    What commercial programs did you copy from Richard's
         computer onto your's besides - -
         A    A Borland C plus plus.
         Q    Anything else?
         A    Nothing I recall of.
         Q    Did you believe that when you were copying C plus plus,
         that was a lawful use of the program?
         A    Absolutely.  I didn't inquire as to the developers of the
         product, could I do it.  And I - -
         Q    Okay.  That's enough.  You answered the question.  Now,
         can you give us a summary of the conversation you feel is
         missing on that tape recording or can you not?
         A    I can give a summary.
                        THE COURT:  Excuse me?
                        THE WITNESS:  I could give a summary.
         BY MR. OSTROWSKI:
         Q    Okay.  And what is the summary?
         A    Richard was responding to my questions about him welshing
         on his agreement that paid me in my life with money and he's
         telling me, I told you countless of times that you would paid
         your full commission when things were faster and better.
                        And the reason I remember that is because he
         actually had told me many, many times and he just reiterated
         what he had told me so many times.
         Q    Now, you were asked on cross-examination about the source
         code that allow you to shell to DOs in a program?  Do you
         remember that?
         A    Yes.
         Q    And does your file retrieval - - how does your file
         retrieval program shell to DOS or did it?
         A    Some of the times it would run a module called systems and
         some of the time it would just, it would create its own shell,
         using a lower level.  It was spun a new shell without running
         the system.
         Q    So did you use - - is shell to DOS a DOS command or is it
         a separate program?
         A    It's a DOS command.
         Q    You're saying your file retrieval program does not use
         that?
         A    It uses a special structure, somewhat of a modified
         structure by either spawning the program or running the system.
         Q    Now, I'm going over my notes from several weeks ago, so
         that's why I'm a bit slow.  Okay.  With respect to - - there
         was some testimony about the location - - I'm sorry, withdraw
         that.  Was there a file 0000 on Pier l?
         A    No.
                        THE COURT:  Four zeros?
                        MR. OSTROWSKI:  Yes.
                        THE WITNESS:  No.
         BY MR. OSTROWSKI:
         Q    Okay.   It must be my notes then.  Do you have to register
         a program in order to be able to use it lawfully?
         A    No.  Mostly when I read the reference to registration they
         ask you to register if you want support and it's real common
         that I use a program for six months to a year before I get
         around to registering it.  I'm going to need support for this
         C compiler that I just purchased for the units.  It cost me
         twelve hundred dollars and the registration has sat on my desk
         for about three weeks.  But now I'm getting ready to fill it
         out because I'm going to have to ask their staff technical
         questions.
                        If it weren't for this, I probably would never
         get around to registering it.  I should have registered it when
         I first got it but it doesn't challenge the legality.  It just
         gives you an opportunity to be able to get support from the
         developer.
         Q    What are the expenses on your BBS per year, approximately?
         A    I have a shut off notice on one of my telephone bills.
         I'm going to have to run down and pay it as soon as I can, but
         that particular phone is - -
                        THE COURT:  Can you answer the question?
                        THE WITNESS:  It's about two hundred dollars.
                        THE COURT:  Two hundred dollars a year?
                        THE WITNESS:  That monthly bill for that
         particular telephone.
                        THE COURT:  Two hundred dollars for what period
         of time?
                        THE WITNESS:  For a month.  For one of the
         telephone numbers.
         BY MR. OSTROWSKI:
         Q    How many numbers are there?
         A    Three.
         Q    So can you give us an estimate of the monthly phone bill
         total?
         A    About - - I would say about four hundred dollars.
         Q    Are there any other expenses?
         A    I also have to replace hardware and I get bigger hard
         drives.  The hard drive system I have now is 2.5 gigs and the
         last drive that I bought cost me about twelve hundred dollars.
         And I would say monthly expenses can easily be about six
         hundred dollars a month.
         Q    Do you have a large electric bill or is that not a
         problem?
         A    The electrical bill is probably just a little bit more
         than other people, but because electronic stuff, computer
         stuff, is mostly solid state, it don't generate a lot of heat
         or turn big engines.  It don't burn up a real lot, per se.
         Since they never go on.  I would say it costs about a dollar a
         day in electricity.
         Q    Have you ever taught anybody to read other than Mr.
         Graham?
         A    I work on things like that very regular.  That was one
         occasion.  I mean, when I was in college I took a course, a
         psychology course.  It was accredited where people in the
         classroom were assigned students, underprivileged kids in the
         community.  And underachievers especially kids that were
         failing and couldn't do academic work.  I was given two
         students that was making straight F's, and failing all the
         time.  And the course lasts about six months.  And between when
         I started working with those two kids and when I finished, they
         went from failing to straight A students.
         Q    And other than those two have you taught anyone else
         literacy skills?
         A    It's real common.  Yes, I have.  I taught an individual,
         another individual, spelling.  I started working with him - -
         Q    Who was that?
         A    Alan Harris.
         Q    Okay.  And aside from literacy, have you helped people
         with school work; young people?
         A    It's very common, young and old.  I mean,it doesn't matter
         but I do it kind of often and I also do the same thing with
         people, you know, for computers.  I believe I have sort of a
         special knack for helping people to grasp some things.
                        For instance, one of my employees from the flea
         market who had never used a computer thought that he never
         could touch a computer, couldn't do anything.  He started
         working with me and I started teaching him things.  I didn't
         teach him academics, but I was teaching him things about
         computers and he really followed me totally beyond his scope.
                        Right now he does a lot of - - he became - -
         within three months he got hired with a firm and got a lot of
         job offers from a lot of different places working with
         computers.
                        That happened about three times in the past six
         months with people that was working with me at the flea market.
         If they worked with me for about two months they can get a job
         almost anywhere.
         Q    Now, Mr. Kitchen asked you some questions that led to you
         giving a figure of ten thousand dollars.  What does that figure
         mean?
         A    Well, if someone spends a few hours developing something,
         you know, I mean a few weeks or hours of whatever, they develop
         something, they could probably produce a substantial retriever
         or something that a person may be satisfied with, and they may
         sell it for ten thousand dollars.
                        Can you ask the question, again, so I could try
         to stay in that realm, in the scope, as good as I can.
         Q    Well, I think you answered that, but you said you wouldn't
         sell your program for ten thousand dollars?
         A    Right.  The program that I have and that I was writing,
         and there was a real big serious gap and a handicap because I
         had to start over.  It wasn't just a program for say like, for
         instance, a college professor says he wrote hundreds and
         thousands of programs.  Me, I just write one program.  Just one
         program, but that program is to be an environment to do
         everything and anything for anybody and everybody.  So, I can't
         sell it.  My program is an environment.
         Q    Now, the program that somebody could buy for ten thousand
         dollars, would that be identical to yours?
         A    No.  It would probably be something that would start, have
         a finite starting point and a finite ending point.  And it
         probably would be an ongoing thing of support.  The individual
         would be remunerated for compiling something and putting it
         together.  And from then on, like - -
         Q    Well, all I'm asking you is, if somebody went out in the
         market place and bought a file retrieval for ten thousand,
         would that be identical to yours?
         A    No.  It wouldn't be possible that it would resemble
         anything about me and my programs, whatsoever.
         Q    Why not?
         A    Because no two people - - there's too many ways of doing
         something.  There's just too many ways and people just wouldn't
         hardly stopple (sic) in the same way.  It just wouldn't be the
         same.
         Q    Now, did you refuse to support the program that you sold
         to Richard?
         A    No.
         Q    Now, what is the difference between DIR and CAT with
         respect to - - well, which program used the CAT name for
         organizing directories?
         A    I think the original disk - - there was some problems with
         the original disk.
                        THE COURT:  What question are you answering?
                        THE WITNESS:  He asked me what was the
         difference?
                        THE COURT:  No, he didn't.
         BY MR. OSTROWSKI:
         Q    What program used the name CAT to describe files?  I'm
         just trying to get orientated here.
         A    I believe it was Jeff Anderson's program, but I can't be
         l00% sure.  I believe it was on that disk.
         Q    And did your program use DIR?
         A    Yes, it did.
         Q    For the same purpose?
         A    No.
         Q    Well, did your program use DIR instead of CAT, the name?
         A    I - -
         Q    Yes or no?
         A    Mine used DIR.
         Q    Okay.  So the names were different?
         A    Yes.
         Q    Were there any other differences?
         A    Yes.
         Q    And what were they?
         A    The program that Jeff Anderson wrote was totally different
         in that it didn't use the information that was in the DIR, the
         text file, which was called by a different name.  All it did
         was just route that file out.  It had another separate, totally
         separate file, that was called - - I forgot what it was called,
         I think it was called DAT.  Yes, DAT, for data file.  And it
         was on the route directory and all those headings that was in
         Jeff's program came from that file.  If you changed that file,
         that index file that's on the route directory then the headers
         that appear on Jeff's program would be different.
                        My program, it just retrieved information off
         the customer's, the media, whether it was CD ROM or hard drive
         or tape, it just retrieved the information.  One of the
         information was a text, was a subdirectory of text files.  And
         when it pulled up that text file it handled information that
         was in that text file.  It did not use a media index file, it
         just had that information that was in that text file that the
         customer provided to me.
                        And the guidance that I did with Richard, he had
         a CAT file, he had some files and they had an extension.  PC
         Board and me, we don't use - - we use extension for something
         different.  And since it had those extensions, it would not
         work and so I told Richard to use the DIR format, a PC board,
         so that it will be compatible with my utilities and compatible
         with PC Board.
                        And it's a significance difference, that DOS CAT
         file.  A file name can be any name, but Jeff's program used
         those files - - it just displayed a file.  My program had the
         information that was in that text file to do things for the
         customer.
         Q    Okay.  Some day I'll understand it, I guess.  Now, when -
         - Did Richard Graham take your copyright notice out of your
         program?
         A    Yes, he did.
         Q    Did you consider that an infringement of your copyright?
         A    Yes, I did.
         Q    And has he fully paid you for the use of your program?
         A    No, he hasn't.
         Q    Do you consider that a copyright infringement?
         A    Yes, I do.
         Q    Has he fully accounted to you for all of the profits - -
                        THE COURT:  Wait a minute.  You say your basic
         position is he promised to pay you; is that right?
                        THE WITNESS:  That's correct, Your Honor.
                        THE COURT:  Now, having promised to pay it would
         not be an infringement; would it?
                        THE WITNESS:  Your Honor - -
                        THE COURT:  Would it?  Aren't we really just
         dealing with his failure to live up to his contract to pay you?
                        THE WITNESS:  Yes, Your Honor.
         BY MR. OSTROWSKI:
         Q    You initially gave permission to Mr. Graham to use your
         program in C language?
         A    That's correct.
         Q    Was that permission on the condition that he pay you
         according to your contract?
         A    That's correct.
         Q    Okay.  And did he pay you according to your contract?
         A    No, he didn't.
         Q    Okay.  And at the point when he stopped paying you
         according to the contract, did he have any permission from you
         to use your copyrighted program?
         A    No.
                        THE COURT:  Did there come a point when you said
         to Mr. Graham, because you have not paid me you no longer may
         use my program?
                        THE WITNESS:  Not directly.
                        THE COURT:  Not in so many words.
                        THE WITNESS:  I didn't get a chance.
                        THE COURT:  All right.
         BY MR. OSTROWSKI:
         Q    Has Mr. Graham fully accounted to you for the profits that
         he's made out of your program?
         A    No.  The last - -
         Q    That's a yes or no?
         A    No, he didn't.
         Q    And was that one of the conditions of allowing him to use
         your program?
         A    That is correct.
         Q    Now, in your file retrieval - - see if I can find it.  I'm
         showing you Plaintiff's l8.  What are these include commands at
         the top?  What do they mean?
         A    These are standard library files from Borland C plus plus
         or from a C Compiler.
         Q    Did you write those?
         A    Those modules right there?
         Q    Yes.
         A    No, I didn't.
         Q    Now, I see include DIR.H?
         A    Right.  It's a coincidence that that module has a same
         name as one of mine.
         Q    Well, okay.  But let me ask you this:  Do you have a
         program called DIR, INT DIR in this document?
         A    Yes.  These header files.  I refer to them as modules, but
         they're really not a module, per se.  What they are, they're
         index to modules that are included in their library.  It calls
         libraries up, it calls modules up.  When you include this DIR
         right there it has INTs  for various things about directories.
         For instance, one of the INTs  may be a utility to create a
         directory, MD, if you want to make a directory or display some
         facility of DOS, it may be included in this particular header
         file.  And this header file has all the preliminary set-up,
         parameter listings and things in it.  And what it does,it pulls
         this out of a compiled library that's shift with Borland C plus
         plus.
         Q    Well, let me ask you this:  On this print-out, are these
         include - - are the programs that are quote "included", are
         they on the print-out?
         A    No.
         Q    Okay.  That's all I'm asking you.  Now, the programs that
         are on the print-out in source code, did you write those?
         A    Yes.
         Q    And are there any on there that you didn't write?
         A    No.
         Q    Okay.  So when you testified on cross, something about 50%
         were written by you, what were you talking about?  Do you
         recall giving that answer?
         A    Okay.
                        THE COURT:  Wait a minute.  The question is do
         you remember giving that answer?
                        THE WITNESS:  Yes.
         BY MR. OSTROWSKI:
         Q    Well, what did you mean by that?
         A    If I use a command, Print F, Print F, that's a function
         just like my command DIR.  I wrote DIR, you know, I took a
         bunch of functions and elements and arranged them so that it
         would do certain things for the screen and I called it DIR.
         Now, Print F is no different in functionality as for a
         functional or command than DIR.  What Print F does is it allows
         you to print something to the screen in a certain format.  In
         fact, it's can be described as a formated printed output.
         Print-out is a function that's written by Borland C and DIR is
         a function written by Larry James.
         Q    Isn't print-out - - can you find it printed here?
         A    Right here.  STR.
                        THE COURT:  Wait a minute.  One at a time,
         please.
         BY MR. OSTROWSKI:
         Q    Can you find a Print F command in there anywhere?
         A    A lot of people would use print-outs - - by the way, I
         don't believe - -
                        THE COURT:  Do you find it there, anywhere?
                        THE WITNESS:  No.
                        THE COURT:  All right.
                        THE WITNESS:  They have a C print-out all the
         way through.
                        THE COURT:  Wait a minute.  Wait for a question.
         BY MR. OSTROWSKI:
         Q    Well, what does C print-F mean?
         A    It's the same thing as print-out.  If I use print-out, I
         can name print-outs because it's very common and I want to
         speak of something common to everyone.  But all throughout this
         code instead of using Borland's print-out, I use Borland C
         print-out, which is the identical thing, but it's slightly
         different in that it uses Console I-O rather than a lower
         level, rather than - - it uses Console I-O, very machine
         specific to the IBM PC.
         Q    Well, where are you at?
         A    Right there.
         Q    What function are you in in the program?
         A    Right now I'm in my INTgoodbye.  But - -
         Q    But what page is that on?
         A    Page 9.  You can - -
         Q    Well, let me ask the questions.   Okay.  Does the term C
         print-out appear in goodbye?
         A    Yes, it does.
         Q    And who put it there?
         A    I did.  And it's all part of my routine, my function.
         Q    Okay.  What you're saying is, you didn't create Print F as
         a word?
         A    Right.
         Q    As a computer function?
         A    That's correct.
         Q    But you did type it in here?
         A    Yes.  Yes.
         Q    And you arranged it in accordance with the other source
         codes in INTGoodbye?
         A    That's correct.
         Q    To accomplish a certain result?
         A    That's correct.
         Q    And the arrangement of these source codes and the result
         that they achieve, did you copy that from some place?
         A    No, I didn't.
         Q    Where did you get it from?
         A    I created it.
         Q    Now, is the same true of all the other functions?  Did you
         create them or did you copy them?
         A    I created them.  INT Goodbye is created by me and it
         includes a function called print-out.  There's no way that a
         person that's going to write a utility is going to make a new
         function called print-out, C print-out, they're not going to
         write a new function.  If they write a new program they would
         use that C print-out in a different way.  If I write - -
         everytime I write a new program I use INT Goodbye in a
         different way, according to the objective.
         Q    Did you invent the word Goodbye?
         A    No, I didn't.
         Q    Okay.
         A    A print - -
                        MR. OSTROWSKI:  I have no further questions - -
         well, see, I don't know if you answered my question.
         BY MR. OSTROWSKI:
         Q    Did you create all these other functions or did you copy
         them from some place?
         A    Every function that starts with int was created by me.
                        THE COURT:  Started with what?
                        THE WITNESS:  INT;  I-N-T.
                        THE COURT:  I-N-T.  Okay.
                        THE WITNESS:  If it has I-N-T, and then it has
         open and close parenthesis and then if it has other brackets,
         start and stop, it was created by me.  You know, that right
         there is INT.  That right there is a name.  That right there is
         open and close parenthesis.  And right here is - -
                        THE COURT:  The question was did you create all
         those I-N-T functions and your answer seems to be that you
         created certain I-N-T functions which have other - -
                        THE WITNESS:  All - -
                        THE COURT:  Excuse me.  - - which have other
         identifications along with them; is that right?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  You didn't create all the I-N-T
         functions or all I-N-T functions with that other garbage?
                        THE WITNESS:  Your Honor - -
                        THE COURT:  Can you answer that?
                        THE WITNESS:  Yes, Your Honor.
                        THE COURT:  How could you answer it?
                        THE WITNESS:  I was describing what a function
         was.
                        THE COURT:  Are all the functions, are the I-N-T
         functions all as you've described or are there other I-N-T
         functions?
                        THE WITNESS:  I-N-T can start something that's
         not a function.
                        THE COURT:  I know.
                        THE WITNESS:  If it's a function, I wrote it.
                        THE COURT:  All right.  So any I-N-T function
         you wrote?
                        THE WITNESS:  That's correct, Your Honor.  Every
         last one of them.
         BY MR. OSTROWSKI:
         Q    What about CHAR space, any key?
                        THE COURT:  C-H-A-R what?
                        MR. OSTROWSKI:  Space, any key.
                        THE WITNESS:  May I see - - oh, yes.  Yes.
         BY MR. OSTROWSKI:
         Q    Did you write that?
         A    I'm not sure if that's a function.
         Q    Okay.  Well, what is it?
         A    You see - -
         Q    What is it if it's not a function?  Is it an important
         function?
                        THE COURT:  Well, first you've got to find out
         if it's a function.
                        THE WITNESS:  Where is it located and I'll tell
         you.
                        MR. OSTROWSKI:  Page l, I think.
                        THE WITNESS:  What I would like to say is - -
         BY MR. OSTROWSKI:
         Q    Can you find CHAR any key?  If not, I'll go on.
         A    I would say it's not a function.
                        THE COURT:  Can you find it?
                        THE WITNESS:  I don't see it offhand, but - -
                        THE COURT:  All right.  Your answer is, I don't
         see it offhand.
         BY MR. OSTROWSKI:
         Q    What about Set Areas.
                        THE COURT:  S-e-t?
                        MR. OSTROWSKI:  S-e-t  a-r-e-a-s.
                        THE WITNESS:  Where is it located?
                        MR. OSTROWSKI:  34, maybe.  This isn't - -
                        THE WITNESS:  Yes, I wrote that.
         BY MR. OSTROWSKI:
         Q    Okay.  What about Go To View?
         A    I wrote that.
         Q    What about Get DIR?
         A    I wrote that.
         Q    Character - -C-h-a-r star help lines, 4,000?
         A    I wrote that.  I would like to clarify what a function is.
                        THE COURT:  Wait a minute.  Maybe we don't care.
                        MR. OSTROWSKI:  I don't really care.
                        THE WITNESS:  Okay.  Because I wrote all the - -
                    THE COURT:  Wait a minute.
         BY MR. OSTROWSKI:
         Q    And you wrote all the I-N-T-s?  You wrote all the ones
         that begin with I-N-T?
         A    Every last one of the functions.
         Q    And almost all of them begin in I-N-T, right?
         A    That's correct.
                        MR. OSTROWSKI:  I have no further questions.
                                   RECROSS-EXAMINATION
         BY MR. KITCHEN:
         Q    Now, with respect to uploading this Borland C plus plus
         program, you said you had permission to do so?  You were
         authorized to do so?
         A    What do you mean?
         Q    Were you authorized - -
         A    It was my program.
         Q    Were you authorized to upload it?  Oh, you're saying the
         Borland C plus plus is your program?
         A    Yes.  The package that Richard bought, he bought Borland
         C plus plus and gave the program to me.
         Q    So you are the registered owner?
         A    I already told you what I do with registration cards.
         Sometime, maybe I'll change.
         Q    So it was given to you and you still have the registration
         card?  It's in your three-inch stack and you've never sent it
         in; is that correct?
         A    No.  That's not correct.
         Q    Do you have the registration card?
         A    No, I don't.
         Q    Why not?   Who has the registration card?
         A    Richard has it.
         Q    He sent it in; didn't he?
         A    I don't know what he did with it.
         Q    Okay.  So he never gave you the registration card?
         A    No.  No.
         Q    So, if you wanted to get registered you couldn't.
         A    He gave me a dollar with a string attached to it and
         yanked it.
         Q    Hmm.  You're not talking literally, though, are you?
         A    It seems very literal.
         Q    You mean literally?  He literally attached a string to the
         C plus plus program when he handed it to you and later he
         jerked on the string; is that what you're saying, literally?
         Don't you know now that Richard - -
                        THE COURT:  Wait a minute.  Do you want him to
         answer or are you withdrawing the question?
                        MR. KITCHEN:  I'll withdraw the question.
         BY MR. KITCHEN:
         Q    Don't you know now that Richard is, in fact, the
         registered owner of Borland C plus plus?
         A    I gave him the package back when he asked me for it.
                        THE COURT:  You know that he owns it?
                        THE WITNESS:  Yes, Your Honor.
         BY MR. KITCHEN:
         Q    And then you deleted it from your system?
         A    I - - that - -
         Q    Yes or no?
         A    It was never installed on my system.
         Q    Yes, you did.  You uploaded it to your system, didn't you?
         A    Yes, I did.
         Q    Okay.  So did you delete it then?
         A    Yes, I did.
         Q    Uh-huh.  Now, when you wrote the program or compiled the
         program that's Plaintiff's l8, you said it has these libraries,
         these include lines near the top?
         A    Uh-huh.
         Q    Those are all libraries that are supplied with Borland C
         plus plus, right?
         A    Yes.
         Q    But, in fact, you didn't use Borland C plus plus to
         compile this program; did you or did you?
         A    Yes, I did.
         Q    Okay.  Didn't you testify on direct examination some weeks
         ago that you never used Borland C plus plus to compile this
         program; isn't that what your testimony was then?
         A    No.
         Q    What did you testify then?
         A    That I don't program in C plus plus.
         Q    Okay.  But you also said that you didn't compile in C plus
         plus; didn't you?
         A    No.
         Q    You said you used somebody else's program for compiling,
         not the Borland, you used somebody else's; didn't you?
         A    No.  I told you as of January in l99l I was using Borland
         C plus plus for one of my customers.  And I always used that
         for my customer.  Borland C - - I used that compiler.  You can
         compile straight standard and C programs.  I do not write and
         compile - - I do not write - -
         Q    Didn't you say you compiled this over at a friend's house?
         A    No, I didn't.
         Q    You didn't?
                        THE COURT:  Over whose house?
                        MR. KITCHEN:  A friend's house.
                        THE COURT:  Oh, a friend.
                        THE WITNESS:  No, I didn't.  I said I used a - -

         BY MR. KITCHEN:
         Q    Where did you compile that program?
         A    On my computer.
         Q    On your computer?
         A    Yes, I did.
         Q    Using Borland C plus plus?
         A    That's correct.
         Q    That you uploaded from Richard's computer?
         A    No, that is incorrect.  I never did use that program.  I
         never did use it.  Richard gave me the books.  I have the
         books.  I never had the package, never had the package.  I came
         over his house, this and that, one day.  What I did, now I've
         been using this program for eight months.  Richard always had
         the disk and I'd say, well, let's zip up these disks and store
         them - -
         Q    So you compiled it using Borland C plus plus, but it was
         from somebody else who gave you Borland C plus plus?
         A    That's correct.
         Q    Who gave you Borland C plus plus?
         A    Leo Bicknell.
         Q    Okay.  Is that your nephew or something?  Leo Bicknell?
         A    No.  That - -
         Q    Oh, this is a friend, right?
         A    That's one of my students who I sold a computer to.  His
         father is the aircraft controller.
         Q    And he bought you Borland C plus plus?
         A    I was tutoring his son.
         Q    Well, yes.  And he gave you Borland C plus plus?
         A    His son gave it to me.
         Q    All right.  And, of course, it's registered in his name.
         A    In January.
         Q    Of course, it's registered in his name?
         A    Yes.
                        THE COURT:  January what?
                        THE WITNESS:  In January of '9l.
                        MR. KITCHEN:  Okay.
         BY MR. KITCHEN:
         Q    So you've gotten two Borland C plus plus.  One was
         registered in Richard's name and one was registered in Leo
         Bicknell's name, right?  Right?
         A    That's correct.
         Q    Okay.  But neither one of them is registered in your name.
         A     (No response)
         Q    You're still not a registered - -
                        THE COURT:  Wait a minute, wait a minute.  Do
         you want him to answer that if it's a question?
                        MR. KITCHEN:  Well, it's not really a question.
                        THE COURT:  I didn't think it was.  Go ahead.
         BY MR. KITCHEN:
         Q    So you don't - - you still do not have Borland C plus plus
         registered in your own name?
         A    Let me see - - did I send in that regis - -
         Q    Answer yes or no?
         A    I have it registered in my name.
         Q    When did you do that?
         A    Probably around October.
                        THE COURT:  Of '92?
         BY MR. KITCHEN:  '93.
                        THE COURT:  Or '93?
         BY MR. KITCHEN:
         Q    Last month?
         A    No.  I think it was '9l.  October of '9l.
         Q    October, '9l?
         A    Yes.
         Q    All right.  When did Leo Bicknell give you Borland C plus
         plus?
         A    Around Christmas in '90.
         Q    Christmas of '90.  December of l990?
         A    Yes.
         Q    Okay.  That's when - - and it was Borland C plus plus,
         huh?
         A    Yes.
         Q    Okay.  Was Borland C plus plus actually available in
         December of l990?
         A    Well, actually it was - -
         Q    Yes.  Was it or wasn't it?  Yes or no?
         A    Yes.
         Q    It was?
         A    It was terrible to see.
                        THE COURT:  It was what?
                        THE WITNESS:  Terrible to see.
                        THE COURT:  Terrible to see?
                        THE WITNESS:  It's the same package by the same
         company, yes.
         BY MR. KITCHEN:
         Q    Then the answer is no?  Borland C plus plus was not
         available in December of l990?
         A    You can say that.  It's the same - -
         Q    Well, the point is did - -
                        THE COURT:  If he said that would it be true?
                        THE WITNESS:  Yes.
         BY MR. KITCHEN:
         Q    Okay.  So, therefore, you couldn't have had Borland C plus
         plus given to you by Leo Bicknell in December of l990, could
         you?
         A    Yes, it was the same package, yes.
         Q    Did you get Borland C plus plus from Leo Bicknell in
         December, l990?
         A    It was the Borland C plus plus.
         Q    Did you get - -
         A    No.
         Q    Thank you.
                        MR. KITCHEN:  Exhibit 70, Your Honor, which
         could be called a message print-out.
                 (A message printout was marked Plaitiffs Exhibit 70 for
         Identification.)
         BY MR. KITCHEN:
         Q    Let me show you Plaintiff's Exhibit 70 and ask you if you
         recognize any of the material on there?
         A    I'm looking at it.  Any questions?
         Q    Do you recognize it?
         A    Yes, I do recognize it.
         Q    Well, what is it?
         A    It's a response to my inquiry to the support people of
         compu-serve.
         Q    Is that an accurate representation of what their response
         was?
         A    Yes, it is.
         Q    Okay.  What does the second paragraph say?
         A    This product is the same user's product.  It is in
         violation of licensed agreement to run multiple courses at the
         same time, additional manual sets are not made available for
         purchase.  And - -
         Q    You had asked for a second set of manuals, right?
         A    That's correct.
         Q    And they turned you down, right?
         A    Right.  And then Richard - -
         Q    Okay.  That's all I asked you.
                        MR. KITCHEN:  That's all I have, Your Honor.
                        THE COURT:  Anything, Mr. Ostrowski?
                        MR. OSTROWSKI:  No, Your Honor.
                        THE COURT:  Thank you, Mr. James.
                        (Witness excused)
                        THE COURT:  All right.  It's 4:l6.  I don't know
         if it's worth starting with anybody else.  You may if you want.
                        MR. OSTROWSKI:  Your Honor, I'm finished with my
         case except for getting my exhibits in order and - -
                        THE COURT:  All right.  Let me go through the
         exhibits that I have in evidence.
              (Whereupon, at 4:l6 P.M., the hearing in the above-
         entitled matter concluded)


                                        I N D E X

         WITNESS:         DIRECT  CROSS   REDIRECT  RECROSS
         Larry James              1367      1493     1516


         EXHIBIT NO.     FOR IDEN.         IN EVD.
         Plaintiff:
         69                                 1488