UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- September 9, 1993 LARRY E. JAMES, Defendant. ------------------------------------ TRIAL BEFORE THE HONORABLE JOHN T. ELFVIN APPEARANCES: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, New York 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording. Transcript produced by transcription service. P R O C E E D I N G S MR. OSTROWSKI: Could we just deal with a preliminary matter? I may have one of our other witnesses operate the computer with the permission of the Court. We've set it up here. I'm just wondering, if we turn the monitor around and put it on this table facing you, whether that would be -- THE COURT: I could come down. MR. OSTROWSKI: It doesn't matter. We could just do it all here. THE COURT: No. I'll come down. My legs still work. MR. OSTROWSKI: Okay. THE COURT: So what are you going to do? Mr. Swanson is here. MR. KITCHEN: Were we going to continue with Mr. Swanson? MR. OSTROWSKI: Yes. THE COURT: Yes. We're going to get him on and off and back to Jamestown and his work. MR. OSTROWSKI: Yeah. I'm not going to be all that long. THE COURT: Promises, promises. MR. OSTROWSKI: Your Honor, there is one matter I might as well bring up now. Our case is severely handicapped because our computer expert cannot see these programs, and -- THE COURT: Cannot see what? MR. OSTROWSKI: Under the confidentiality order of -- THE COURT: Your expert cannot see the programs? MR. OSTROWSKI: Well, Mr. James is our expert. Now, we have limited funds and we've hired a professor from Canisius who will be coming in to testify. A, we don't have the thousands of dollars it would take for him to do a detailed structural analysis of these later programs. And B, he got one of the programs, the first program chronologically that he claims, that the plaintiff claims is not Mr. James' work, is unreadable. It's in paper form. It's not on computer disk as we requested in our discovery, as was ordered and as we requested it, and ordered in our Subpoena. We don't have it. He's handicapped. He can't look at it on the screen. He can't run computer programs. And furthermore, Mr. James cannot look at these programs to assist me in preparing cross examination and in rebutting the claims. I would ask that the Court reconsider the confidentiality order. We've already established that the -- I should start to refer to Exhibits at this point. Going over 19 and going -- Plaintiff's 19 and going right over -- I'm sorry, skipping over 18 and going right to 19, which was a later program, it's already been conceded by at least two witnesses that Plaintiff's 19 is substantially similar to Larry James' last program and therefore, I think we've already proven to some extent similarity, and therefore I think that goes to -- that lessens the risk of copying, if Mr. James had access to the program. Furthermore, it's undisputed that Brian Martin had access to Plaintiff's 19 when he produced Plaintiff's 20, and there's some dispute about whether that's similar. We're handicapped on that because my expert can't read his copy and Mr. James can't see the program. But in any event, I should certainly think that a Court order preventing him from copying the program or utilizing the program should be sufficient. But at this point we are absolutely stymied on the issue of similarity with respect to anything past Plaintiff's 19. I read over Plaintiff's Exhibit 21 last night. This one I did not see until yesterday. This one was mailed to my expert while I was in Salt Lake City just before the trial. And he doesn't have enough time to analyze this very thick program and it is absolutely Greek to me. So, because we're stymied at this point, I would ask that the Court reconsider the confidentiality order and allow Mr. James to look at these programs so he can help me prepare my case and also testify about them on, when he testifies. MR. KITCHEN: First of all, Your Honor, in terms of time to analyze, the expert, defendant's expert has had more time to analyze these programs in certain respects than has our witness, Mr. Swanson, who has seen some of this stuff more recently. And I think the Court would itself be aware of the fact that Mr. Swanson was able to make some assessment as to similarity and differences on the spot. I daresay that defendant's expert should be able to do likewise. In terms of being able to offer programs, now I have Plaintiff's Exhibit 22 and 23, which I tendered to Mr. Ostrowski yesterday, I believe, and were actually available on the first day, and I, to be honest, I might have tendered them to him on Tuesday. But in any event, one is -- they're both 3- 1/2 inch floppy disks. One is dated 9/30/91. The other is 12/1/92. I haven't, I haven't put them in my own computer or seen what's on them. But I mean, I believe that they contain programs which are, which match the, some of the Exhibits that have been shown. Now, I don't know what more can be provided, and I also offered on the first day to simply swap Exhibit 20 that we had, which was a kind of grey, and so it didn't copy very well, with, with Mr. Ostrowski's copy, so that he would have one that was at least arguably more readable. But in any event, I believe there was testimony yesterday by our expert that said that even the copy that Mr. Ostrowski showed him, which he claimed to be illegible, was certainly legible enough for Mr. Swanson to make some comparisons. So I'm not sure how that really has affected the defendant's expert. But in any event, this is still proprietary material, and we are concerned about letting Mr. James look at them. He's already demonstrated his propensity for marketing them elsewhere. THE COURT: Allegedly. MR. OSTROWSKI: Allegedly. Just briefly, to say that Mr. Swanson has only had a short amount of time to look at them is absurd. He wrote a couple of these programs and he had access to the others. My expert is looking at them for the absolute first time. Now, once the trial commences, I don't have time to be running over to Canisius with a thick piece of paper and meeting with my expert. I've got other things to do. I can't even eat lunch half the time. And he wanted them on floppies so he could compare them to his other software. I think that in light of the, some of the holes that we put in the credibility of the plaintiff, as far as ownership, he's already admitted that he lied about authoring the program. I think that, to borrow a cliche from injunction law, the balance of hardships on this issue, because of the fact of the late receipt and the improper receipt -- receipt and improper form of discovery material, we've been handicapped, I think at this point a proper remedy would be to allow Mr. James to defend himself against charges that he's a novice, and lack of documentation and so on, and look at these programs so he can give the Court an intelligent opinion. MR. KITCHEN: Your Honor, all I can say is, we've made every effort to correct, to any lack of discovery in this thing by tendering certain items which have been refused in each case. THE COURT: Why have you refused them, Mr. Ostrowski? MR. OSTROWSKI: Well, I haven't refused anything. I mean, if you're talking about a swapping of a piece of paper, I do recall some conversation like that. But it's too late in the trial. These are long, complicated documents. I just physically do not have time to go up and meet with my expert. He's busy. School is starting. It's too, it's too late in the game. It's not in the proper form anyway. My expert was able to make a comparison on paper between Plaintiff's Exhibit 19 and the Defendant's Exhibit which is what we copyrighted. I, the number escapes me, but we'll be talking about it in our case. Just from visual comparison, he didn't even need to put it on the computer, he said it's similar. And now it's even undisputed. I don't even necessarily have to bring in the expert on that point anyway. But when we get into Plaintiff's 20, obviously there's been some additional work on it. And you get into the structural issue. Copyright law protects the structure of a program if it's sufficiently similar in detail, and that requires much more time and probably the aid of these sophisticated computer programs. And he just doesn't have time to do that. So I mean -- THE COURT: Why doesn't he have time? MR. OSTROWSKI: Because the trial, we're in the middle of the trial. He's busy with his -- THE COURT: What's the magic of being in the middle of a trial? MR. OSTROWSKI: That first of all, I have to meet with him, and I have to also prepare -- I have to be in Court, I have to prepare the witnesses and prepare questions, and so on. And I'm doing that -- THE COURT: So what are you asking for? Some continuance of a certain part of your case for that purpose? MR. OSTROWSKI: I'm certainly, I intended to ask at the end of the trial that the Court have a bifurcated situation wherein you would rule on infringement and similarity up to Plaintiff's 19, which is what, the only -- that's the latest Exhibit we've been given any reasonable chance of proving similarity on. And in the event that you do hold for the -- THE COURT: Given, quote, given a reasonable chance, unquote. What's that, that means time? MR. OSTROWSKI: Yes, Your Honor. That after 19 we have the illegible piece of paper, and no -- THE COURT: So how much time would remedy that, not having time? MR. OSTROWSKI: I would think if I got floppy disks of each of these programs to the expert, that perhaps a week or 10 days. But I don't want to be in the posture of asking for an adjournment. We're ready, you know, we're ready to go. Certainly if one -- THE COURT: You're ready to go, but you can't go because of this. MR. OSTROWSKI: On the one -- I mean, there's basically two issues, infringement and -- well, there's several issues, infringement damages and similarity. We're talking about a couple of the programs on the issue of similarity that I would ask, yes, on those specific issues we be given more time. But I'm certainly not trying to stall. I want to get this trial over with, as everybody else does. But I still -- THE COURT: Well, we do have the luxury of not having a jury. MR. OSTROWSKI: I understand that, Your Honor, and that's one of the reasons we did it this way. THE COURT: Which lends itself to the possibility of reasonable contingencies. Much as everybody, and I, want to get the matter done with. MR. OSTROWSKI: Your Honor is more experienced in handling these matters than I am, but I would suggest we forge ahead, finish everything we can, and then either at that point or before that, I get proper disks to my expert and see what he can do with them. THE COURT: So the bottom line is, we shall proceed. MR. OSTROWSKI: Yes, Your Honor. THE COURT: All right. MR. OSTROWSKI: Mr. Swanson again, Your Honor. THE COURT: All right. You're still under oath. (PHILIP C. SWANSON, Plaintiff's Witness, Previously Sworn.) CONTINUED CROSS EXAMINATION BY MR. OSTROWSKI: Q. It looks like I have all the Exhibits. I'll hand them to you prior to asking you any questions about those specific Exhibits. THE COURT: That's satisfactory as long as from time to time I know what particular document Mr. Swanson may be referring to. I and the record. BY MR. OSTROWSKI: Q. Can you tell us what a parameter list is, Mr. Swanson? A. Yes. A parameter list is a list of the limits or the specifics, you know, that you're going to give to, could be a routine, could be a system set up. Or is there a specific context that you're looking for? THE COURT: Oh, it doesn't lend itself to some generalization? THE WITNESS: Yes. It's -- THE COURT: But you can't give that without knowing what he's looking for? THE WITNESS: I did give it. I can, you know, if he wants it tightened down. It's a list -- THE COURT: Well, it sets boundaries. THE WITNESS: Yes, sir. Yes. BY MR. OSTROWSKI: Q. Let me ask you this. Is it correct that a parameter list refers to the form in which information is passed between modules? A. That's usually referred to as an argument list. Q. Argument? THE COURT: As a what? THE WITNESS: As an argument list. BY MR. OSTROWSKI: Q. Could it be referred to as a parameter list in the industry? A. Yes. Q. Yes? A. Yes. Q. Now, isn't it true that the, that the structure of the program, at least in part, refers to the way information is passed between modules? A. Yes. Q. And what did you refer to that, what was the alternate name, other than parameter? I've forgotten. A. Argument list. Q. Argument list. Okay. Now, are you familiar with organizational flow charts as they pertain to computer programs? A. Yes. THE COURT: Organizational what? MR. OSTROWSKI: Flow charts. THE COURT: Flow charts. BY MR. OSTROWSKI: Q. And what is an organizational flow chart in the context of a program? A. An organizational flow chart is a visual map of the logical flow of data and decisions. Q. And that, I take it, would represent on paper, or on computer, the structure of the program, or part of it? A. Yes. Q. And what would be the relationship between the argument list and the, and a flow chart? Would they overlap, or are they different? A. They're different. A flow chart doesn't define your function, the scope of a function, and it doesn't tell you, you know, this function makes this decision. It just tells you, well, this decision is made somewhere. Q. Okay. Showing you, I think we have Plaintiff's 18 through 21, is that correct there? A. Yes, it is. Q. Now, had you previously referred to Plaintiff's 18 and 19 as being Larry James' work? A. Okay. Larry wrote 18 and -- Q. Brian Martin wrote 19, but it's substantially similar to 18? A. Yes. Q. Okay. Have you done an organizational flow chart for 18? A. No. Q. For 19? A. No. Q. Have you done an argument list analysis for 18? A. No. I don't, I didn't see a purpose in that. I did -- THE COURT: Excuse me. What analysis? MR. OSTROWSKI: An argument list, that's also known as a parameter list. THE COURT: But then you used the noun analysis. MR. OSTROWSKI: Well, that, I threw that in. It strikes me that, that that's an analysis. MR. OSTROWSKI: I don't know. We're in a lot of very sharp technical terms here. We don't need to have any throw- ins. MR. OSTROWSKI: That's why I throw in my lawyer's term, analysis. THE COURT: Yeah. BY MR. OSTROWSKI: Q. Did you do an argument list for Plaintiff's 18? A. I did a V-TOC, not -- that doesn't trace the parameter passing or the argument list, no. That's -- Q. What's a V-TOC? A. Visual table of contents. Q. Okay. A. That's another way of breaking down, you know, or another way of looking at the structure. It doesn't so much show you logical flow like a flow chart would. It's -- Q. Well, you stated yesterday that simply listing the subroutines or routines in, in order in which they appear on paper, doesn't really tell you much about the structure, is that correct? A. That's correct. Q. And that's, was that more or less what a V -- how do you spell that? A. V-T-O-C. That's an acronym, visual table of contents. A V-TOC does tell you the order of calling in the calling hierarchy. Q. But it doesn't tell you information about the structure of the program? A. Yes, it does. Q. Okay. Didn't you state yesterday that the simple order in which routines are listed does not give you much information about the structure? A. Yes, I did. Q. And what's the difference between that and a V-TOC? A. I have a partial V-TOC if you want, you know, want me to grab that, I can -- THE COURT: Is that T as in Thomas or P as in Peter? THE WITNESS: T as in Thomas, Your Honor. THE COURT: Table. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. What's the difference between a V-TOC and simply going through the program, taking all the subroutines and listing them in order? A. When you list the subroutines in order, you've got a list of the subroutines. It doesn't -- Q. But the -- A. It doesn't tell how they relate to each other. It's a list of names. Q. Okay. And what is, what information does a V-TOC add to a simple -- A. It defines which routines support other routines. It defines the potential for order of calling these routines. Q. But that's not a, an argument list? A. That's correct. V-TOC is not an argument list. It's -- well -- Q. Okay. So I, I lost track, but is it true that on Plaintiff's Exhibit 18 and 19, you've done neither an organizational flow chart nor an argument list? A. That's correct. I wouldn't -- Q. Okay. A. I wouldn't want to. Q. Well -- A. Well, for exhaustive, yeah, I would get into it. Q. Well, I'm just asking you, you haven't done that? A. That's correct. Q. Okay. And Plaintiff's, how about for Plaintiff's 20, have you done an argument list? A. No. I don't do argument lists. That's -- you're talking about a data flow. Q. Organizational -- A. It sounds similar to a data flow diagram, okay, which is also different from a flow chart. Q. Well, all I'm asking, you know what an argument list is? A. Yes. Q. In fact, I didn't know until you told me, but it's also known as a parameter list? A. Yes. Q. Okay. But some people might use the words somewhat differently, but I'm talking about argument list. THE COURT: When you say you don't do argument lists, do you do parameter lists? The answer must be no if they're approximately the same. THE WITNESS: As a form of analysis, no, I do not. THE COURT: Yeah. All right. So you don't do either, even if they are quite the same. THE WITNESS: That's correct. THE COURT: All right. BY MR. OSTROWSKI: Q. Well, just to clarify argument list, I believe you've already stated that it refers to the form in which information is passed between modules? A. That's correct. Q. Would it also refer to the information's actual content? A. That's part of it. If you're just going to list the arguments, that's a necessary part of knowing the information. That's not the whole picture. Q. Okay. Is it correct that modules have to share similar argument lists so that they can exchange information? A. Yeah. Your calling routine and your called routine have to have the commonality of the argument list, yes. Q. Okay. So have you done an argument list for Plaintiff's 20? A. No, I don't do those. Q. Plaintiff's 21? A. No. Q. Have you done an organizational flow chart for Plaintiff's 20? A. No, I don't do the flow charts. I've done -- I have -- I've developed V-TOC's for this, which I don't know if I have with me, you know, as part of developing the program. But the two -- Q. But that's neither an argument list nor an organizational flow chart? A. That's correct. Q. Okay. Have you done an argument list for Plaintiff's 21? A. No, I don't do argument lists. Q. Have you done organizational flow chart for Plaintiff's 21? A. No, I rarely do organizational flow charts. Q. Okay. Now, you stated that on Larry James' programs, which I would take it clearly 18 is his? A. Yes. Q. You stated there was a lack of documentation? A. Yes. Q. Now, if a programmer come up with a novel program that he wanted to guard against copying, and that was an important concern to him, would he be less likely to include documentation or more likely to include documentation? A. I wouldn't say it really affects it one way or the other. Q. Adding documentation would not make it easier for someone to copy the program? A. No. It'll make him easier, you know, to go through and understand on an initial reading that if they've got the source code, hey, they already got it. You know, documentation is just to explain to humans, what am I doing here. You know, they can, you can dig and you can get it, but -- Q. Well, wouldn't the documentation, if somebody wanted to copy the program in its detailed structure of routines and subroutines but not the source code, in order to avoid a charge of infringement, wouldn't the documentation help them do that? A. I don't see -- okay, to copy a program with the detailed functions and subroutines, without copying the source code, routines are source code. If you've copied one, you've copied the other. Q. Well, you stated yesterday that the same function can be expressed in different source codes, is that correct? A. You can -- sure, you can make the call from different places. Q. In fact, you stated that virtually every programmer has their own -- well, let me ask you. Isn't it correct that every programmer has their own way of expressing themselves in source code? A. Yeah. There's usually style differences. You know, like if a company says, do it this way, then you do it that way, but -- Q. You mentioned style. Is the word expression similar to -- A. Sure. Q. -- the way you use style? A. Sure. Q. Okay. A. Yes. Q. So the same, the same function can be expressed using totally different source codes? A. You can make the same -- okay. Can be expressed? Q. Yeah -- well, no, I'm sorry. No. That's an error on my part. You -- the same function can be accomplished by using different source codes? A. Yes. Q. Okay. Now, what -- if you were copying a program, wouldn't one of your goals be to make it seem similar to the user? A. Yeah. If you want the end product, yes. Q. And what -- and part of the user's understanding of the program is derived from documentation? A. From external documentation. Okay. We're -- I'm -- documentation that appears in source code is typically referred to as internal documentation. The user never sees it. Q. Right. But, okay, what is the purpose of internal documentation? A. It's for the programmer, so he knows what, you know, what's going on. Q. Okay. So are you denying that this internal documentation would aid someone in copying a program if they wanted to copy a program? A. Yeah. They -- if -- okay. It's depending on, okay, what other sources do they have? If you have source code, you really don't need the documentation. It's very very helpful if you want to understand things. Q. Okay. A. But you can -- Q. And you're saying that -- A. You can tap it in. Q. Are you saying that understanding the program would not help you to copy it in a different source code? A. You have to -- yes. You have to understand the source code if you're going to make a copy of it. You know, well, now, when you say copy -- Q. Well, I'm not sure if you're answering my question. What I'm saying is -- A. I'm sorry. THE COURT: Well, let's get on the same beam anyway. BY MR. OSTROWSKI: Q. You said that documentation helps the programmer to understand the program, right? A. This is correct. Q. Are you also -- if I understand you, you're also saying that understanding the program does not help you copy it, yes or no? A. No. You do need to understand a program to reproduce it. Okay. Now, when you say copy, I'm assuming you're not just saying, oh, well, I sit down and I type. Q. Well, no. I mean, nobody does that except, of course, Brian Martin's version. A. Right. Right. If -- you have to have the concept and you have to understand it to reproduce it. Q. So adding document -- internal documentation would help to some degree someone in copying a program? A. Yes. Q. Okay. So isn't it true that if a programmer come up with a novel program that he was very concerned about somebody copying, he would be less likely to include extensive documentation? A. No. No. Q. Okay. A. Okay. Q. Well, you answered the question. A. Okay. I -- Q. You answered the question. A. Okay. Q. I'm going to move on. How many -- now, you stated that you -- did you get your BA in 1988? A. Yes. Q. Okay. What -- well, so, and since then you've been, I take it, working in computer, in the computer programming field? A. Yes. Q. Okay. So that's a total of three or four years after school? A. Before school, six or seven years. After the bachelors, another three or four, yeah. Q. Well, I take it you went to school in order to bring your knowledge of programming up to the state of the industry? A. Yes. Q. You think it would be possible for a novice programmer to write a program that was considered to be the best in the industry? A. If they had -- sure, if they had guidance. Sure. Q. Well, without guidance, do you think a novice programmer could come up with a program that was considered by some to be the best in the industry? A. It's within the realm of possibility. I would say it's not likely. Q. Okay. So if somebody did write a file retrieval program that was considered to be the best in the industry, could you categorically state that that person is not a novice? A. I'd want to see the code. Q. Okay. Well, could you -- A. Could I categorically state, absolutely for sure? No, I don't have enough information just by -- Q. Okay. Now, we talked about, we talk about subroutines. Are there any particular subroutines that are more important than others? A. There are certainly subroutines that are called more often. There are subroutines that do what you may consider -- THE COURT: That are, excuse me, called more often? THE WITNESS: Yes. It's a -- okay, in Plaintiff 18 they call frequently a routine called shades. That sets up a color scheme. You know, you call that from a lot of different places. Yeah. More, I suppose you could call them more important. You need every piece to fill the whole puzzle, but you could stretch. BY MR. OSTROWSKI: Q. Well, on Plaintiff's 18, what would you consider to be the most important routines, or subroutines? A. The mainline routine. Nothing goes without that. Q. The mainline, is that called int main? A. Yes. Q. Now, would it be -- is it possible to do a structural analysis of one routine, apart from the whole program? A. Yes. It's -- you may have problems, when you pull a routine out of context you may have problems seeing how it relates back to the whole. Q. I -- I -- I'm sorry. You done? I take it you can't do a parameter, an argument list analysis because that has to do with a different -- A. Well, a good analysis without the whole program, no. You really should have more information to do it right. Q. Now, you stated that there were about 49 functions -- A. Yes. Q. -- Plaintiff's 18? A. Plaintiff 18. Yes. Q. Would it be possible for you to tell us what the three, four or five most important ones are? A. Well, okay. I would name the mainline because nothing goes without the mainline. Q. On any program? A. Right. Q. Okay. Important, well, okay, what -- Q. How about int list, which would be very, very close to the end of the program? A. Yeah. That's -- could I tell you -- I can't tell you the most three or four, you know, like three or four, five, and these are the most important, no, because it's -- Q. Well, how about, if I give you specific programs, could you tell me if they're more important than average? THE COURT: This is in 18? MR. OSTROWSKI: On 18. Yes, Your Honor. THE WITNESS: I have -- okay. I have trouble with the word important, because every piece is critical to complete that design. If you want to talk about routines that are called more often, if you want to talk about a routine that does more with its supporting subroutines, you know, this is, important is a little, a little sketchy. BY MR. OSTROWSKI: Q. Okay. A. Yeah, you know, the major routines. Okay. We could say, in general, your top level routines, your mainline and usually works out in the design that the ones that it calls right off of the mainline are more important. They tend to do more things, you know, because they're toward the top of that supportive structure. THE COURT: In what we're talking about, this noun calls is something that doesn't relate to somebody being in Cleveland, another person being in Chicago, but rather someone sitting in, in front of the computer and calling into the program for data. Is that what you're talking about? THE WITNESS: I'm sorry, sir. THE COURT: You used, calls. THE WITNESS: Yes. THE COURT: What are calls? THE WITNESS: A routine call. THE COURT: You're sitting there with your computer. You're calling into the computer. Or are you in Chicago calling Buffalo? THE WITNESS: This is not, this is not like a phone call. THE COURT: That's what I meant. THE WITNESS: This is a -- okay, this is an access to that routine. When you -- THE COURT: You're sitting in front of your computer and you're having an access or a call. THE WITNESS: The computer really does this, not so much the user. The user does it -- THE COURT: You push a button. THE WITNESS: Yeah. You do it indirectly and the computer handles the details of the computer call. You call it by, I make a menu choice. And yeah, indirectly you're calling the function, but the computer handles all this, all that stuff. THE COURT: Yeah. You want a particular menu and it regurgitates it. THE WITNESS: Yes, sir. THE COURT: Is that a call? THE WITNESS: Yes, Your Honor. THE COURT: That's a call. THE WITNESS: That's not a function call. THE COURT: What's -- well, now we have different kinds of calls. THE WITNESS: Yes, sir. You could -- yes, you could say that's a call. When you make a menu choice, you're calling something up. And indirectly, a function call. But it's, you know, it's -- THE COURT: What's a function call? THE WITNESS: A function call is when a routine has to summon up one of its supportive routines. It says, oh, okay, I'm, I have -- a routine has a task to do. You do some detailed stuff, and you say, well, I've got this chunk, now I've got to list the whole file. It's best to break that out. Complex functions, it's best to push them down and break them out. You give that whole task, which is a complex task, to another function. That is a function call when you get to that point. BY MR. OSTROWSKI: Q. Okay. I'm going to ask you about three or four of the functions of these programs. I'm not going to ask you to go through 49 or do an organizational flow chart, but -- THE COURT: Thank you. BY MR. OSTROWSKI: Q. -- with respect to, is there an int help function in the, Plaintiff's 18? A. Yes. Q. It would be about page 6? A. Yes. Q. And is there an int help? THE COURT: Excuse me. What are you calling that? MR. OSTROWSKI: It's I-N-T space, help. And then there's a few -- THE COURT: I-N-T H-E-L-P, with a space between the T and H. MR. OSTROWSKI: Yeah. And then there's some more characters, but that's sufficient to identify it for the witness. BY MR. OSTROWSKI: Q. I'd ask you to look at that briefly. It looks to be about a half a page, or one page, possibly. THE COURT: This is about page 6 -- THE WITNESS: It's about a page. THE COURT: -- in Plaintiff 18. Is that what you said, Mr. -- THE WITNESS: Yes. BY MR. OSTROWSKI: Q. It's, yeah, it's page 6 on my copy, which I think is about the same. It might be -- THE COURT: Who has the original? MR. OSTROWSKI: I'm sorry, Your Honor. I did an analysis of Defendant's 1, which is virtually identical. It may be off by a half a page. THE WITNESS: This -- THE COURT: All right. But it isn't going to be helpful to me to have the wrong page. THE WITNESS: This is about two thirds of the way down on page 5 on this copy of Plaintiff 18. MR. OSTROWSKI: They're not numbered in any event, Your Honor. THE COURT: Fifth sheet, an unnumbered sheet? MR. OSTROWSKI: Yes. THE COURT: The fifth sheet? MR. OSTROWSKI: Yes. BY MR. OSTROWSKI: Q. Okay. I would ask you to look at Plaintiff's 20 and see if there's any similar subroutine. THE COURT: What page? MR. OSTROWSKI: I don't know, on Plaintiff's 20. THE COURT: I know, but this is -- you've got to be dealing out of the same deck. Otherwise it's not going to make any sense to me if I can't correlate this. MR. OSTROWSKI: It's unnumbered. THE WITNESS: He has a void help function versus the int help, so yeah, he's using the same name. MR. OSTROWSKI: Your Honor, Plaintiff's 20 is the one that is somewhat illegible, and it's not numbered, in any event. THE COURT: But it does have sheets, and they are -- are they clipped together or -- THE WITNESS: No. They're unburst. THE COURT: Oh, they're all separated. MR. OSTROWSKI: Perhaps we could use paper clips. MR. KITCHEN: Judge -- THE COURT: Get the big stapler. MR. KITCHEN: Might I suggest that we just take a couple of minutes and just put a number on each page. THE COURT: Well, first of all, I'm going to get them so it makes an integral document. It can't be flying around the courtroom in five different places. THE WITNESS: Your Honor, those sheets are unburst. If you staple them, they'll stick together. They won't be good. THE COURT: I have that same trouble. What I do when I get them out, I tear them all apart. MR. OSTROWSKI: We could, well, we could burst them, which is the function you just described, Judge, and then just staple them at that point, or we could simply number them by hand. That shouldn't take but a couple of minutes. Might be pretty practical if we get into this any more extensively. MR. KITCHEN: If we each take one, we could probably do it in about two or three minutes. MR. OSTROWSKI: Right. THE WITNESS: Gentlemen, I would -- THE COURT: Why don't we burst it. MR. OSTROWSKI: Right. THE COURT: You get some overlaps -- THE WITNESS: It's a little harder to follow the bottom of one page to the -- THE COURT: Yeah. THE WITNESS: I'm used to seeing them unburst. THE COURT: Yeah. THE WITNESS: If it works better for you to burst them, you know, we'll do it. THE COURT: Well -- MR. OSTROWSKI: If we're going to burst them we better number them first so they don't come out of order. MR. KITCHEN: I agree. THE COURT: Again, at some point for analysis you might want to open them up to look at, for example, the -- where the second sheet joins the third the dividing line runs right through the typed line. THE WITNESS: Yeah. It helps you -- THE COURT: So half of the line is above and half below. THE WITNESS: Also for lining up braces, you know, on two different pages, you got to hold them up and, you know. THE COURT: Well, is this a continuous strip all the way through? THE WITNESS: Yes, Your Honor. THE COURT: All right. So it's already integral? THE WITNESS: Yes, Your Honor. THE COURT: I don't have to worry about that. MR. OSTROWSKI: I'm only going to ask him about five routines, and perhaps he could paper clip it or -- THE COURT: Well, you don't have to. It's integral. Until it's burst, it's integral. MR. OSTROWSKI: Should we number the pages, Your Honor? THE COURT: Don't have to. As long as I know what sheet you're on, you can identify it either by it being the 15th sheet or by the sheet that starts with bloop, bloop, bloop. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. My question is, is there any routine in Plaintiff's 20 that is similar to, and I mean generally similar because you haven't really looked at it in detail, that is sort of a counterpart of the program in Larry James' program which is 18 called int help, et cetera? A. Yeah. There's a void, there's a void help in Plaintiff 20 and -- THE COURT: Void help? THE WITNESS: Yes. THE COURT: Is that the same as int help? THE WITNESS: No. It -- THE COURT: He asked you about an int help. THE WITNESS: There's no int help. THE COURT: All right. BY MR. OSTROWSKI: Q. What does void mean in that context? A. The function returns as a value. The function returns a value. With int help it returns an integer value. Q. Does that make any practical difference? A. Yeah. I don't know it in -- okay -- Q. Well, what I'd ask, I'd ask at this point to take a look at them, each program, and I'll ask you some more questions. A. Okay. I'll -- let me find help in here and then -- Q. Basically I was going to ask you if they are similar and in what respects, either in source code or function. A. I would expect some similarity, certainly. Your Honor, I don't want to waste the Court's time. Is it -- can I get to this on an electronic copy? THE COURT: I don't know. Gentlemen, the witness has a question. THE WITNESS: If I could yank an electronic, you know, an electronic media copy, I could -- THE COURT: Wait a minute. Wait a minute. I don't think the attorneys are even listening to you. They're very rude. They're very rude. They're not even listening to you, Mr. Swanson. MR. OSTROWSKI: I heard the question. I just don't know the answer. MR. KITCHEN: Not only we have been listening, Your Honor, but we have an answer, I believe, that Plaintiff's Exhibit 22 would do exactly that. THE WITNESS: Would it be okay if I look, look on that instead of look through this? MR. OSTROWSKI: Which one is this? THE COURT: They're running the show. I'm just listening. You're speaking. I'm listening. MR. OSTROWSKI: I have to consult with counsel, Your Honor, to get out Exhibits straight. What are you saying this Plaintiff's 22 correlates to? MR. KITCHEN: Well, it has the date on it, 9/30/91, and I'm assuming it's going to correlate to Exhibit 18. THE COURT: Which has the same date. MR. OSTROWSKI: I have no objection to that receipt in evidence, subject to questions about whether in fact it is, you know, identical. THE WITNESS: Do you have something -- THE COURT: How are you going to surmount that? MR. OSTROWSKI: Well, if I come up with any evidence that it's not identical, then I suppose I would -- I suppose it doesn't matter. THE COURT: It can be in anyway. MR. OSTROWSKI: Yeah. If it's not identical, it's not identical. THE COURT: All right. Plaintiff 22 is received. MR. OSTROWSKI: Into evidence, Your Honor? THE COURT: Received. (Plaintiff Exhibit 22 for identification was received in evidence.) THE WITNESS: Okay. Here we go. I got it. Here's help on Plaintiff 20. MR. OSTROWSKI: Do we have -- THE COURT: Now you're back on 20? MR. OSTROWSKI: I'm asking a question of counsel. Do we have floppy disks for 20? MR. KITCHEN: That I don't believe so. MR. OSTROWSKI: Would it help you to look at one on the screen and one on paper or -- THE COURT: Well, one. What's one? MR. OSTROWSKI: I'm saying, one, would it help him to look at -- THE COURT: O-N-E and not Exhibit 1. MR. OSTROWSKI: Yeah. Would it help you to look at 18 on the computer and the other one on paper, which is Plaintiff's 20? THE WITNESS: Okay. For this question though I found the routines right now. MR. OSTROWSKI: You found it? You found it? THE WITNESS: Yes, sir. THE COURT: Now you said something about Plaintiff 20, Mr. Swanson. THE WITNESS: Yes. I was, I understood I was to look for the corresponding help routine. THE COURT: Between 18 and 20? THE WITNESS: Yes. MR. OSTROWSKI: Okay. THE COURT: And you found it. THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Approximately what page is that on or, it looks like it's near the front, so perhaps you can -- A. Okay. THE COURT: Can you identify it any better than that? THE WITNESS: Okay. On Plaintiff -- THE COURT: At the top what the first word is or something like that. MR. OSTROWSKI: If you want to use the pen to mark pages off until you get to that point. THE COURT: You can make the witness work. MR. OSTROWSKI: You just mark them up, you know, anywhere, as long as -- THE COURT: All right. Let's take a recess. Paginate the thing and we'll know what we're doing. We'll recess. (Recess taken.) THE COURT: It doesn't help to speed the trial along by letting me escape into the back room where I get tied up with five different things. BY MR. OSTROWSKI: Q. Do you recall which function I was asking you about before the break, because I've -- A. Yes, the help function. Q. -- forgotten. Have you had a chance to look at the help function on Plaintiff's 18? A. Yes, I have. Q. And have you had a chance to compare that to a comparable program in Plaintiff's 20? A. Yes, I have. Q. And what's your opinion on whether they're similar or different and -- A. There's similarities and differences, and certainly, you know, you're giving help, so you need, you need to call up your help information, you need to call up, you know, throw up the screen and make keys available to navigate up and down this list. There's different, you know, the methods are a little bit different used in the two. Q. Is there any source code that's similar? A. Yes. Q. Between 18 and 20? A. Yes. Q. What lines, can you specify? A. Okay. 18, okay, these are similar. Q. Could you -- THE COURT: But these mean nothing as far as the record is concerned. THE WITNESS: Yeah. BY MR. OSTROWSKI: Q. What page, what page are you on in each document? A. Okay. On Plaintiff 18 I'm on page 5. On Plaintiff's 20 I'm on page 63. Q. And on Plaintiff's 18 what line, whereabouts is that line, could you put your initials at it, just so -- A. Yeah. I'm about a paragraph down. I'm talking about the while, the while loop that looks for the correct help. Q. Okay. And on the Plaintiff's 20, where approximately on the page is it and could you put your initials there? A. Yes. It's about halfway down on the page. It's -- THE COURT: So that was page 63? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. And those two lines of the code are similar? A. Yes. Q. In the source code. Are there any other similarities in the source code between the two functions? A. Yes. Yeah. They're similar functions. Yeah. There's -- Q. Could you just -- A. Sure. Q. -- take a look at the programs and come up with an estimate as to the number of lines of code which appear to you to be similar or identical? A. Okay. Okay. Let's go with similar. Oh, let's call it 50%. Q. Okay. So the source code is, between the two functions, is 50% similar? A. Yes. Q. Okay. Are any of the functions similar? A. Yeah. They're doing the same, they're doing the same type of thing, yes. Q. Give us an example -- THE COURT: Identical? THE WITNESS: No. BY MR. OSTROWSKI: Q. Give us an example of one of the similar things they do. A. Okay. Both of them come in. You save -- okay, this doesn't save -- you look through the list of help to find the appropriate help subject. That's similar. We do some screen set-up in each of them. Then we cruise for input from the user to navigate the list. You know, page up, page down, all that. THE COURT: Cruising and navigating are technical terms? THE WITNESS: No, these are, those are very informal terms, Your Honor. Then we await input from the user, like a - - that will let him look through the list like he wants, you know, a page up, page down, to scroll the list appropriately. BY MR. OSTROWSKI: Q. Before I forget, are you being compensated for your, for appearing here today? A. No, I'm not. Q. Okay. Are you receiving compensation from Richard Graham, generally? A. Compensation for this, no, I'm, you know, I'm contracted for other projects. THE COURT: Mr. Kitchen made mention yesterday of some cost to the plaintiff of bringing you here for an extra day. That's not true? THE WITNESS: He's, he's floating my meals, yeah. THE COURT: Oh. THE WITNESS: Is he -- am I on like -- I'm sorry. THE COURT: He's paying your costs and mileage. THE WITNESS: Yeah. Yeah. Well, I don't know if I'm -- see, we didn't discuss a lot of this because I didn't want to -- THE COURT: You didn't? Before you came in, you didn't get this arranged? THE WITNESS: If I -- okay. I didn't want to look like I was having my testimony bought, okay, so I just said -- THE COURT: Every expert gets paid. THE WITNESS: I don't want it to look like he's buying my testimony. And Richard is an upright guy. I'm sure -- MR. KITCHEN: Your Honor -- THE COURT: Wait a minute. It may, it may appear more that you're on his side and helping him if you come here for nothing than if you come here being paid. Let me just put that on the -- MR. KITCHEN: Your Honor, I must respectfully object to the Court's educating the witness about these matters to my client's possible financial detriment. THE COURT: Send me the bill. BY MR. OSTROWSKI: Q. Okay. How much income have you derived from your association with Mr. Graham? A. Let's see. Well, $17,000, $18,000 since I've been on, you know, since I've been doing -- $17-$18 K, thousand, you know, since I've been doing the -- Q. $18,000? A. Yeah. I haven't done taxes this year. We'll take a guess. Q. No wonder you're not charging to be here today. Okay. Now, just another thing before I forget. You are -- who is the current programmer on Mr. Graham's file retrieval system? Is that you, is that Brian Martin? A. That's me. Q. Okay. And Brian Martin is out of the picture? A. On this retrieval I think he's out of the picture, yeah. Q. I'm just asking you if you know. THE COURT: You seem to be looking to somebody to get an answer. BY MR. OSTROWSKI: Q. If you know yourself? A. No. I think he's out of the -- yes. THE COURT: All right. THE WITNESS: As far as I know, he's out of the picture. THE COURT: Draw down the curtain in front of you so you don't look for winks of eyes or smiles or nods of heads. THE WITNESS: I'm un, you know, I was just unsure, Your Honor. I'm sorry. I'm not familiar, as you're aware, with courtroom procedure. BY MR. OSTROWSKI: Q. Okay. Now, let me skip over to -- I asked you look at a couple other routines. Can you tell me if you've had a chance to look at any of those, and we'll go in that order, and you can tell me which one it is. A. Okay. I haven't looked at them yet. THE COURT: What are we on now? MR. OSTROWSKI: Well, I -- THE COURT: Still on 18? MR. OSTROWSKI: Yeah. I'm asking him to compare 18 and 20. I rattled off a few programs during the break and I'm asking him if he's looked at those, and then we'll identify them. THE COURT: On both, both Exhibits. MR. OSTROWSKI: Yes. THE WITNESS: Not yet. BY MR. OSTROWSKI: Q. What I'm asking you to do, and I'll just tell you the whole list because it's short, and you find them if you can, there's a program in -- in the Plaintiff's 18 he's got an int dir, then there's some paragraph signs, but -- THE COURT: Int what? MR. OSTROWSKI: Int dir, which I think -- THE COURT: Directions? MR. OSTROWSKI: -- it means directory. THE COURT: Directory. BY MR. OSTROWSKI: Q. Is there, is there a similar program in the other one, and I mean similar in any sense of the word, because we'll get into whether they're actually similar when you look at them. And should I tell you what the other ones are, right off? A. Okay. Help, dir, list, execute and shades. Q. Execute, list shades and what was -- A. Okay. We did help. Q. Help is done. Execute screen 2. A. Execute screen 2? Q. I'm sorry. Execute, in other words, the next function is screen 2, which I take it, if there's a screen 1, it could possibly be similar. I'd leave that up to you. A. Yeah. It throws up a screen. Q. Int list, and int shades. A. Uh-huh. Q. That's about -- THE COURT: Wait a minute. You're back to the uh- huhs again. THE WITNESS: Yes. Yeah. I was -- BY MR. OSTROWSKI: Q. That's all, those are all the ones I'm going to ask you about, so if you can -- A. Okay. Q. -- take a look at those and -- A. Okay. We did help. Q. Help is done. A. Dir. THE COURT: D-I-R. THE WITNESS: I've got to find out what dir does here. THE COURT: D-I-R. THE WITNESS: Yes, sir. Would it be okay if I look at my V-TOC so I can -- THE COURT: Look at your what? THE WITNESS: The V -- well, no, I don't need. I can just -- THE COURT: What was the word you used? THE WITNESS: V-TOC, visual table of contents. BY MR. OSTROWSKI: Q. Let me tell you, on Plaintiff's 18, you might look around page 9 for dir. I say about because -- THE COURT: What Exhibit? MR. OSTROWSKI: On Plaintiff's 18. THE COURT: 18. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. And on Brian Martin's, which I think we've now numbered, that should -- well -- A. I don't think there's a dir name. Q. There may not be a dir on there. A. I got to find the corresponding, you know, the functionality is what I got to find here, so I got to see what dir is doing. Q. Yeah. There's, on page 7 of -- THE COURT: Of what? MR. OSTROWSKI: I'm sorry. I'm sorry, Your Honor. THE COURT: Page 7 of what? MR. OSTROWSKI: The index I have for Brian Martin refers to, unfortunately refers to 19, so I'm -- scratch that. We've already established that 19 is similar. I'm moving on to 20. BY MR. OSTROWSKI: Q. Is there anything in Brian Martin's that correlates with int dir on page, roughly page 9 of Plaintiff's 18? A. Yes. Q. Okay. A. That's where he's calling up, you know, when you make the main menu choice and then you go to call up your listings, that's, that's what they're doing. Q. Can you identify the page numbers where you find each -- A. The menu choice. Yes, sir. Okay. I think in the corresponding routine on Plaintiff 20 is get main menu choice, and that's get, underscore, main, underscore, menu -- THE COURT: G-E-T? THE WITNESS: Yes, Your Honor. THE COURT: And this has not been paginated? MR. OSTROWSKI: What pages are you on on each one? THE WITNESS: I'm on, okay, I'm on the routine call. THE COURT: Is there a page? THE WITNESS: The routine is called on page 6 in Plaintiff 20. BY MR. OSTROWSKI: Q. And what about in Plaintiff's 18, int dir? A. Okay. I'm not sure what page it's called from the routine itself, appears on page 8. The dir routine itself appears on page 8 in Plaintiff 18. Q. And have you had a chance to look at those routines? A. Yes. I just looked at dir, and I, you know, know from background, you know, what the get main menu choice does here, but I would, I would like to flip to it. Okay. Here we go. Get main menu choice appears in Plaintiff 20 on page 12. Q. Okay. A. And you're just interested in similarities? Q. Yeah. First source code and then I'll ask you about structure. A. Okay. Okay. Yeah, okay, the similarities here start down a little, a little farther. I'm sorry. I sometimes talk to myself. Q. It's all being recorded though. A. All right. The dir routine on Plaintiff's 20 does -- THE COURT: Where? THE WITNESS: On page 8 of Plaintiff's 20, does part of the stuff that is done in the get main menu choice routine on Plaintiff's 20, and that routine covers pages 12 to -- THE COURT: Wait a minute. You started with 20, page 8. Did you mean 18? THE WITNESS: Yes. Plaintiff 18, page 8. THE COURT: All right. THE WITNESS: The dir routine compares to the get main menu choice routine which is found in Plaintiff's Exhibit 20, page, it's starting on page 12. BY MR. OSTROWSKI: Q. Okay. Are there any similarities in the source code between those two functions? A. There's some. They're not as -- yeah, there are a few. Q. Can you estimate the percentage of similarity? A. I'd put this at 15, 15, maybe 20%. Q. Okay. And I take it if certain source code -- you can do the same function with different source code, correct? A. Yes. Q. But if two programs have the same source code, they're going to be doing the same thing? A. Yes. Q. That's like an axiom. A. If there's the same source code, they're the same program. Q. Yeah. So with respect to the, that part of the program which is not the same in the source code, do you find any specific similar functions or subroutines, however you want to describe it? A. Yeah. Yeah. There's some similarities. Q. And what are those? A. Okay. Okay. You're setting up your screens in dir, in dir on Plaintiff's 18. You're setting up your screens. I think we're setting up screens here, too. Wait a minute. No, no, maybe not. Display category, no. Boy, there is really not a lot there that is similar. No, there's not, there's not a lot of similarity between these. Q. Okay. A. Okay. Q. Can we move on to -- have you located another function that I mentioned, and I'll go in the order in which you've looked at them or spotted them. And we're talking about -- we just did dir, right? A. Yes, sir. Q. So I suppose we're talking about execute 2, list. THE COURT: Execute 2? THE WITNESS: Yes. THE COURT: EXE or execute? THE WITNESS: It's spelled out execute. THE COURT: 2? BY MR. OSTROWSKI: Q. Yes, but the 2 might, I don't know what significance that has. It might -- A. I don't -- okay. I think that may be execute, because I don't recall an execute 2. Q. Well, I'm asking -- THE COURT: You're using 2 also. THE WITNESS: I didn't find, I don't recall an execute 2 in Plaintiff's 18. THE COURT: All right. THE WITNESS: I recall an execute. THE COURT: All right. BY MR. OSTROWSKI: Q. What I'm asking you in -- is to look at the execute 2 in Plaintiff's 18, which should be around -- THE COURT: Well, he doesn't find the execute 2. He finds an execute. MR. OSTROWSKI: I'm sorry. BY MR. OSTROWSKI: Q. Could you look around page 36. THE COURT: In 18? BY MR. OSTROWSKI: Q. Give or take a page. MR. OSTROWSKI: I analyzed the wrong Exhibit, Your Honor. I'm sorry. They may be a half -- THE COURT: In engineering we call that tolerances, but go ahead. MR. OSTROWSKI: Well, I hope you're tolerating it. It should be a half a page off, at most. THE WITNESS: In Plaintiff 18 you're on page 36? MR. OSTROWSKI: Yeah. THE WITNESS: No, I'm not -- MR. OSTROWSKI: Do you find any -- THE WITNESS: I'm not finding it here. I think, I recall that routine. It ought to be in here somewhere. Execute. Okay. Execute 2, yeah. It says, execute 2. BY MR. OSTROWSKI: Q. Okay. Can you take a look at that and then see if you can find a counterpart to that, however it's labelled. I take it it would be labelled execute something or other. A. Oh. I don't think -- no, let me check first. THE COURT: This is one of those situations, to use the vernacular, perhaps you better put your brain in gear before you open your mouth. THE WITNESS: Yes, Your Honor. You got it. Okay. Execute. THE COURT: In other words, you do a lot of talking to yourself while you're thinking, but all that talking is going on the record. THE WITNESS: It's garbage. Yeah. That has got to be basic. Okay. I can't ask Rick a question? Okay. How much you paying me, but -- okay. Execute 2 in Plaintiff's 18 -- MR. OSTROWSKI: Right. THE WITNESS: -- deals with verifying -- okay, deals with running a basic program. THE COURT: Do you find a 2 there? THE WITNESS: Yes. Execute 2. THE COURT: All right. THE WITNESS: And that's on page 29 in Plaintiff 28. MR. OSTROWSKI: I was way off, okay. BY MR. OSTROWSKI: Q. And what does that do? A. Okay. Q. Briefly? A. That confirms that you really want to run a basic program and then it makes sure you have the stuff necessary to run that program, ie., GW Basic or Basic A, some supporting software. Q. Is there anything in Plaintiff -- THE COURT: Ie. is Latin and not computerese. THE WITNESS: Yes. THE COURT: All right. BY MR. OSTROWSKI: Q. Is there anything in Plaintiff's 20 that does a similar function? A. I don't know if we were still using Basic programs, you know, had the Basic shell at that point or not, and if we're not, if we weren't using the Basic, then there's nothing there. If we were, then -- THE COURT: Who is we? THE WITNESS: Night Owl's Publisher. THE COURT: Oh, you're a part of that? THE WITNESS: Well, I'm independent but you know, it's my code, it's his code, it's, you know, it's -- BY MR. OSTROWSKI: Q. Do you have 19 there? A. I don't believe so. No, sir, I do not. Okay. Let me trace it. I gave it back. Q. Showing you Plaintiff's 19, is that the one that says complete -- A. Source code of Brian's work is on it. Q. Okay. A. Plaintiff's 19. Q. Can you look on page 28 and see if you find an execute 2 function? A. Execute 2. There you go. Q. Okay. A. Yeah. This looks similar. Q. That looks similar to Plaintiff's 18? A. Yes. Q. Now, taking, taking the execute 2, which is in Brian's, I think we're calling it his first version. THE COURT: Plaintiff 19? MR. OSTROWSKI: Plaintiff's 19. BY MR. OSTROWSKI: Q. Does that aid you in finding any similar program in the other program that Brian worked on, which is Plaintiff's 20? A. No. Q. Okay. Thank you. Now, did you locate just a plain old execute in -- THE COURT: Plain old, meaning without the 2? MR. OSTROWSKI: Yeah. Let me just check my notes, Your Honor. BY MR. OSTROWSKI: Q. Okay. Did you see an execute program on, in Plaintiff's 18, somewhere around the middle, I wish I could tell you exactly. A. Yeah. I -- THE COURT: Go back to your page 36, plus or minus one. MR. OSTROWSKI: I was off by six pages on that. I did it on the plane, Your Honor, so somebody must have bumped into me. THE WITNESS: Okay. Yeah. Here you go. Plaintiff's 18, page 16, we got int execute. MR. OSTROWSKI: Okay. And -- THE COURT: Without the 2. MR. OSTROWSKI: Do you find -- THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Can you take a quick look at that, just to get a rough idea, and then hopefully you can see if there's any similar program on Plaintiff's 20. THE COURT: The cup's over on the other table, over here. THE WITNESS: Of course, there's a similar function in Plaintiff's 20, unless I missed my guess here it's going to be display file manipulation window. That's what I'm going to look for. Okay. Yes. Okay. That's -- BY MR. OSTROWSKI: Q. What page and name of the -- what's the name and the page? A. Okay. Plaintiff's 20. THE COURT: Plaintiff's 20? Is this in 20, Mr. Swanson. THE WITNESS: Yes, sir. Okay. Plaintiff's 20, page 23 begins, the routine display file manipulation window. BY MR. OSTROWSKI: Q. Is there any similar source code between that program and int execute in Plaintiff's 18? A. Yes, there is. Q. And look at it, look at it as long as you need to, and tell me, what is the percentage of similar source code? A. Okay. Okay. That's going to be kind of low. Yeah. We'll go with 15 or 20% again. Q. Okay. What -- A. Call it 15. Q. With respect to those portions of the routine that are not similar in source code, are they similar in specific function? A. Yeah. Q. And how so? A. Yeah. Some of them. Q. Okay. A. Okay. The similar parts were thrown up a, were thrown up a window that, okay, this is your highlighted file, this is your directory, and here are some commands you can use on this screen. Then it goes down into, both of them go down into getting a command from the user, a command key, and executing the appropriate function. Q. Okay. A. And a little cleanup. Q. Any other similarities? A. Okay. They both throw up, yeah, they both throw up a screen. They both clean up -- THE COURT: Screen and window the same thing? THE WITNESS: Yes. THE COURT: You said throw up a window before. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Any other similar functions? A. Okay. There's one, that's the bulk of it, there's one little thing here. THE COURT: Where? THE WITNESS: On Plaintiff's 18, this while thing. Okay. Yeah. That's -- he's getting the selected file name. That's part of your window display. Yeah. That's about it for similarity, yes. BY MR. OSTROWSKI: Q. The last thing you mentioned, he's getting what? A. He's just pulling in the -- THE COURT: He is who? THE WITNESS: Larry's code. He -- THE COURT: 18? THE WITNESS: Yes. He's just getting the name of the highlighted file on the screen. BY MR. OSTROWSKI: Q. Now with respect to the functions that you stated were similar, above and beyond the source code, were those the only ways to accomplish those tasks, or were there other ways? A. No. I'm sure you could do it a bunch of different ways. There are different ways. Q. Okay. But you notice the similarity in the way it was done on Plaintiff's 18 and 20? A. There's some similarity, yes. Q. Okay. Now, I just want to move on to the next one that you've been able to find, and I'll prompt you if -- have you located another one, shades? A. Okay. THE COURT: Excuse me? THE WITNESS: Shades I think is towards the bottom on 18. MR. OSTROWSKI: Int. On Plaintiff's 18 it's called int shades, which is -- THE COURT: Spell that. MR. OSTROWSKI: -- right near the end. Should be. THE WITNESS: Yeah. THE COURT: Capital N? MR. OSTROWSKI: I said, right near the end of the program, for the -- THE COURT: Oh. I don't know what you're saying though. MR. OSTROWSKI: I'm sorry. I-N-T, space, S-H-A-D-S. THE COURT: Ink shade. MR. OSTROWSKI: Int. It stands for integer, I believe. THE COURT: I-N -- MR. OSTROWSKI: I-N-T. THE COURT: T, as in Thomas. MR. OSTROWSKI: Yeah. BY MR. OSTROWSKI: Q. Is that correct, that int stands for integer? A. Yes. Q. Okay. And in Plaintiff's 18, have you located that near the end? A. Yes, I have. That's on page 32 in Plaintiff's 18. Q. Is there any similar program in Plaintiff's 20? A. A similar routine? Well, no. No. It's, you're stretching to say they're similar. Management of colors is handled in a little bit different ways. Q. In which? A. Between 18 and 20. THE COURT: Management of? THE WITNESS: Management of the screen colors. You know, I want blue borders, I don't want this, you know. Let me see if I can -- you want me to find the -- MR. OSTROWSKI: Yeah. THE WITNESS: -- nearest -- okay. Probably the nearest thing is going to be set, set color and set -- is that set color and set monitor. Set monochrome -- I'm sorry. BY MR. OSTROWSKI: Q. Well, I was just going to say, is this the function that has all these case 1, case 2? A. Yes. Q. Which directs the computer on what color is going to be on the monitor, something like that? A. Yes. Q. Okay. And I take it you're looking for anything similar in 20? A. I'm looking for the nearest similar routine. That's going to be set monochrome or set color. Q. Okay. A. And I know what they do. See, well, you know, you tell me what you want to know. Q. Well, you're still looking for it, I take it? A. Yes. Okay. Set color, set monochrome. Here we go. Q. Okay. What page do you have there on 20 now? A. Okay. On Plaintiff's 20, I have page 61. It contains both the routines, set color and set monochrome. Q. And, okay, you've named the routines. Now, are there similarities in source code between that and int shades on Plaintiff's 18? A. No, not -- no, not in the -- from nothing, no. In the broadest sense, well, we're defining some colors here. Q. But that's not particularly original -- A. No, they both define colors. Q. -- I take it, to define colors? A. No. Q. Okay. Are there any, in the overall structure of that subroutine, are there similarities in function in a very detailed way? A. No. Q. Okay. Can you find -- I don't think we've done int list, or have we? A. Should I be tracking my, you know, making notes on where we are in this thing, if I'm going to need to get back. THE COURT: Need paper? MR. OSTROWSKI: I should have had an extra cup of coffee this morning. BY MR. OSTROWSKI: Q. Okay. I know we've done help, we've done execute. THE COURT: Do you need paper? THE WITNESS: No. I have a sheet, Your Honor. Thank you. THE COURT: All right. BY MR. OSTROWSKI: Q. We've done help, we've done execute, we've done execute 2. We just did shades. I think we're working on list. A. Okay. THE COURT: List? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. And int screen? MR. OSTROWSKI: Or did we do int screen, Denis? MR. KITCHEN: No. I don't think you did. THE WITNESS: I don't think we did, we didn't do screens. BY MR. OSTROWSKI: Q. Okay. List and int screen, I guess are the only ones remaining. A. Okay. Q. What's the difference between shades and screen? A. Shades -- Q. Shades is just colors? A. Okay. It's the way in which they're calling up these colors. Shades -- Q. I mean just generally. A. Shades explicitly redefines your colors, every time you call it. The set color and the set mono, they just set up an initial definition and then you refer to it later. That's the chief -- Q. Okay. A. That's the, you know, a major one. Q. So have you located either list or screen? A. No. I'm flipping. Q. Now, on -- A. See the listing that is. Q. Now, screen might be screen or screen 1 or screen 2? A. Okay. I got a screen 2 here. Q. I guess, you're looking on 18 first, I take it? A. Yes, sir. Q. Okay. Screen 2. THE COURT: That's in 18? MR. OSTROWSKI: That's on -- what page is that on? THE WITNESS: Page 17 on Plaintiff 18. BY MR. OSTROWSKI: Q. How -- and that's called screen 2? A. That's called screen 2. Q. Okay. Do you find any similar program on -- well, first of all, let me go to Plaintiff's 19 and ask you to look around page 17. A. Page 70? Q. 17. For a screen 2. A. Screen 2. Q. Okay. A. Page 17. Q. Now, on, between 18 and 19, are they the same programs? THE COURT: 17 and 19? MR. OSTROWSKI: I'm sorry. THE COURT: 17 in 19? MR. OSTROWSKI: Between 18 and 19. THE COURT: Right. BY MR. OSTROWSKI: Q. Are they the same program? A. These are quite similar. They're quite similar. Q. In fact, they're identical, aren't they? A. So far, they're looking identical. I'm just doing, I'm doing a line at a time here. Okay. Yeah. Q. Okay. You've only taken a quick glance, but you haven't spotted any differences at all, have you? A. That's correct. Q. Okay. And that's in the source code? A. That's correct. Q. So all the functions would be identical? A. Yeah, these two are identical. Q. All the structure would be identical? A. That's correct. Q. Okay. A. Well, yeah. Q. Yeah. Going from 18 and 19, which are identical, is there anything similar in 20? Whether it's labelled screen or some other program. A. Display -- okay. All he's doing in screen 2 really is you're just throwing up a window in a box. THE COURT: Screen 2, in where? THE WITNESS: In screen 2, in both Plaintiff's 18 and 19. THE COURT: Well, you said they were practically identical. THE WITNESS: Yeah. You're -- he's just throwing up a box here and clearing a box. You know, putting up a little, a nice isolated box on the screen with a border around it. BY MR. OSTROWSKI: Q. I take it there's any number of ways to do that, however? A. Yes. Q. Okay. A. And I know we draw boxes in here. Q. In Plaintiff's -- I'm sorry. Go ahead. A. I, I don't know if it's tied -- if we take, you know, if we're pulling out one routine to do the box or if we do it individually as needed. Q. Well, you say we, but you didn't work on 20? A. Right. Q. You worked on 21? A. Right. Q. Okay. Is there any similar to that in, to that program, which appears on 18 and 19, is there anything similar in 20, whether it's labelled that way or not? A. I would assume that there's something in there. THE COURT: Don't assume. THE WITNESS: Okay. THE COURT: Unless it's something you can reliably do. THE WITNESS: Okay. Well, let me, I better find it then. I'm just going to look around for some likely places. MR. OSTROWSKI: This is our second last comparison. THE WITNESS: Draw border is a good possibility. Okay. And we're talking about Plaintiff's 20 here. MR. OSTROWSKI: Right. THE WITNESS: The one we're looking for. Okay. Here we go. Probably your nearest match is going to be draw, the routine draw border. MR. OSTROWSKI: Okay. THE WITNESS: Which appears in Plaintiff's 20. THE COURT: Routine what? THE WITNESS: Draw border. That's draw -- THE COURT: Routine draw quarter. THE WITNESS: Border. Draw, underscore border. That appears in Plaintiff's 20, starting on page 60. BY MR. OSTROWSKI: Q. And are there any -- what's that called again? A. Draw, underscore border. Draw under border. Q. Okay. Are there any similarities in source code between draw border and, in Plaintiff's 20, and screen 2 in 18 and 19? A. Oh, yeah. You're going to have to -- yeah, there's going to have to be some, because this is -- Q. What is the percentage of similarity in the source code? THE COURT: You're just guessing. You say there has to be some, and now he's asking for some -- THE WITNESS: No. There's got to be some because you're -- THE COURT: All right. Some can be 1%, right? THE WITNESS: Right. I'm going to tighten it up here. Okay. These are -- we've got a line of code that's similar and then a line of code that's different. Let me -- can I -- BY MR. OSTROWSKI: Q. Well, just overall, have you had a chance to look at it? A. Yes. Q. How long is the program, lines? A. Oh, they're a shorty. They're half, half page. Q. Okay. Can you, can you take a look at each and just give us an estimate of the similarity in source code? A. Okay. I would, on a line by line I'd say 50%. I'd really say less than that. I'd say like 30 because you're passed on different arguments with the one, and they're present in the Plaintiff's 18. Q. So about half or more is not similar? A. Yes. Q. And with respect to that half, do they have similar detail functions? A. These call no other -- THE COURT: This is the half that's not similar or the half that -- MR. OSTROWSKI: Yes. The half that's not similar, because we've -- yeah. THE WITNESS: That's not similar. No. The half that's not similar, you're not calling any further user to find support functions. BY MR. OSTROWSKI: Q. Okay. The last section I was going to ask you about, in these versions anyway, was list, int list, which was in, should be in Plaintiff's 18. A. Okay. Q. I hesitate to give you a page number. A. I wonder if that was towards the -- Q. I think it's towards the end. It should be. It's a long one, too. A. List, here we go. Q. Okay. A. Plaintiff's 18, page 30, about halfway down the page it starts. Q. Okay. And -- THE COURT: What's it say there, int list? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. Now I'm going to ask you to -- well, let's go to 19, Plaintiff's 19, page 28, and ask you if those programs are similar in source code. THE COURT: Similar to int list? MR. OSTROWSKI: Yes. THE WITNESS: They're similar, yeah. BY MR. OSTROWSKI: Q. Okay. There's very few differences in the, even in the source code, isn't that correct? A. Yeah. They're looking like they're matching up pretty well. Q. Okay. And I'd ask you to go from 18 and 19, it's pretty much the same program, and compare that, see if there's anything in 20 that matches. A. Okay. Q. That is roughly the same. And then I'll ask you more detailed questions. A. Okay. I'm trying to think what would be the nearest -- okay. Hang on. I got to be sure -- we're dealing with a couple files here. I've got to -- you wanted me to look in Plaintiff's 20 for -- Q. Yes. A. Okay. Well, this must be, looks like it's looking at a view and not a dir file. THE COURT: None of this is getting on the record, and I don't know if it should be or not. Some is and some isn't. MR. OSTROWSKI: Well, it sounds like he's just thinking out loud and so I'm not concerned. THE COURT: I know it, I just noticed he wasn't thinking out loud into the microphone so probably it's not being recorded, which is probably the best. BY MR. OSTROWSKI: Q. Okay. A. Okay. Plaintiff's 18, page 30, list routine is similar to Plaintiff's 20, page 31, view zip file. Q. Do you mean that in terms of -- THE COURT: Excuse me. What was that? Page 30, 31, what? THE WITNESS: View zip file. THE COURT: Capital U space zip. THE WITNESS: V-I-E-W, underscore, zip, underscore, file. BY MR. OSTROWSKI: Q. When you say similar, do you mean in source code? A. Okay. In -- no. Q. I'd ask if there was source code first and then we can go on to function. A. Okay. Let me check. Q. I'm asking for the degree of similarity in source code. Percentage? A. This is about 20-25%. THE COURT: Similar. THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q. And with respect to the portions that are not similar in source code, are there any similar functions or structure? A. Well, yeah. You're doing -- you're -- this is the nearest match I could find, you know, and so I am looking for similarity in function. Okay. Yes, there is some similarity in function between the two. Q. And what is that? A. Okay. We're going in, again we throw up a screen, we allow -- and throw up a list, and we allow the user to navigate the list. Q. Now, the way -- okay, any other similarities? A. They do some -- there's a little bit of allowing the user to input some more contact sensitive commands, you know, that he can do a few more commands off of this screen. THE COURT: This is what? THE WITNESS: This is an either, that's similar to these. THE COURT: I know, but what, both Exhibits? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Okay. Now, with respect to the functions that you said are similar, throwing up the screen and creating a contact sensitive command, are there numerous ways to accomplish that function for a program? A. Yeah. There's a couple ways you usually stick to. Q. Okay. So that, the way it was done in that program is not necessarily the only way to do it or one of only two ways? A. That's correct. THE COURT: That program is which Exhibit? MR. OSTROWSKI: Plaintiff's, well, we're comparing 20 and 18. List to view zip. MR. KITCHEN: Well, I'll object. When he says that program, unless he can say how program 18 does it versus program 20. MR. OSTROWSKI: Well, actually, I'm sorry, let me clarify. I'm mistaken. I'm asking him strictly about Plaintiff's 20 with respect to the functions that he found similar, which I take it are throwing up the screen and contact sensitive command. BY MR. OSTROWSKI: Q. And my question was, there are more than one or two ways to do those functions, is that correct? A. That's correct. Q. Okay. Now, let me just ask you, with respect to the five or six things we spoke about, help, execute, screen, list, shades, and int main, and I think also dir, and there may have been a couple of executes, and now I've stated so many things that you probably can't remember them, but my question is, to go to Plaintiff's 21, do you have that up there? A. Yes, sir. Q. Let's go in some sort of order, and ask you if there are any programs, subroutines, that are roughly similar to the ones I just mentioned in Plaintiff's 18. And I'll, I'll read them off again, if you need them, but execute, list -- A. Yeah. They're going to be similar. Q. If you can answer off the top of your head, fine. A. They are going to be similar functions. One is just, you know -- Q. Well, can you take them in some sort of order, and whatever preference you want to deal with them. A. Okay. THE COURT: Well, can we operate on an MO here where while you're thinking and mumbling that we can go off the record, and then you say, quote, here we go, unquote, and we'll go back on the record? THE WITNESS: Certainly, Your Honor. THE COURT: All right. BY MR. OSTROWSKI: Q. Mr. Swanson, I'm showing you Plaintiff's Exhibit 35. Can you identify that? THE COURT: Wait a minute. We're on the record? MR. OSTROWSKI: Yes, Your Honor. THE WITNESS: Yeah. This is my backup of the Night Owl's retrieval. BY MR. OSTROWSKI: Q. Okay. Now, you've looked at Plaintiff's Exhibit 21, which is a printout? A. Yes. Q. Is that the same program that's on Plaintiff's 35 in computer form? A. Should be. THE COURT: Should be or is? THE WITNESS: I can't say it is. I can't, I can't guarantee it is. It should be. I don't, I don't trust it unless I see it. MR. OSTROWSKI: Your Honor, would you prefer that this be offered into evidence at this time, or -- THE COURT: I don't care. MR. OSTROWSKI: Okay. I'd ask that -- THE COURT: What did he do? BY MR. OSTROWSKI: Q. I'd ask that you put it into the computer and bring it up on the screen, and my first question is, is it the same as Plaintiff's 21? My question is, is Plaintiff's 35, which is the floppy disk, the same as Plaintiff's 21, which is on paper? THE COURT: Why don't you play the emcee. Pull that microphone out of its hawsel there, Mr. Ostrowski. Pull it right out. Pull it out. MR. OSTROWSKI: I feel like Tony Bennett. THE COURT: That's what you have to do. When you're talking, you talk into it, and put it in front of his mouth when he's talking. BY MR. OSTROWSKI: Q. Okay. What I'm going to ask you to do is, are those six or seven programs that we've been over, and we can specify them if you like, or you can specify them in order in which you find them, are they, are there similar functions in Plaintiff's Exhibit 21 and 35 as there are in Plaintiff's 18? A. Okay. Well, 21 and 35 are the same, so they're going to be similar. MR. OSTROWSKI: Yeah. I'm going to go over here. THE COURT: No, no. You -- he's monkeying with -- he's going to be doodling with the computer from point to point. MR. OSTROWSKI: Well, hold it. I have to get my notes. THE WITNESS: Okay. And Plaintiff's 18, let me grab Plaintiff's 18. MR. OSTROWSKI: I'll get it. THE WITNESS: Thank you. What page was that on, on 18? MR. OSTROWSKI: Right at the beginning. Near the beginning. THE COURT: Of 18? MR. OSTROWSKI: Okay. We're looking at help. THE COURT: Of 18? MR. OSTROWSKI: Of 18, which is on page 5. BY MR. OSTROWSKI: Q. And is there anything similar on, on your program, 35? A. Yes. Q. Okay. Have you located the, your entire function, of help? A. Yes. Q. Okay. With respect to the source codes, what's the percentage of similarity? A. I put this Plaintiff's, or the Exhibit 35, help function at about 25% similar to the Plaintiff's 18 help function. Q. In source code? A. Yes. Q. And with respect to the part that's not similar, are there similar specific functions? A. Okay. We're using, we're using the help lines that are the same main data structure. Q. What do you mean by data structure being the same? A. This is a table of, it's a method of organizing your data. It's a data structure. Q. And that is the same on both programs? A. It's named the same, and it's a char array. Q. What do you mean char? A. Char, this -- Q. Character? A. Character. Q. It's an abbreviation for character on the program? A. Yes, sir. This, it's a char array for both outlines and you know, they're just, the length may be different. Yeah, there's going to be some similarity. Q. Any other similarities in function? A. Okay. Well, of course, you get, okay, this is context sensitive help, so you've got to find out which, what your context is. We come in and we search for an index, or we search for our place, the appropriate help. Q. Would you say that this is a sophisticated program? A. Which? Q. You're, the one you're looking at on 35, which, have you called yours help? A. Yes. Q. Okay. Now, would a novice programmer develop a sophisticated program, generally? A. No. Q. Okay. Now, you identified one similar function, the character array and data structure, or is that two -- A. That's, yeah, similar data structure. Q. Okay. Any other similar functions? A. Okay. Now, you know, you're -- no. Q. Okay. Then let's move on to the next similar function you can find, and we're talking again execute, screen, list. A. Do you have a preference? Q. Whatever you find first. It's up to you. A. Let's look at 18 and see what those Q. On 18, well, how about int main? THE COURT: Pardon me? MR. OSTROWSKI: I-N-T main. That's one of the first few pages of 18. THE COURT: One of the first few pages? MR. OSTROWSKI: I have page 4 on my version but it may be 3 on yours. THE COURT: Who has the original? THE WITNESS: Main starts on page 3. THE COURT: Why don't you use the original? You're going to have different pagination. MR. OSTROWSKI: The problem, Your Honor, is, I did my analysis of Defendant's 1 and I can't identify Defendant's 1 unless Mr. -- I suppose it's marked for identification, but it's really Mr. James' program and I haven't really fully identified it, and I'm at risk of asking other witnesses about it. THE WITNESS: Okay. I found -- okay. On Plaintiff's 18, page 3, we start the main line, int main. THE COURT: What's it say? THE WITNESS: Int -- THE COURT: Int main, or what? THE WITNESS: Int, yeah, int main. THE COURT: What's, that's what it said. THE WITNESS: Yes, sir. BY MR. OSTROWSKI: Q. And is there any similar function or subroutine on Plaintiff's 35? THE COURT: And you're really asking, is there any similar function on 21 because 35 is the disk version of 21. MR. OSTROWSKI: Yes. 21/35. THE WITNESS: Okay. You're looking for similarity between 18 and 35, 21, whatever. MR. OSTROWSKI: Yes. THE WITNESS: Okay. BY MR. OSTROWSKI: Q. Is it possible to do a symbol search, to see if there's any -- A. I can search on a string. Q. Take an obvious, one of the more basic elements of the program in 18 and see if there's the similar language in your program? A. There's going to be similar, you know, your C functions are going to be calling some of those -- Q. Will that help you find similarities? A. Not really. Not really. Q. Okay. Now I'd just ask you to do it your own way. A. And you're looking for a percentage of similarities here? Q. Well, any -- THE COURT: He's looking for similarities, period, and then we'll get to percentages, I assume, if any. THE WITNESS: There are similarities. BY MR. OSTROWSKI: Q. Okay. Between 35 and 18? A. Yes, sir. Q. Okay. And what, speaking of source codes first, what is the percentage of similarity? THE COURT: In what code? MR. OSTROWSKI: Source code. THE COURT: Source code. Excuse me? MR. OSTROWSKI: You got to speak up, or think to yourself. THE COURT: Yeah. Are we off the record, and you're going to tell us when to get back on, Mr. Swanson? THE WITNESS: I put it at 15%, even 10%. BY MR. OSTROWSKI: Q. Okay. And with respect to the parts that are not similar in source code, are they similar in structure or function? A. No. Similar in function, yes. You've got a file retrieval and you're calling up a menu. Similar in, what was the other one, method. This is not similar in method. Q. Okay. There's no similar functions at all, beyond the similar source code? A. Minimal. Few enough so that it's coincidental. Q. Okay. Let's move on then to the next one we can locate and the list we're looking for is execute, screen, list, and shades? A. We did -- did we do execute? Q. I don't -- not on 21, to my knowledge. A. Okay. Q. Okay. You've located, what have you located in 35 that is roughly speaking in 18? A. Okay. In Exhibit 35 I've located the routine display, file manipulation window. Routine actually starts -- Q. You're going a little too fast. What did you locate? A. Display, underscore, file, underscore, manipulation, underscore, window, and in the code on 35 that starts on page, on line 2198. Q. Now, what page are you on in your floppy? Do they have page numbers? A. I have a line number, 2198. In this Exhibit? Q. Well, I guess if you could it fast, then that would help. A. Okay. Who's got a calculator? 2198 over 66. Could we go off the record? Okay. This same display file manipulation window appears in Plaintiff 21, starting at the top of page 36. Q. Okay. And that's similar to what in Plaintiff's 18? A. That is similar to Plaintiff's 18 execute routine starting on page 16. Q. And what's the degree of similarity with respect to source codes alone? A. I'd put this at 7 percent similarity. THE COURT: Mr. Ostrowski, you want an answer? MR. OSTROWSKI: Yes, Your Honor. Sorry. BY MR. OSTROWSKI: Q. Okay. I asked you about source code similarity between execute on Plaintiff's 18 and display file manipulation window on Plaintiff's 21/35? A. I put that at about 7%. Q. 7%? A. Yes. Q. Okay. With respect to the rest of the program that's not similar in source code, are they similar in function or structure? A. Yes. Q. And what are the similarities? A. In each case, you are, you're thrown up a window, you are displaying valid commands that the user can use, and you are then awaiting input on those commands. And in each case you also make the appropriate routine call. So we throw up a window. You say you can use these commands. You allow the user to select one of those commands, and then we go do that command. Q. Now, did you get those function ideas from looking at the prior programs, such as 18, 19 and Plaintiff's 20? A. No. All I have to do is -- I got it from this. Q. From which? A. From Plaintiff's -- Plaintiff's 18 is the one you asked, is the one I'm looking at, and that -- Q. No, no. I'm saying, when you -- THE COURT: No. He's going back to the generation of Plaintiff 21 and Plaintiff 35. MR. OSTROWSKI: When you, when you wrote -- THE COURT: In generating it, did you get that from 18? In producing it? THE WITNESS: Oh, no, no. THE COURT: In inventing it. THE WITNESS: No, no. THE COURT: All right. BY MR. OSTROWSKI: Q. Okay. So the similarity in source code of 7%, is that just an accident or what? A. They are doing similar kind of things, you're going to have to have some similarity. Q. Okay. It's not based on the fact that you started out with Plaintiff's 20, which may or may not have been similar to Plaintiff's 18? A. That's correct. Q. Okay. So we've covered help, main and execute, and now we're looking for execute 2, possibly screen, list and shades, four more. A. Could we go off the record, please? Q. Okay. You were looking for the next program you could find on our informal list? A. Yes. Q. What have you found? A. I've found that in Exhibit 35, 35 and 21, on Exhibit 21, page 38 begins the routine execute, underscore, program. That is some similarity to Plaintiff's 18 routine execute 2, which begins on page 29. Q. And what's the degree of similarity in the source code? A. 25%. Q. And what's the degree of similarity in function of those parts that are not similar in the source code? A. Similarity in function is high. Let's go 80%. Q. Does that 80% pertain to the 75% that is not the same in source code or the whole program? A. That's the whole routine. Q. Okay. Can you give us one or two examples of similar functions? A. Yes. In each case we go in and we verify that we're dealing with a basic program. We identify it by a BAS extension. And then you, once you determine that, then you continue to make sure that you have the necessary software somewhere on the user's system to run that BAS file. We then continue -- okay. We then continue to throw up a window. You let the, you display commands so the users know what's going on. That's about it. Q. Okay. Now, are there any number of ways to accomplish those functions, in general? A. Yeah. There's a couple of ways you could do this. Q. Well, by a couple, are there more than two or three? A. I'd say yeah, let's, let's call it three, four. You know, you can do something real wild and strange and not obvious, if you want. Q. Okay. But that's -- A. Standard, yeah. just a few. Q. But within the realm of efficiency, there are different ways to do it? A. This is correct. Q. Okay. Now, is this execute -- what did you call it, the name of the -- in your program it's called execute, in 35? A. Execute, underscore, program. Q. Would you consider that to be a sophisticated program? A. This routine? Q. Yes. A. No. Q. Okay. A. This is just a part. Q. Could a novice have written it? A. Sure. Q. Okay. And -- A. The routine or the whole program? Just the routine? Q. Just the execute program? A. Yes. Just the execute routine, sure. Q. Okay. Now, we're moving on to whatever we can find next, list, shades, whatever you can find first. It's up to you because you're the one that has to do the work. A. Could we go off the record, please? Q. Sure. THE COURT: Tomorrow morning, available 9:00 to 12:00 and if we aren't finished then, you've got to go off to October 12. MR. OSTROWSKI: I take it we'll be going the rest of the day? THE COURT: Yeah. MR. OSTROWSKI: Okay. THE COURT: Not beyond 5:00 o'clock though. MR. OSTROWSKI: If we -- and then we have tomorrow morning. Otherwise we move -- THE COURT: Tomorrow morning up till -- MR. OSTROWSKI: If we press -- THE COURT: -- up till noon. MR. OSTROWSKI: I have three or four witness -- four or five witnesses, but other than Mr. James they should all be short. THE COURT: Well, I'm just telling you what you have. You've got tomorrow morning 9:00 to 12:00, today up till 5:00 o'clock I can give you. Then we got to go off till October 12th. MR. KITCHEN: Your Honor, if there were real hope of completing by tomorrow morning, obviously it would be better if we got the thing done with, but if we can't complete tomorrow morning, if at all possible I would like to avoid tomorrow morning. And in other words, if we have to -- THE COURT: Do you have some special problem, tomorrow morning? MR. KITCHEN: Well, only personal plans, Your Honor, which -- THE COURT: Well, that's all right. Personal plans are personal plans. MR. KITCHEN: Right. Okay. But in any event, you know, if we've got to break to October 12th, I would rather break at the end of this afternoon to October 12th, rather than also taking up tomorrow morning. And it may be difficult anyway, but -- THE COURT: I share your pessimism about being able to complete it in another half -- I mean this afternoon and tomorrow morning, the way things are going. MR. KITCHEN: I daresay it's going to be unlikely that I'll be resting before the end of the day, because I think Mr. Swanson will be on here a little while longer. And then Mr. Graham, I know -- THE COURT: We have to complete him. MR. KITCHEN: Yes, and I'm sure the redirect has got to be somewhat extensive, and I'm sure that will inspire some recross. THE COURT: All right. We'll go today till 5:00 o'clock and then we'll go off to October 12th. MR. KITCHEN: Thank you. THE WITNESS: I'm ready to go on the record when you are. THE COURT: We're going to lunch. (Lunch recess taken.) THE COURT: All right. Everybody well fed and prepared? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Mr. Swanson has that lean and hungry look. MR. OSTROWSKI: Shakespeare. Ceasar's I think. Okay. THE COURT: I see that one guy doesn't find it too cold in here. THE WITNESS: I'm ready to go. CONTINUED CROSS EXAMINATION BY MR. OSTROWSKI: Q. Okay. Before the break, I had asked you to search out any other similarities between Plaintiff's 18 and Plaintiff's 21/35, and I believe you've located a couple, and whatever you're ready to talk about, why don't you identify that. A. Okay. We were talking about show text. I think we were talking about show text file, which is the -- THE COURT: Talking about what, Mr. Swanson? Show tech? THE WITNESS: Show text. THE COURT: Show touch? THE WITNESS: Show text, T-E-X -- THE COURT: T-E-C -- T-E-S -- S-H-O-W, space? THE WITNESS: Yes. Show, S-H-O-W, underscore, text, T-E-X-T, files. And that is on Exhibit 35. That's a -- okay, line 4420. And in Exhibit 21 -- BY MR. OSTROWSKI: Q. Where is the page? THE COURT: I put aside two days, beginning the 12th. I'm beginning to wonder if that's enough. THE WITNESS: Okay. I can answer the questions I suspect are going to be asked. BY MR. OSTROWSKI: Q. Well, I take it that if you divide 4420 by 66 you get the page number of Exhibit 21? A. Yeah, you ought to be pretty close. You ought to be pretty close. Q. Okay. THE COURT: Seems to be 79. THE WITNESS: On page 72 of Plaintiff 21 the routine show text file begins. BY MR. OSTROWSKI: Q. Okay. And what about -- THE COURT: Shows what, Mr. Swanson? THE WITNESS: The routine show text file begins on page 72 of Plaintiff 21. THE COURT: 21. BY MR. OSTROWSKI: Q. Okay. And what about Plaintiff's 18, similar program? A. Okay. That was, that was list. Q. Okay. And list -- THE COURT: L-I-S, Mr. Swanson, L-I-S? MR. OSTROWSKI: L-I-S-T. THE WITNESS: L-I-S-T. THE COURT: L-I-S-T. BY MR. OSTROWSKI: Q. And that's near the end, I believe, in 18? A. Yes. Okay. I have it. On Plaintiff's 18, page 30. Q. Okay. What are the similarities in source code between those two programs? A. About 30%. Q. And disregarding the portions that are similar, if you can, in source code, and taking the other portion that's not similar in source code, are there similar functions or structure? A. Yes. Q. And what are those similarities? A. They're about, they're about 40%. Q. Could you list some of those? A. Certainly. Okay. You're going to come in, you display a screen, you allow the user to enter input, or you know, enter a command. And you process, you process his valid choice. Q. Choice of what? A. Choice of command. Q. And are there any other, are there any number of ways to do that, perform that function? A. There are a few, yeah. Q. Okay. So the way it's done in, the way it's done in Exhibit 35, Plaintiff's, is just one of a number of ways to do that? A. Yes. Q. Okay. Are there any other similarities in between list and show text file? A. No. That, that covers. Q. Okay. Then I'd ask you to move on to -- okay. We've covered help, main, execute, execute 2, and show -- and list, and I think we have, do we have screen and shades left? A. I think we did -- okay, we didn't do shades versus this. Q. Yeah. Why don't you do that, if you can. I think you said that 18 and 20 were not similar on shades, is that correct? A. That's correct. Q. Okay. A. And the -- Q. Now I'm asking you about 18 and 20 -- 21/35? A. And they are not similar. Q. And you've looked at and they're not similar? A. Yes. This is, yeah, 18 is not similar to 21. Q. Even in source codes? A. No. Q. Okay. And -- A. Only vaguely. No, it's not similar. Q. Did you locate -- I don't think we did screen yet, did we? A. I don't know if we did screen on this one, on 21. Okay. Screen in Plaintiff's 18 which appears on page 35 of that Exhibit, all it really does is, it just throws up a box. COURT RECORDER: Can you speak up, please? THE COURT: You can pull that microphone out and just carry it with you, but put it down, but you have to speak into it, one way or the other. THE WITNESS: Yeah. THE COURT: We don't have any of these fancy lapel pins we can give you. THE WITNESS: I'm sorry, Your Honor. Screen, the screen routine on Plaintiff 18, page 35, all it basically does is draw a box. You give it a box size to draw and it draws it and clears the screen. BY MR. OSTROWSKI: Q. Okay. And -- A. We're going to do that like that. I think it's done a couple of different ways, or you know, a couple of different places in here. It's just a different method. It's -- yeah, our corresponding routine in Exhibit 35 and 21 is draw, underscore, a border. And that begins at, on Plaintiff 18 it begins in line 6355 of the code. Q. You mean 35? A. Yes. Q. 65, what? A. Line 6355 is the line number it starts on. Q. And where's that in -- that's -- A. Page 90. Q. Well, actually I was asking you about 18. Let me see if I can give you a clue. MR. KITCHEN: Page 35 on 18. THE WITNESS: Yes. What was I looking for? Screen. Yeah. Plaintiff 18, page 35 has the routine screen, which is your nearest corresponding. BY MR. OSTROWSKI: Q. And is there any similarity in the source code between 35 and 18? A. Yes. Q. Okay. What's the percentage of similarity? A. Okay. I'd refer back to the way it was compared on, what was the last line, 20? Q. 20. A. Because this is, the routine in 21 is, I could take a look but it looks like the same routine as appears in 35 here. Q. Same in the source codes? A. Yes. Q. Okay. The last one I don't think I asked you about, int dir. Or, did I? On 35. A. This one? THE COURT: Int what? MR. OSTROWSKI: I-N-T D-I-R. THE COURT: V-I-R? MR. OSTROWSKI: D-I-R, as in dog. THE COURT: D-I-R, is that it? No space? MR. OSTROWSKI: There is a space. It's I-N-T, space. THE COURT: I-N-T, space, D-I-R. MR. OSTROWSKI: Yes. BY MR. OSTROWSKI: Q. Now, on 18, that should be around 7 or 8 or so. It's a pretty long program. A. Okay. This is, the important distinction is this is a routine, not a program. Q. Okay. Yeah. I understand. A. Well, they're kind of the same, they're kind of not. I'm looking for dir on 18. Q. It should be after install, by a page or two. A. Dir, okay, the routine dir appears in Plaintiff 18 on page 8. Q. Now, is there anything similar in -- THE COURT: 21? BY MR. OSTROWSKI: Q. 35/21? A. What was our, our routine that corresponded to dir in -- Q. Get main menu choice, I think. A. Okay. Can I go off the record just for a second, please. Q. Okay. Mr. Swanson, I ask you to compare the int, int space dir subroutine on Plaintiff's 18 with anything on your disk that was roughly similar, and that's Plaintiff's 35/21? A. Yes. And the similar routine on Plaintiff 25 is -- THE COURT: Plaintiff 25? THE WITNESS: Excuse me. THE COURT: Now you mixed it up. 21 and 35 have become 25. All right. THE WITNESS: 35, the disk. The routine is display, underscore, file, underscore, listing, that appears at line 1562. Now, on Plaintiff 21 this routine starts, the header starts at the bottom of page 25 BY MR. OSTROWSKI: Q. And have you had a chance to compare source code similarities? A. Yes, I have. Q. And what is the percentage of similarity between the two source codes? THE COURT: Two what code? BY MR. OSTROWSKI: Q. Between the programs, the two programs source codes. THE COURT: The two he's mentioned. MR. OSTROWSKI: Yes. THE WITNESS: I'd say 25%. BY MR. OSTROWSKI: Q. And are there any similarities in -- I'm sorry. I don't want to interrupt you. Go ahead. A. Okay. The two routines, there's a number of them up in there. The two routines are of different size. Q. Okay. A. So the 25% of that -- okay, of the smaller routine, about 25% of that smaller routine matches the larger routine. Q. Okay. And by the small one you mean Plaintiff's 18? A. DIR, yes. Q. D-I-R? A. Yes, sir. Q. Okay. So the portion carried over would be somewhat less than 25% in, as a percentage of what's in 35? A. That's correct. Q. Display file listing. Okay. With regard to the part that is not literally the same in the source code, are there similar functions? A. Yes. Q. And specific -- what are they specifically? A. Well -- Q. You've been estimating percentage of similar functions, which I didn't ask you to do because I wasn't sure how to do it, but since you've done it, do you have a number -- A. It is, you're right, it's not a, not a real good measure, but -- Q. Okay. Well, just tell me what specific functions you find that are similar? THE COURT: Why if it's not a very good measure should I be concerned with it? THE WITNESS: I thought that's what I was asked. THE COURT: I know you were, but I'm asking Mr. Ostrowski. MR. OSTROWSKI: I'm just deferring to the expert witness, Your Honor. THE COURT: He says it's not a very good measure. If it's not a very good measure, why should I be concerned with it? MR. OSTROWSKI: At this point, I can't think of a good reason. I was only asking him the percentages with respect to the source code, which is a numerical calculation. THE COURT: Tempus fudges. MR. OSTROWSKI: That one I did not read. Okay. THE WITNESS: The question, where are we at? BY MR. OSTROWSKI: Q. Yeah. What specific functions were similar between the two programs? A. Okay. Functions, functionality, they do not, okay, they don't call similar supporting functions, but their functionality. All right. They open a screen, they do some error checking to make sure the file they want -- THE COURT: And this is all your thinking, leading to a percentage, because that's what you were asked. THE WITNESS: Yes. THE COURT: All right. So you're just thinking. MR. OSTROWSKI: No, actually, Your Honor, I asked him about -- THE COURT: Well, you wanted percentages. MR. OSTROWSKI: Well, he said that he's not comfortable doing that with functions, so I asked him just to simply list -- THE COURT: Oh, I see. MR. OSTROWSKI: -- and describe. THE WITNESS: I could give you a rough measure but it's not a real, it doesn't mean a lot, you know, it doesn't really apply, like 30%, 40%, you know -- BY MR. OSTROWSKI: Q. Well, I take it that you could literally add up specific functions? A. You could go line by line. Q. But they're not all of the same importance? A. Yeah. THE COURT: Yes, they're not. THE WITNESS: That's correct, they're not. BY MR. OSTROWSKI: Q. So that the percentage wouldn't really mean much? A. That's correct. Q. Okay. But, so just list the specific similarities that you find and describe them briefly, if you would? A. Okay. Each of them checks to make sure that the file they need exists. They have -- they build the file, the path that goes to that file. They display a screen and in this case the, the screen that contains the listing of files in their descriptions. And then they allow -- they display commands that are available, and then they allow the user to choose from a valid command and will process that command. That's about it. Q. Okay. Now, there are things added to 35 that are not in any way, shape or form in 18's int space dir, correct? It's longer? A. It's longer. There -- Q. Is it longer because of programming language or documentation? A. Okay. They're both, there's documentation in 21 and 35, and the way he, he does a little bit more in this, in this routine itself, instead of breaking it, like in 18 it's broken down -- Q. Well, there's -- I'm sorry. Go ahead. A. In 18 some of the same functions he will do with several lines here, you know, he's just taking care of it here, they're pushed down and they get a sub, supporting routine to handle those functions. Q. Okay. But what I'm asking you is, what new functions are added in 35 that are not in 18? A. Okay. Q. The -- perhaps even commands or -- a command is one line of code, right? A. Yes. Q. Well, I guess I'm just asking you about specific functions or subroutines, sub subroutines? A. Yeah. Okay. The commands that are available from dir in Plaintiff's 18 are, okay, there's, you can get to the user directory. You can get, you can do -- Q. That's new? A. No, this is not new. Okay. You want just, just the new ones, right? Q. Yeah, because you said it was longer and I assume that's because there's new stuff, and that's what I'm asking. A. In part, yes, in part, yes. Okay. I want to check these. Let me just look at the command lines. Okay. The new stuff in 35, we have help. Well, we also list on the command bar that you can page up and page down. DOS shell is there. Q. Is that new? A. No. I'm sorry. I'm thinking out loud again here. Okay. You've got page up, page down. We got help. That's, that's not in the command bar here, unless he's -- I didn't see it hidden in here. There's not a lot that's really new. It's just done a different way. Q. Okay. Help is new and page up and down is new? A. Yes. Q. Now, I'm going to ask you to disregard those two elements, and ask you, with respect to the remainder of 35/21 display file listing, is it substantially similar to the int dir in Plaintiff's 18? A. No. He does things -- no. He does things different ways. Q. In what different ways? A. Okay. We -- in 35 he uses a, his own -- THE COURT: He who? He you? THE WITNESS: No. That -- yeah, that would be me. I'm using a, my own, or historically, you know, Brian's, now my own routine for a keyboard input in dir I think he's going to get char with -- get char here, which is a C routine. When we, when we go down to execute in the selected user's valid commands, I'm breaking it out in the switch statement, and he is, he's using if statements, and in each case here, on one of my, on a specific command, I go in, I go into a little more detail in this specific routine. In other words, some of the necessary functionality is brought up and included in this routine. And now I'm speaking of 35 here, okay, versus 18 that takes and assigns that to a support routine. The two specific ones I'm looking at here are DOS command and help. BY MR. OSTROWSKI: Q. Okay. I don't have any more questions about these comparisons, but what I'd like you to do now is, I'm handing you Plaintiff's Exhibit 7. MR. OSTROWSKI: Your Honor, I'm going to ask him to -- THE COURT: Plaintiff's 7? MR. OSTROWSKI: Yes, Your Honor. It's PDSI-004-1 CD ROM release of Night Owl. Pretty much this is going to be all visual, Your Honor, so if you, if you would like to come up and oversee, be my guest. Or we can move the monitor around. THE COURT: No, no. I'll come down. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Okay. You might -- can you identify the Exhibit I just handed you? A. This is -- Q. Just by number. A. Okay. Night Owl's PDSI-004-1. Q. What's the Plaintiff's -- what's the number of the Exhibit? A. I'm sorry. Plaintiff's Exhibit 7. Q. Okay. And based -- in general, what are you holding? A. This is the Night Owl's CD ROM file retrieval, one of, you know, one of their periodic issues. Q. Okay. I'd ask you to just put that in the computer, and you know how to do these things. A. Is there a ROM fired up on this? Q. Just basically, what kind of computer do you see that you're working with here? Is this -- I don't know if it really matters, but you're working -- A. We had a 386 SX. Q. And I take it there's a hard drive? A. Yes. Q. And there's monitor and keyboard. It's not too different from most computers? A. That's correct. Q. It's a pretty decent computer, on average, is it? Slow down. Let me get over there with my notes. I take it this is all preliminary stuff, but you're fired -- A. Okay. I did a D, I got DOS and it's putting me back in the J and L Services shell. Q. Okay. You're in -- you're not in the CD ROM at this point. Perhaps we could go off the record. (Discussion off the record.) BY MR. OSTROWSKI: Q. On the computer screen, you've put the CD ROM in the hard drive? A. Yes. Q. And are you in the hard drive, as far as DOS? A. I've gone to CD ROM and I'm ready to fire up Exhibit 7, executable file Night. Q. Okay. And you know, because you've worked on it, that the execute command is Night? A. Yes. Q. And you, what -- A. The date on the XE? Q. Well, do you see the -- I guess you did a directory of DOS to see what's on the CD ROM? A. Yes. Q. Okay. And does that tell you the date -- well, does that tell you the date -- is it apparent that somebody at some point in producing this CD ROM put a date on there indicating, I guess the date that the program was -- well, what does the date on the directory indicate to you? A. The date on the directory of Night is 9/30/91. Q. Now, that's simply something somebody put in at some point? A. When you make a new XE it gives you your current date, so this, this version was finalized on 9/30/91. Q. If the person who put that in was telling the truth. A. Well, it's put in there, it's put in there automatically. If you want to be dishonest, you can go in and change it. Q. Okay. You can put February 17th, 1992? A. If you want to. Q. Any date you could? A. You can fudge it, sure. Q. But in the normal course of events, people assume that those are true. Okay. And what is the date on there for Night? A. 9/30/91. Q. Okay. And you've typed in the command execute the Night program which is what? A. Night, N-I-G-H-T. Q. Okay. And you know that that's how you fire up the program. So I'd ask you to simply execute the program, which you do by pressing enter? A. Yes. Q. Okay. THE COURT: I see now that's followed by EXE, is that always there for execute? THE WITNESS: Yes. That, execute is executable. It's something the computer can understand. THE COURT: But when it says EXE that's what it means. THE WITNESS: Yes. Okay. The environment isn't set. BY MR. OSTROWSKI: Q. Do we have a glitch? A. Our environment isn't set here. Q. Do we have to exit out of the -- A. Can we install this? Okay. We're going to install automatically. Let's just run this, I don't want to install this. Q. Do we want to go off the record for a moment until you get back on? A. Yeah. (Discussion off the record.) BY MR. OSTROWSKI: Q. Okay. I take it that you, you typed in Night and execute, and then there was a glitch that had nothing to do with these proceedings. We went off the record and did you, you fixed the glitch so that you could execute the Night command? A. Yes. We installed it and now we're at the first screen of the Night. Q. Okay. And so you're on the first screen of Night. Okay. And what do you see? A. Okay. We got your main menu with the menu numbers. We have a, okay, version 3. We got free space and we got a listing of some of the commands that are available to us. Q. Okay. And you know, basically, what is the file retrieval program that produces this screen, and that's produced all these commands that we've talked about. What does it expect the user to do at about this point? A. Select a menu option to narrow his choices as to what type of thing he's going to look for. Q. Okay. I see -- well, let's see, I see home and personal on there, number 26? A. Okay. Q. Now, does that mean, does that mean that there's some programs about home and personal in that area? A. Yes. Q. So in order to get access to that, what would you do? A. I type in 26, enter, and it -- okay, now this is the listing of home and personal, okay, we see at the top here. This is the category in general we're looking at. And these are all listings of name of the file, its size and bytes, its date, and a quick description. In this case it's a single line, looks like they're all single lines. Q. Okay. Now, can you go back up to the top? A. Yes. Q. Could you just go to -- what is -- where is that first program up at the top? A. Okay. Axis 3, mature version of best PD Home Accounting Program. Okay. Let's say you want to look at that. Just go to the top, just -- Q. I don't want to be rude, but I have to sort of ask you the questions. A. No, no, I understand. The tape doesn't see. Q. You know much more about this than I do. Can I just ask, okay, that's a specific program in the category of, my memory is going again, home and personal programs? A. Yes, sir. Q. It's on the top there, I didn't see it? A. Yes, sir. Q. Okay. Now, let's say I wanted to use that. What would I do at this point? A. Okay. There's no command -- okay, carriage return. Well, to abbreviate it, you press enter. Q. Okay. A. Okay. And it refers to the tag file. Notice this, the account sys 3 is in a different color, or the highlighted file rather. Okay. It says highlighted file is, you know, here's your offset. Okay. We selected that specific zip file. Q. Okay. A. It gives us a list of further actions we can take with this zip file. Q. Okay. Let me just ask you to -- can you cancel out and go back to that? A. Yes. Q. Okay. A. Okay. We're back to the category listing screen. Q. Okay. What are your options at this screen? We've already gone through, you can pick a program and we'll get to that later what happens, but you can pick a specific program. What else can you do? A. Okay. You can, this is a, this is a large list and it takes up more than one screen. You can navigate the list by use of the up, down, page down, page up, home and end keys. Q. Can you go to the end? A. Yes. Q. See what happens? A. Yes. Q. Can you tell how many, how long that was, or is there a page -- A. Okay. Line 181, here you go. That's -- Q. So there's about 181 programs or -- A. A little less than 181. They're coming in, some of them have a couple lines description. Q. Okay. What else can you do with it, other than scroll up and down and -- A. You can quit out of this thing, you can tag a file, or you can tag several files to mark them for further actions. You can get help on this screen. Oh, geez, I'm confused, I need help. F-1 and that will give you a little, a little bit of information about what's going on with this screen. Q. Okay. Can you -- how do you unzip a file? Can you unzip a file at this point? A. Yes. Q. And what does unzip mean again? A. Zip is a commercial method of compressing files so they don't take up as much space. Q. Right. A. We want to stuff as much as we can on this. Unzipping it means I'm decompressing it so it can be used. You can't use it in its compressed state. Q. Can you go to the first program, the accounting program? A. Yes. Q. And unzip that. How do you unzip that? A. Okay. I press enter to select it. It shows us our highlighted files, and now it shows us a list of options. Extract is the one we want. Q. That means unzip? A. Yes. Q. More or less? A. Yes. Q. Okay. Why don't you do that. A. Okay X - - we get a choice here of tagged or highlighted because I tagged a bunch of files. We want H for highlighted. Q. What's the difference between tagged and highlighted? A. The highlighted file, there's only going to be one highlighted file. That was your little black bar that was moving up and down. Let me, okay, let me back out again of this and I'll show you. Q. Okay. A. And I'm going to say no, I'm going to keep -- Q. I missed that. I'm sorry. A. No problem. Okay. Down -- okay, those. These are tagged. Q. What does that mean, tagged? A. If, suppose you want to examine a group of -- there are a couple files in here that hold your interest, instead of just one. Okay. This is the highlight bar, this yellow on black. That's the highlighted file. We get one highlight bar, one highlighted file. If you want to tag, okay, I press space to tag. Q. So highlighted means you pick one and -- A. Yeah. Highlighted -- Q. Tag means more than one? A. Tag means you're one of a group of, possibly a group of files that you've selected for further action. Q. Why don't you go back to the first program and unzip that, see how that works? A. I'm going to untag everything here to lose that confusion. Okay. So we're back at the top, account sys 3, we select enter to display our file manipulation window. Okay. It also makes available to us further extract, commands we're going to extract, X. Okay. Now it's calling the PK.UNZIP utility. Q. You're talking a little too fast, for me, anyway. A. I'm sorry. Okay. We've selected the extract command. Q. You've extracted? A. And it's in the process of doing that. Q. The machine's working now? A. Yes. Now, I, I was just in there and I just unzipped them before. Q. Okay. A. And I didn't delete them, so it comes out and it says, well, it's already there, do you want to overwrite it. Q. Okay. A. They're the same. We're going to save us some time. I'm going to say no on all of these. Q. See, you've unzipped a file? A. Yes. Q. It's ready to use. What do you do to actually run it? A. Okay. Q. Or is there another step in between? A. We're getting to that. I don't know, okay, I don't know if we can run it from here. Q. Have you ever used this program before? A. This version, no. Q. Okay. A. I haven't seen this version. Q. You're just going on your general experience? A. Yes. Q. Very good. A. Okay. Now, I don't see a execute command along the bottom here, so I'm going to go to help. Maybe it will tell me if there's one. F-1, help. Okay. Read, and these apparently are commands. R, read a document. D, DOS shell. Okay. U, run your user's preferred utility. So we can run it from here. Q. I see execute 2 on the screen? A. That -- Q. That's what we've spoken about? A. Oh, okay. Yeah. This is, okay, this is not a routine. This is a -- Q. Command? A. -- one of the contexts. This is a help context, okay. We're -- this just heads a listing. What -- okay, it's context sensitive help, okay. So I'm going down and I say, well, the program has to know where I am. It's queuing off of this little line that's in, you know, I can show you in the listing here. Q. Right. A. See, we've got, okay, right there, there's execute 1. See how the listings are similar there? THE COURT: What you pointed to on the screen was execute 2. THE WITNESS: Yeah, okay. Here's execute 2, and see, there's the same stuff there, read document. We're just pulling a portion of this list up to look at, is all. BY MR. OSTROWSKI: Q. Do you know how to run a file at this point from the help? A. How to, okay, U, we went to help, we said U, so I'm going to get out of help, execute, I'm going to say U, as it suggested. Okay. Okay. And this is our list of files. Let's, I'm looking for a, for a way to execute. I'm going to back up again, because I'm a little confused here. Okay. That was, I was on the wrong file. Okay. Let's go right to the top. This is a con file. We ought to be able to execute this. So we're going to say U, okay. We'll go down, okay, it's not marked on a -- I don't see a -- Q. If you pressed enter, would that execute? A. Let's give it a try. Oh, no, that's giving us a read, and that's an EXE file, they don't read well. Okay. Q. Can you hit escape from this? A. Escape ought to back us out to the last string, yeah. Q. Okay. Now, if you hit enter, what will happen? Could you hit enter? A. Let's hit enter for a minute. Okay. Yeah. Okay. We get a, okay, then it asks us, do you want to execute accounts 1, 2, 3, which is, was contained in this account sys 3. Q. Okay. A. I'm going to say yes. Q. Hold on. Let me ask you about enter. Enter generally means -- enter is commonly used to execute all kinds of files, isn't it? A. It's your, in the context of a program, no. It's, you use enter to terminate a command line so it's going to be the last thing you type before your command is executed. Q. Well, in -- THE COURT: So if you've mistakenly hit the wrong key nothing will happen unless and until you hit enter. THE WITNESS: Right, yes. BY MR. OSTROWSKI: Q. In DOS -- now, DOS is a pretty important language, right? A. It's a operating system, yes. It's widespread, yeah. Q. Okay. Now, enter is the execute command in DOS, isn't it? A. No. That is the, that's the -- that signals to the computer that you have completed a command line, and then it takes the whole line you've typed in prior to that, and says, I'm going to do this. Q. Right. A. That whole section prior, that's really your command. Enter just says -- Q. No. I'm not asking about command. I'm asking about execute. To execute a command in DOS, you hit enter? A. Yes. Q. Okay. Now, you're at the point where you can now execute, and it says yes, no or cancel? A. Yes. Q. Okay. Why don't we press yes, why don't we press yes and see what happens? A. Okay. Want a yes. Q. How did you do yes, just Y? A. Just said Y. Q. And where are we now? A. Okay. Looks like convert accounts, looks like we're starting to run it. Q. The computer is working? A. Yeah. Okay. We're into this and it wants to convert us to a Lotus 1-2-3 format. THE COURT: Who's that Kenneth W. Ruggles? THE WITNESS: I imagine he is the contributor -- he must be the guy who contributed this program. THE COURT: Contributed to who or what? THE WITNESS: He would have -- okay. Now, I'm unsure. I'm unsure for certain all the ways they delivered this, but the general way it comes in is shareware author is going to upload to a bulletin board, he's going to, he would send this whole package, this is the original accounts sys 3 that we saw way back in the beginning there. BY MR. OSTROWSKI: Q. I -- I'm sorry. Continue. I interrupted. A. Okay. And he's going to package that zip file, put everything he needs in that zip file, upload the zip file to the bulletin board, send along a description, this is what it is. Q. Now, in a typical -- THE COURT: So he's somebody who generated this in the first instance and he's made it available. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. In the typical CD ROM there would be possibly dozens of copyright notices by individual authors? A. Yes. Q. Which are not the manufacturer or the publisher? A. That's correct. Q. Okay. And perhaps there might even be hundreds? A. Thousands. Q. Thousands. Okay. Okay. Are we ready to operate? Is the computer still working? A. This is not a good one. This wants to do stuff with Lotus. Q. This is a bad example to use? A. Let's pull another example up here. Q. Yeah. Why don't you do that, maybe two or three or whatever. A. If it will let me out. Q. How do you escape, by the way? A. Escape usually, but this one is not cooperating with me. Let's try some -- okay. Go a little harder. Okay. Control break gets us back. Let's get out to something else. Let's pull something else. We're going to delete those. Q. Why don't you describe what you're doing now while you're doing it? A. I'm exiting back through the -- okay. I'm backtracking all the way back to the list that we originally selected accounts sys 3 from. So I'm going to select a whole new -- Q. Now, was it pretty -- it was pretty easy to get out of that, given that you've never used this program before? A. Yeah. I've used similar. You know, it's -- Q. Took a few seconds? A. Yes. Q. Okay. A. Well, if it fools me, it's going to be -- oh, good, Biorhythm Checker from California. Q. Okay. That's the program? A. Okay. Q. We're going to -- what do we do first, we unzip it, right? A. Okay. We're going to go through the same process we went through accounts.sys. We're going to, okay, we've highlighted the file, Biorhythm.zip. We're going to enter. Okay. And we throw up our, the file manipulation window, which names the highlit file and gives us our available commands. Again, we are going to extract, X, okay, and now it's calling PK.UNZIP and it's decompressing that file. Q. Okay. A. Okay. There's only one in there. Great. So -- Q. I see nothing on the screen. Is it working? A. This is Biocom is the only file contained in that zip file. Q. But what -- why is there nothing on the screen, other than -- A. There's a -- THE COURT: Well, there is something, under the bar. MR. OSTROWSKI: I'm sorry, Your Honor. THE WITNESS: It's just one line. You know, just, there's just one file there. You know, it's a single line. BY MR. OSTROWSKI: Q. Oh, I'm sorry. We have not executed -- you've unzipped it, and now, what do we need to do to execute it? A. Okay. We're going to enter. Again, it asks us, execute Biocom, yes, no, cancel. We'll say yes, Y. Okay. And it's firing up. Okay. We got a copyright screen, a, you know, please send me money for shareware. Q. Can -- where's the copyright notice there? A. Okay. Okay. I don't see it -- okay. Here's our -- okay. There's no copyright notice. There's the address, and send money here if you want more, address. Q. There is information about where to contact the author of this program? A. Okay. Q. An address? A. These are the people that's selling it. You said there's a trademark. Q. At the top. A. Team cycle. Q. At the top. A. Oh, okay. Life Cycles, trademark. Q. Okay. A. Okay. Q. And is there information about where to contact this particular author? A. I don't know if this is the author. These are the people that are selling it. I would assume you could get to him through them. You know, that's where you'd start looking. Q. Now, I take it at this point we're in the program? A. Yes. Q. And you can do various things with the program? A. Yes. Q. If you're interested in whatever this program is about? A. Yes. Q. Okay. Why don't we exit, how do you exit out of the program? Let's say we're done. A. Okay. This, this may vary with individual programs, but I'm going to press any key first. Okay. X. Now it gives me a menu and X is the command to exit the Biocom, so I say X, press any other key to return to Night. Okay. Now, this is a Night -- Q. Okay. A. We're back in Night stuff. I press any key. I'm back to the screen that lists all of the zip, the contained files in that zip file. Q. I only see one file listed. How do you get back to the menu that we were looking at? A. Escape -- Q. Or the sub menu? A. Do you want to come back on this one, or do you want to -- Q. No, no, no. I'm done with that. A. Okay. We'll delete our files. MR. KITCHEN: You mean we're not going to all check our biorhythms today? THE COURT: Costs money. BY MR. OSTROWSKI: Q. Okay. Now, can you -- we're back -- A. We're back to the category listing screen. Q. We're back to the category of home and personal? A. Yes, sir. Q. Which was something like number 29? A. 26, I think, yeah. Q. How do we get, let's get back to the main menu. How do we do that? A. Escape. Okay. Pause. Okay. There's our main menu. Q. Now we're back to the main menu. So we went from the main menu to a sub menu, number 26? A. Yes. Q. We looked at those? A. Yes. Q. We were able to pick one? A. Yes. Q. And execute the program? A. Yes. Q. Of course, we didn't want to do anything with the program, other than just to see what it looked like, and so on. Then we exited out. That was all done pretty fast and quickly, wasn't it? A. That wasn't too painful. That was pretty good. Q. Assuming that on the one hand you're knowledgeable about computers? A. Yes. Q. But you've never run this particular program before? A. Yes. Q. And you only had -- A. Well, it was reasonable, sure. Q. You only had one or two glitches. A. It was fine. Q. In fact, some of the glitches were -- A. You know, this is about average, yeah. Q. I'm sorry. Some of the glitches were caused by the fact that you were, you were -- you expect to do things a certain way, based on your advanced knowledge of computer, and sometimes the program wasn't quite doing it the way you're used to doing it. A. Yeah. It wasn't prompting me to say, well, there's an, you know, do an enter. It wasn't on the screen, so -- Q. Now, do you consider this to be the type of program that could have been written by a novice? A. With guidance, sure. To come up with it on your own, I doubt it. I would say no. You know, like writing and designing are, okay, yeah. Write it, if you've got guidance, great, yeah, you can, you can write it if you've got guidance, sure. Q. Okay. MR. OSTROWSKI: May I just have a moment? I need one more second before we go on. (Discussion off the record.) MR. OSTROWSKI: On the record. Hopefully -- THE WITNESS: Wait a minute. We got into games. Did we switch to games? Yeah, we must have. BY MR. OSTROWSKI: Q. Well, it doesn't matter where we are in the program. We went through some functions before, comparing various versions? A. Yes. Q. As far as the dir, int dir function, did you come across that, or was that, were those, were the source codes of int dir used in anything you just did, to your knowledge? A. Yeah. Dir pulled up -- no, dir pulls up this, yes, so we're using dir right now. Q. Okay. A. Or its supporting routine. Q. And you used int help, didn't you, at some point? A. Yes, pulled up help. Q. And int main I take it has a lot of different functions? A. Int main is, everything supports int main. If you don't do main, you don't run the program. Q. Okay. And execute, int execute, did you use that? A. Okay. Execute 2 I think was for basic stuff. So I don't know. I think I did but I don't know. Q. Let me ask you this. It will be an easier thing to do. Why don't you go back to ground zero and get the opening screen? A. Back out of this? Q. Yeah. Go back to the opening screen of once you've executed Night. A. Okay. Q. To pick 26, like we did. Why don't we do that. Pick 26. A. I typed in 26, enter. Q. What part of the source codes or subroutines are used when you do that? Just, if you know. A. Okay. We're using, we're using dir right now, just to get where we are right now. Right now I think we're in dir. Q. Okay. That particular subroutine? A. Yes. Q. Okay. And to get, to get to that program we had to unzip it, I think? A. No. This is right off the main menu. Zip -- I'm sorry. Zipping follows. Q. Okay. If we want to use that -- well, we didn't want to use that home accounting. Which one did we use, the biorhythms, Denis' choice? A. Yes. Q. How do we -- we have to unzip that if we want to use it, right? A. Yes. Q. And how do we -- what command is that? A. Okay. That is the enter command, starts us down that pathway, and from there the option, extract, becomes available. Q. When you hit that enter -- THE COURT: Let me ask you, is there a purpose for this repetitiveness, Mr. Ostrowski? MR. OSTROWSKI: I'm just trying to identify the source codes, Your Honor, that he's, that are utilized in each step. THE COURT: Well, we went through it once. MR. OSTROWSKI: But I did not ask him the, about the source codes, which -- THE COURT: Apology accepted. MR. OSTROWSKI: I'm sorry, Your Honor. BY MR. OSTROWSKI: Q. Which source codes or subroutines are you utilizing at that point? A. Okay. Oh, yeah. This, I think, is -- yeah, this is execute. Okay. This screen right here, execute froze this screen up, so yeah, so we're in execute right now and it's looping, waiting for me to say something. Q. Okay. And then -- THE COURT: You're pointing really to an interior screen that's shown on the monitor. THE WITNESS: Yes. BY MR. OSTROWSKI: Q. To unzip it, what do you do at this point? A. X, extract. Q. Okay. A. Okay. There's X. Q. And when you hit extract, what subroutine are you using? A. I don't know. I'm maybe making a call to, where was that, where was execute? Well, that was towards the back. Eventually it's going to go to a DOS call. Q. I can show you where execute was. A. No, I'm looking on 18. Oh, no. Wait. We're not in execute, we're not in dir. I was referring to those routines that are a part of Plaintiff 18. We are in Plaintiff's 7, and I don't think I have code for that at all. I could take the nearest appropriate one out of this one. MR. KITCHEN: Yes. 004-1, I believe is the, is the, corresponds to Plaintiff's 18, doesn't it? MR. OSTROWSKI: Well, that will be a judgment for the Judge. MR. KITCHEN: Well -- THE WITNESS: Okay. This is Plaintiff, this is 18, like 21 and 35 are similar, this is 18? BY MR. OSTROWSKI: Q. All I'm asking you is, I'm asking you without referring, do you know, would you know from your review of various documents what source codes correspond to that command? A. No. Q. Okay. And -- A. Yeah. I made a mistake earlier. I was thinking it was 18 and -- Q. Okay. Were you -- we're unzipping -- MR. KITCHEN: Now, excuse me. Let me raise an objection of sorts here. I'm not trying to testify when I add this, but good grief, I mean, this is complex enough. I thought we had established that the, that the thing that we just spent the last half hour looking at corresponded to something that we've already been talking about. And if it doesn't correspond to anything, why are we talking about it? I -- MR. OSTROWSKI: But I mean, that's up to the testimony of other witnesses and -- MR. KITCHEN: Well, please, can't we stipulate as to which, whether Plaintiff's 18 does or doesn't match the disk? MR. OSTROWSKI: I believe this is Larry James' C version, but I'm not a witness. That's why I have it up there. MR. KITCHEN: Well, I know, but even this, this particular witness can't, can't really testify to that. Didn't we already have some input as to what this is? I'm just trying to make this thing a little sensible, not, not leave, I don't want to leave the Court with more puzzles than there need to be, you know. MR. OSTROWSKI: Well, again, I don't think this witness can lay the foundation as to which program is which. That's why I'm not asking him. MR. KITCHEN: Well -- MR. OSTROWSKI: That's why I'm asking him what he knows. BY MR. OSTROWSKI: Q. The next command -- and is it unzipping, or is it done? A. Okay. We're part way through. It's -- Q. It's working? A. Yeah. Let me -- okay. We're going to unzip it. Okay. And we're back to the same place, in the, what we call the work area, and we are now viewing a listing of the files that were contained in the biorhythm zip, or in this case, files. Q. Okay. So we can, we're not, now in a position to execute this program, pretty much, Biocom? A. Yes. Q. Okay. And what do we do, hit enter? A. Okay. We hit enter. That calls up a little window that confirms your choice, execute Biocom. Yes, no, cancel. Q. And what source codes or subroutines are we using, if you know? A. I don't know. I'm not sure, you know. Q. Okay. And then, why don't we go to the exit screen. A. Okay. When you say exit, you mean you're ready to get out of the program? Q. Yeah. A. Okay. We're backing out. Q. We're in the sub menu? A. Okay. We're in a sub menu, just passed through. Now we're to the main menu. Q. Getting out. And when you're done using the, the whole CD ROM and you want to go to bed, what do you do? A. Okay. Q, quit, is in the command line, so we press Q, and return, type Y, okay, confirm our choice. Type Y to confirm, so I press Y. Copyright screen, drop to DOS. Q. Okay. And what does the copyright screen say? A. Copyrighted 1991 by Night Owl CD ROM Publisher, all rights reserved. Normal exit. Q. Okay. MR. OSTROWSKI: Your Honor, my client wants a conference with me. Could we -- THE COURT: Well, I was going to say, speedy exit. We'll take a recess. (Recess taken.) MR. OSTROWSKI: Your Honor, I'm going to ask the witness about two more CD ROM's. THE COURT: Pardon me? MR. OSTROWSKI: I'm going to ask the witness to demonstrate two more CD ROM's and then I should be through with this witness. BY MR. OSTROWSKI: Q. I'm going to show you Plaintiff's Exhibit 26, and can you identify this? A. This is Plaintiff's Exhibit 26. This is the Night Owl's NOPV-7. Q. NOPV-7? A. Yes. Q. Okay. Do you have any knowledge yourself about what file retrieval program would be on there? A. Yeah. I understand this is, this is the latest, so this is code that I've written. Q. Okay. Is it possible that that's -- well, do you have personal knowledge of which program is on there? A. Yeah. This is, this is 20, Plaintiff's Exhibit 21. Q. We said NOPV-7, didn't we? A. Yes. MR. OSTROWSKI: Okay. Your Honor, it's my understanding we had some discussion, I don't know if we're going to enter into a formal stipulation, but it's my understanding that this particular CD -- THE COURT: The way to probe that is to talk off the record with Mr. Kitchen and see if you can. MR. OSTROWSKI: So I would simply ask the witness -- THE COURT: It takes two to tango, so we'll go ahead. BY MR. OSTROWSKI: Q. You put the, it's a CD ROM, isn't it, Plaintiff's 26? A. Yes. Q. And you put it in the hard drive, and you're at DOS, ready to do some work? A. Yes. Q. And you type in Night to execute? A. Yes. Q. And then you execute? A. Yes. Q. And we're waiting for the program to work? A. Okay. We need to install. Q. Is this a technical -- what do we see here, cannot open Night file, change file? A. Okay. It hasn't been installed yet. THE COURT: That's not a change file, it's a cfg file. THE WITNESS: It's a config. MR. OSTROWSKI: Oh, I'm sorry. My mistake. I thought that meant change. I guess I can't even read because it says F. THE WITNESS: Well, it's hard to read from over -- BY MR. OSTROWSKI: Q. Is this a glitch that has something to do with this case? A. No. This is not a glitch. Q. Okay. A. This is -- you need to, you know, do you want to install this. This is normal. Okay. I'm going to install it. Hit color. Okay. We have a color screen. And we're going to put our default. Okay. We use it in C Night. It's a default answer. CD ROM drive is Z. Okay. I don't know if we have a pic -- a gif -- MR. OSTROWSKI: We should probably go off the record till we get ready. (Off the record.) MR. OSTROWSKI: On the record. We had a technical glitch but you fixed that and you hit enter and it brought up the main menu. THE WITNESS: This is, okay, this is an installation that, it wasn't an error. It was a, yeah, a roundabout, slowed us down a little bit, but we're now at the main screen. BY MR. OSTROWSKI: Q. Okay. Could you just in general terms describe the main screen? A. Okay. We've got a list of categories. We don't have the numbers on this one. A list of categories of types of programs that we can select from. We've got our, the Night Owl CD ROM file access to all the program name, version number 1. At the bottom we have a list of some available commands. Q. Okay. Any copyright notice on the opening screen? A. No. Q. Okay. Now, is there any sub-category -- well, is there any category which sounds like home and personal? A. Home computing. Q. I see personal systems, aps. A. Personal system, aps. Okay. Q. Why don't we just try that, and I guess what I want to know is, how do you bring that category up to look at? A. Okay. I move the highlight bar over the desired function and then I press enter. Q. Is that what you did on -- A. No, that's different. We selected by number on the other one. Q. Okay. A. Okay. And this brings us into a list of file descriptions, or file names and file descriptions. Q. Under that category, personal systems, what does apps stand for? A. Applications. Q. Okay. Now, in using the space bar and then enter, compared to picking a number, and then I take it we entered, we used enter on the previous program. That was Plaintiff's 7. A. Yes. Q. Is there any particular time -- was there a difference in the amount of time it took between the two, to do it one way or the other? A. Not noticeable to the user, no. Q. Okay. Now, I take it we're at a menu of programs that have to do with personal systems? A. Yes. Q. And perhaps you could scroll down and find one that we wouldn't have a glitch on if we pulled it up and wouldn't be very complicated. A. Okay. 4 last 2 zip. Q. Okay. Well, we could -- would there be no glitches on that if we tried to -- A. Well, let's try it and find out. Q. We'll do that. Okay. Let's work with that. Now we have it on the screen. I see -- A. It's highlighted. I highlighted that file. Q. Is that, is that pretty much what we did on the last program, Plaintiff's 7, we used a highlight bar? A. Yeah. We went with highlighted. Q. Okay. And what do we do, do we have to unzip a program? A. Yes. Q. I'm beginning to understand that. A. Yes. Q. How do we -- and that's the first thing. How do we unzip? A. Okay. We select this file for action with enter. Okay. It pops us up to -- Q. Try to slow down a little bit, at least for me, so I can follow. A. I'm sorry. Q. That's okay. A. Okay. We, let's back it up then. We're in the category listing of files and their descriptions. We've highlighted a specific file and we're specifically, you know, even on the title line, if you come down to a, that has a description line only, that's not going to do it. You have to highlight the name. Okay. So we highlight 4 last 2 dot zip. Q. Can I just ask you, there seems to be a bit more description of specific programs? A. Yeah. There are more description lines. THE COURT: Under that one title? MR. OSTROWSKI: Under each title. THE WITNESS: I would guess under -- I'm sorry. THE COURT: No. I was just going to say, it's a five line description of what is on that last 2 zip, the line that you have highlighted, instead of just for laughs, number 2 collection of programs, which looked like a computer virus is at work designed to elicit laughs and maybe some nervous moments (harmless). That's a whole description of that item, isn't it? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Now, that description, we had some discussion about this, but that's strictly speaking not an executable program, that's simply like a word processing file that somebody wrote information in, isn't it? A. Okay. The 4 last 2.zip is -- Q. Well -- A. Okay. This is, this is not an executable, that's correct. Q. What we, okay, what we seem to have here is just a longer sentence, a very long sentence which describes each item, instead of a very short term or -- A. Yeah. More verbose. Q. Okay. That's not a computer program per se, is it, an executable computer program? It's a -- A. Well, this -- Q. Would you call that documentation, or is that incorrect? A. Well, this is, well, I guess you call this documentation for the, for the user. Q. Now, is this done by the file retrieval system or some other program or -- A. This specific text is contained in a specific directory in a specific file. The navigation of this file and the highlighting is managed by the routine. Q. But this extra information that we see here, generally speaking, and generally speaking not in the Plaintiff's 7 sub menu, is not done by the file retrieval program? A. That's correct. Q. Okay. Now, we've gotten to a particular program just for laughs, and I think we wanted to unzip that? A. Yes. Q. And how did we go about doing that? A. Okay. Now, we've got a -- okay, enter, on the bottom selects it for action. We enter. Okay. It tells us, you know, where we're at. We don't have anything tagged. Okay. And you see it also changes our command bar on the bottom. A new array of commands now become available to work with this specific file. Q. Okay. And at this point, what differences do we perceive as opposed to Plaintiff's 7 at this stage? A. We have more options here. On the, on Plaintiff's 7, there was never any mention of an enter command to fire it up, in the command bar here. We just, we have more options, more things we can do. Our screen looks a little different. Q. I think we -- I'm sorry. As far as the enter, I think we agreed that on DOS that's the execute command? A. Enter is not, okay, enter is not an execute command on DOS. Enter allows, seals off that string. It says, okay, I'm done writing this command. Now, whatever is written before, that's the command you want to execute. Q. Okay. But when you're looking for an execute, when you're looking for a, something on the keyboard to hit, to start the program, and you don't, and it's not on the screen, you generally hit enter, correct? A. Uh-huh. You type something and you press -- THE COURT: Uh-huh, you mean yes? THE WITNESS: Yes. You type something and then you press enter. I'm sorry, Your Honor. BY MR. OSTROWSKI: Q. Okay. Other than the -- okay. You said, where's the enter command, was that on the -- A. That's back up here, for back-up, right there. Q. Okay. Okay. And then, what are the differences, I think you can go to the next screen now. How do we do that? A. We're going to enter, and this is our file manipulation -- okay, now we're in file, display file manipulation window. Q. Okay. A. This is the routine that just threw this up here. Q. What can you do at this point that you couldn't do on the previous, Plaintiff's 7? A. Okay. We can copy, we can copy files. This tag file, or, which we don't have now, or highlit files. We can go right to our unzip area without sending anything there first. I don't think we could, I don't think we could shell to DOS on the other one. I'm not sure. Maybe you could. No, no. I think you could shell on that one. Q. Okay. Copy, you can copy. Could you explain that? A. We can copy files. When people are looking through this, and they find a file that's, after all their examinations, yes, this one's valuable, I'd like it, now they want a copy. That's what this is all about. Q. Okay. You could not copy that way on Plaintiff's 7? A. I don't think so. I didn't see that. I don't -- Q. I take it there would be some way to do it if you worked hard enough with DOS and so on. A. You could drop out, you could drop out to DOS and do it. You just, you know -- Q. Okay. This one does it directly and the other one -- A. Just a little -- Q. -- indirect? A. A little friendlier, yeah. Q. Okay. Continue on, I guess. What do we do to unzip at this point? A. Okay. Extract X, becomes X, we don't need a return here. Q. Now, that extract is the same command that appears on Plaintiff's 7? A. Yes. Q. Okay. A. Yeah. It looks the same on the screen. MR. OSTROWSKI: Your Honor, I had to be -- the plaintiff is audibly talking about how to operate the program, and I would object to that at this point. But -- THE COURT: I don't think he's getting on the record. I don't know to whom he's talking. MR. OSTROWSKI: Well, I'm just saying that he, he may be assisting the witness, and that's an assistance that I'd prefer not. I know he wasn't, it wasn't intentional. He was talking to his attorney, but I think that's over now. BY MR. OSTROWSKI: Q. Okay. We're trying to unzip. What is happening? Do we have a problem? A. It looks like we had, it looks like something with PK.UNZIP didn't go. There are no files, okay, no files in the unzip directory. Q. Now, what, what does that mean? A. We wanted -- okay, it didn't find what it was looking for. Q. Okay. And why -- A. Let's recap. THE COURT: Well, I noticed on your program or instruction bar at the bottom it had something for unzip, but you hit a different one. THE WITNESS: Okay. We've got extract, extract the zip file. THE COURT: But over on the right there's a unzip. THE WITNESS: Go to unzip. Yeah. This is where the zip files end up. Go to -- okay, well, we'll go to unzip there, and -- yeah, there's no files in there. Okay. Let's, we're going to enter, select, extract. We're having problems with PK.ZIP. I'd like to get a look at that line. I'm going to tag one. Let's do it this way. Okay. Now we've tagged a file. MR. OSTROWSKI: Okay. THE COURT: Tag means you put up that other color bar, wider bar. THE WITNESS: We've marked it for future action. In this case we're going to do our action right away. BY MR. OSTROWSKI: Q. Well, hold on. Let me ask you a question here. Can you, you can tag on Plaintiff's 7, is that correct? A. Yes. Q. You showed us that? A. Yes. Q. Okay. Go ahead. A. Okay. Extract, unzip, tag. Okay. We want to do -- doesn't matter, they're both the same one. Let's say tag, with confirms. Make sure we're safe. We say yes. What is the deal? Q. Let me just ask -- THE COURT: That was a semi-expletive by the witness. BY MR. OSTROWSKI: Q. Well, can you explain what the problem is, just for the record, because it's not getting on the record. You're having trouble unzipping? A. Yeah. This is not finding its -- oh, we didn't install. Did I say -- I wonder if I said it right in the installation, because we didn't move files onto the -- let me check my install. Okay. Yeah. We had a little -- Q. Why don't we go off the record, I guess. (Discussion off the record.) MR. OSTROWSKI: Okay. We're back on the record. We had a technical glitch apparently that had nothing to do with the case. BY MR. OSTROWSKI: Q. My question is, how do you -- we're at the point where one would unzip a file as the next step? A. Yes. Q. And how do you do that at this point? A. Extract, X, just punch X. Okay. And it's unzipping. Q. Okay. And how did you do it on Plaintiff's 7? A. I said X -- did we need a -- I don't -- did we need a return on that? I don't think we needed to do a -- Q. Just from your own recollection. If you can't remember -- A. I think I said extract return. Q. Okay. And was it about the same speed, the function, accomplishing that? A. Yes. Q. Okay. And now, where are we now? Did it unzip? A. Yes. We're now viewing a listing of files that were contained in 4 last 2.zip. Q. Okay. So I guess we're in the second level of subcategories or something? A. Yes. Q. And this is a bunch of, this is a bunch of individual funny programs, I take it? A. Yes. Q. And can you locate one that looks particularly funny? A. Well, I think -- Q. How about funny words? THE COURT: I don't see anything about Judge there. THE WITNESS: Okay. Funny DOS.XE. BY MR. OSTROWSKI: Q. Okay. Now, what do we to, we want to run this program now, right? A. Yes. Q. How do we run the program? A. Okay. Our command bar says enter to execute. Okay. Yeah. It confirms. Q. Did you press the, you hit enter to execute? A. I pressed enter. I pressed enter. Q. Okay. A. We came back with a small window, execute funny.DOS and -- Q. Is that pretty much what you did on Plaintiff's 7? A. It had a yes, no, cancel. You know, they're pretty standard so I just left them off. Q. Not much difference there to the user? A. No. They're -- no, you're going to assume that they know enough to know yes or no, and hit Y or N. Q. Eventually they learn what those minor options are and -- A. Oh, yeah. These are, this is common to all kinds of programs. Q. Okay. And I guess to hit, to execute we just hit enter? A. We answer the question, do you want to execute. We're confirming. We say Y, for yes. Q. Y, for yes. And now it's running the program? A. Okay. And this is our funny.DOS thing. Let's, okay, it wants us for a date. Q. You can just hit enter? A. We'll give it a date and see what it does, 9/9/93. Current time, it's 15:43. Okay. And we're supposedly -- okay. So we, we give it regular DOS commands and -- Q. Once we, once you hit, ran the program it seemed like we were back at DOS? A. That's what it's supposed to do. Q. But how do we run the program that's in that, how do we run this funny music program? A. We're running it right now. Q. Oh. Copy wrong. That's funny. Okay. I take it there's a copy wrong IBM Corp. notice there that seems like part of the program is a joke. A. We are now running funny.DOS XE. Q. But let me ask you this, once we get to that current date is Tuesday, 1/1, 1980, we're sort of out of the file retrieval system. THE COURT: Actually it was 1/1, 1980. MR. OSTROWSKI: Well, you know I'm blind, Your Honor, from a few feet away. THE WITNESS: We're sort of out of it. BY MR. OSTROWSKI: Q. We're out of it. You're now running the program that somebody else wrote. A. Yes. Q. It has nothing to do with Night Owl -- A. Our local area is outside the, the ROM. Q. Okay. And why is this taking so long to produce some funny music? A. No. This, this isn't going to produce -- Q. Oh. A. This is just going to make it look like you have a screwed up copy of DOS, and boy, it sure looks that way. Q. Oh, well, that's it? A. Yes. Q. Okay. Let's pretend that -- MR. KITCHEN: Hit it a couple more times. THE WITNESS: Let's see if we get bad command or file name. Yeah. It's giving us garbage stuff that changes our drives. BY MR. OSTROWSKI: Q. Oh, I see. This is just something to amuse computer people? A. Yes. Q. Everything goes wrong? A. This will cause them to panic if they don't know. Q. It will probably say, hard drive formatted, destroy all your data, and so on? A. Yes. Q. Different -- A. Different drive every time. Q. Normally if you hit enter it's the same drive, right? A. Now let's see if we can -- do you want to get out of this? I want to see how you get out of this. Q. This is funny. We may, okay, let's assume we amused ourselves and we want to get out of this thing. A. I'm going to try control break. Okay. Control break. See, now we've got to get out of this shell. I'm going to go to control alt delete. I'm going to reboot. I'm going to warm boot the system. I'm going to warm boot the system. Q. I think it's that the program makes it hard to exit as part of the joke? A. Yes. Q. Okay. Let's see if we could figure out how to exit. A. Maybe I can escape. No, it's not going to help. I'm going to warm boot this thing. I'm going to restart the computer. Q. Can we reset the computer so that we just -- A. Control alt delete. Q. -- kill off everything and start over? A. Okay. Yeah. Q. But, oh, I'm sorry. Then we don't get the exit screen? A. No. Q. Is there any way to skip ahead to the exit screen real fast? A. Sure. Q. It's not even important. Why don't we go to the next disk. THE COURT: Now, before we leave this, one of these screens showed the Night retrieval, Inc. or whatever the name is, and then had your address, Mr. Swanson. What's the import of that? THE WITNESS: My, you mean PCS Center? I'm sorry. THE COURT: It had the Night, Night Owl, Inc., and then had 1620 Falconer-Stillwater Road, Jamestown. THE WITNESS: Well, that's, we made the program. That tells them, you know, these are the guys that made it, this is how you get in contact. THE COURT: But is Night Owl at that address? THE WITNESS: Yes. BY MR. OSTROWSKI: Q. Would it be possible to bring -- is that the opening screen? Would it be possible to bring that up without too much trouble? A. Okay. You want to see the opening screen again? Q. Where the Night Owl, Inc. notice was? A. Sure. I think that's a closing -- well, okay. Let me make sure. Q. Do we have that glitch again? A. Yeah. It wants me to install again. We'll zip through the install here. Okay. We're back at the opening screen. Q. Can you get to that screen? A. Okay. The closing screen, copyright Notice? Q. Whatever had Night Owl and your address. Oh, I take it, this is the closing screen. Could you -- A. This is the closing screen. Q. Could you read that for the record? THE COURT: Night Owl's Publisher, Inc., 1611 Falconer-Stillwater Road, Jamestown, New York 14701, and then six digits under it. THE WITNESS: We also got the copyright '92. BY MR. OSTROWSKI: Q. Okay. Could you take that CD ROM out, and put it back in the container, and I'll hand you another one? A. Certainly. Q. Showing you Plaintiff's Exhibit 36, could you identify that? A. This is Night Owl's disk, NOPV-9. Q. Okay. Could you take that out and put that in the hard drive, please? Or is that, it's not a hard drive, it's a CD ROM drive? A. It's a ROM drive actually. Well, I would certainly love to. Q. I'm not the only one who can't open these. Okay. And we're going to execute it by pressing Night? A. Yes. Q. And enter? A. Night, enter. I hope this doesn't screw up. Okay. We have an option on this. This is a little different. We have an option on this one. We can install it or we can just run it right away, you know, do a quick look, or -- Q. Okay. Does this option have anything to do with the file retrieval? A. Yes. Q. Or does it have to do with -- A. Yeah. We're in the file retrieval right now. Q. Okay. We're in the file retrieval, so the first thing we see is what? A. Installation choices, types of installation you want to do. Q. Okay. How does this differ from the previous two, which showed a menu screen immediately? A. Okay. The other two, they showed, they wanted you to request an -- excuse me. The other two had you install it, and they had one type of installation. We have, well, really, three different variations of installation we can do. Q. And what's the point of these options, as opposed to one? A. A lot, okay, if a developer, a guy, a customer, a dealer for these disks, he gets and he looks at a lot of these disks in a day. He doesn't want to spend time going through an installation procedure. Just get me up quick and let me look around. That's what we're doing here with run Night Owl from the CD ROM, you know, and this one also, choose a new CD ROM. That's, that get you in quick. Q. Oh, I see. And then the other one, the other one, you had to install in on your hard drive? A. Yes. Q. Okay. So why don't we install it the fastest way we can, which is what? A. Okay. Choose, choose a new CD ROM and run from that drive. And that's Z, okay. What is your CD ROM, Z? Don't do this. Okay. We're going to escape. Oh, it's not letting me by. Okay. We're not finding some of our compression files here. I'm going to do an installation which apparently now is quickest. Q. Well, what -- you had a couple of glitches there? A. Yes. Q. Were those important, or they had to do with the program? A. This had to do with the program. Okay. It's not echoing. I, we've probably got black on black here so you can't read it. Q. What does that mean though, because, you know what that means, but -- A. On the display, when you go to type in a character you've got a foreground and a background color. I'm assuming that it's receiving the character, but it's a black foreground and a black background, not very readable. Q. Okay. But is this a glitch of the file retrieval program? A. Yes. Q. Okay. So how do we fix that? A. I'm going to do, I'm going to do an install. I'm going to escape out of this, then loop back for an install. We'll do the full installation. This is not going to be, this is not going to take a long time. Okay. Q. Well, could you just, as fast as, you can do it fast, I know, but could you just describe what you're doing in order to solve the problem? A. I have, okay, I regained the installation choices screen. I'm selecting full installation. I -- okay, I'm answering a series of questions. Do you have a color monitor. Y, yes. Location of default Night directory, C/Night. Okay. Our ROM drive is Z. Don't do this. It wants E on a ROM drive. This is going to give us problems. Yes. Okay. We'll try and accept this. I can change this. Q. Okay. A. I can fix this, but I got to get out. Q. Okay. Just describe, just do whatever you have to do, do it as fast as possible, but tell us what you're doing for the record. A. Okay. Okay. I'm not going to -- I'm completing the installation here and then I'm going to loop around. Okay. It's telling us it doesn't find some of the needed unzipping. Yeah. Okay. We lost PK.UNZIP again. Q. How did we do that? A. I don't know. We yanked out the one version of PK.UNZIP. Unless we changed, if we changed has, or if the PK.UNZIP -- see, we're not on the CD ROM, and I'm guessing, I would assume then that PK.UNZIP is not in the path on the hard drive. So it can't find it because we're not in the right -- doesn't know what CD ROM to look at, and it doesn't find it on the hard drive. Q. I take it this option to get the program up and running faster is taking longer? A. That's correct. Q. Okay. And now, why don't we go back and try another option perhaps, copy it into the hard drive? A. No. Q. Okay. What do you suggest? A. Okay. I'm working it here. It's notifying us of decompression software that it does not find, that it would like to find. Okay. So I'm going to drop back to DOS. I'm going to -- I'm going to get my own editor and I'm going to go in and I'm going to modify the configuration file so I can stuff the CD ROM drive I want in there. And -- THE COURT: By doing this are you making any changes on the CD ROM? THE WITNESS: No. Can't change a ROM. It's read only. THE COURT: I see. That has to be cut by a publisher. THE WITNESS: Yes. I'm changing the configuration file. It was having problems recognizing the ROM in our configuration while, I'm going to force it a little harder. BY MR. OSTROWSKI: Q. That's a defect in the file retrieval program, correct? A. Yes. Q. Okay. A. Okay. Let me, let me go off the record, and let me just grab a disk here. (Discussion off the record.) MR. OSTROWSKI: Back on the record. Your Honor, I'd like the record to reflect that Mr. Swanson needed about three minutes of work to get the glitch which he's testified is part of the program corrected, and he also consulted with the plaintiff numerous times. BY MR. OSTROWSKI: Q. Mr. Swanson, could you just briefly explain how you got it back up and running? MR. KITCHEN: I'll raise the objection to what counsel wants on the record. What was run was a previous CD ROM disk which did something to the computer, and then he ran this one, and there was a problem. And I -- MR. OSTROWSKI: Well, that's not what he said. He said -- THE COURT: Can we have expert Swanson testify rather than expert Kitchen? MR. KITCHEN: Well, okay. Just as long as -- I don't mind, I don't mind that, Your Honor. THE WITNESS: Yeah. There was a problem in recognizing a CD ROM drive. MR. OSTROWSKI: Sorry. THE WITNESS: Now it's, okay, you have -- there are a couple of possibilities here as to what has caused that. I was assuming, you know, just from -- that it was a problem in the program. Maybe not. It could -- yeah. That was the next thing I checked. Were we trying to use a config file from a prior version, and that was going to screw us up. It looks like an error in the program, but I checked this stuff, man. It's, I just find it hard to believe that -- because it looked like an error, looked like an error. BY MR. OSTROWSKI: Q. Okay. A. And I'm not going to push, push beyond that. I'd have to check. Q. Okay. Let me ask you this. The error came as a result of a new feature that was not present on Plaintiff's 7, right at the beginning of the program? A. That's, that's what I suspect. Q. Okay. And that program was designed to allow the initial installation to be faster and more convenient for the user? A. Yes. Q. Okay. A. Yes. Q. And that did not, that did not in fact work, at least in your case, did it? A. Not this time. Q. And this is in fact a program -- well, I don't think we -- I think you stated that you were not certain which file retrieval system was on the CD ROM or -- to your own knowledge? A. Okay. PK.UNZIP is on the ROM's. I think we had problems when we went back, when we were trying to recognize the wrong CD ROM, there was, it was looking in the wrong places. Q. Okay. A. The files we needed existed but it wasn't looking in the right places for them. Q. Well, let me just ask you this. You are extremely familiar with file retrieval programs, including programs quite similar to the one that's operating before you, is that correct? THE COURT: Is that a question? BY MR. OSTROWSKI: Q. Is that correct? A. Yes. I'm certainly more, I'm more familiar with this, with this brand, with this series, than I am with any other. This is the one I know the best. Q. Okay. Now, we're at the main menu, the opening screen, more or less, after that initial CD ROM option screen? A. Yes. Q. For want of a better word. And how do we, if we're interested in, I think we were trying to stick to personal or home stuff. A. Okay. We have the personal applications. Q. Okay. How did you get down there? A. Okay. I used arrow keys to move a highlighted bar to a menu choice. Q. Okay. A. Okay. A menu of categories, a menu of, yeah, categories. Q. And on the, Plaintiff's 7, you used a, you hit a number? A. Yes. Q. Then enter? A. Yes. Q. Or something like that. Enter? A. Yes. Q. Okay. A. Type in your number and enter. Q. Now, what do we do to get the sub menu for personal applications up? A. Okay. We enter, select, so I press enter. Q. Okay. A. My ROM spins. Q. Now, what do we have before us now? A. Okay. This is a category listing. This is a listing of zipped files and a description of what's in them. Q. Okay. And I'm now getting used to this. I take it we have to unzip a file to use it? A. Yes. Q. Why don't we scroll down and perhaps you could pick a file that wouldn't cause any particular problems unrelated to the case? A. Yes. Q. Like Lotus being needed. Wipe out your credit card debt. A. Okay. Notice this one jumps, this one jumps file title to file title. That way you can't get caught in between here trying to unzip. Q. Okay. On the -- THE COURT: What would happen if you did get caught in between? THE WITNESS: It would just, it wouldn't do it. It wouldn't, you wouldn't get any action off it. It would do nothing, if you didn't catch the error yourself. THE COURT: If you were on the fourth line, for example, it wouldn't act as if it were on the first line. THE WITNESS: Right. It's got to have this name on that line. BY MR. OSTROWSKI: Q. Okay. Is that, is that a feature that was not on Plaintiff's 7, the first -- A. That is correct. That feature was not on 7. Q. Okay. But it was also not needed on 7, is that correct? A. Well -- Q. Because there was no additional description of the file? A. There were some lines that had additional description, and in those cases, yeah, it would have been nice to have it. Q. Okay. There were relatively few of those, I take it? A. There weren't that many. Q. Okay. So we've, we're now ready to unzip because we have the highlight bar on the line with the number of the program that's -- A. Yes. Q. -- I think the computer needs to know. And what do we do to unzip? A. Okay. The command bar, enter to select a file for further action. So we press enter. Here's our file manipulation window, and a new set of commands that now become available. Q. Okay. What do we have on this screen as far as options that are not on Plaintiff's 7? A. Okay. Now, okay, we've got the copy. Now, if we were on a picture file, we'd also have the option to view the picture file. That doesn't, that doesn't show here because the program is smart enough to know this isn't a picture file. Q. I'm sorry. I'm not, I'm not following you. Could you just explain that a little slower. A. If our original file -- in this case we selected, dead M G13. Q. Yeah. So I can wipe out my credit card debt. A. Yes. If this had a file extension that is typically used with a picture file, then the program would recognize it as such and allow us the option to view that picture file. Q. Okay. And that -- THE COURT: Such as mountain climbing, if there was one. THE WITNESS: Sure. Yes. BY MR. OSTROWSKI: Q. Is that a feature that's on Plaintiff's 36? We're on 36, correct? A. We're on 36. Q. We're running -- okay. Is that a feature that's on 36 that is not on 7? A. That's not on 7. Q. You sure? A. Yeah. Q. Okay. A. Okay. There's all -- Q. Are you sure from running it? Are you sure from just your general knowledge of -- well, how do you know it's not? A. We could go back and take, take a look, because, you know, we're constantly improving and this is something that I put in. Q. Well -- A. That wasn't there prior. You know, so -- Q. -- I didn't know what was coming, so that's why I didn't ask you about it. A. Okay. Q. Okay. So new pictures is, picture view, in my term, is a new option. Anything else that you can do here that you couldn't do on Plaintiff's 7? A. Yes. If -- okay, if this were an executable file. Again, the program is going to be smart enough to know that it's executable and it would allow us the option to run that file. Q. Okay. But how does that differ from what you could do on Plaintiff's 7? A. It just, it just assumes that every file you're going to get is a zip, and you say you can -- it doesn't have, it doesn't have the additional abilities that you may require if you are using, if you are on an executable or a picture file. Q. This, this program, in other words, has less options? A. No, this has more. Q. This has more? A. Yes. Q. Okay. What are the more options, specifically? A. Okay. We've got ability to view pictures. Q. Well, you've stated that. A. Okay. I'm -- okay, yeah. Okay. View and execute, we can, I know we can print a file here. I don't know if we can do one on 7. We can read a file. We can format a disk with, we have a nice pretty menu on this one I think to format a disk. What else? Okay. The go to work area, that's also not on 7. Again, the copy, copy files, you can't do that from here on 7. We have a lot more safeties and user friendliness added to the copy command and to the, when you're working with tagged files, if you're working with a group of files, we're friendlier there. We -- Q. Can you -- A. I'll spare you the long explanation of it. Q. Okay. Were you done? A. Okay. Covered read, covered print. We have the same type of thing -- Q. This is all from this screen? A. No. This is -- Q. I was just asking about this screen. A. Oh, I'm sorry. Okay. Yeah. Looks -- okay. We've got the view. Let's check help, too, to see if there's anything else in there. Okay. We can tag all the files. We can untag all the files. I think -- no, that was in, that was in 7, ability to global tag and untag. Q. Yeah. A. Okay. Search, we had that. Yeah. Q. Okay. Okay. But at this point on the screen, the typical user wants to do what, unzip? A. He's probably, most of the time they're going to want to unzip. Q. Okay. And how do you do that? A. Okay. We have extract, X. That's X. Yeah, see it's -- Q. You pressed X to unzip, and what did you press on Plaintiff's 7. A. Okay. I pressed X to unzip, but we're seeing the stuff that was in there from our last extraction. Okay. In Plaintiff's 7? Q. On Plaintiff's 7, how did you unzip? A. I think it was X enter. Q. Okay. And where are we now, are we unzipping, or do we get a further choice to -- A. Okay. We had -- it didn't find PK.UNZIP. Now, this is something with the system. This is not a problem with, with the retrieval. Something about our specific system set-up. Q. Okay. A. Okay. We can effectively skip over that part because we still have the last file, funny.DOS. See, we still -- we won't use that again, but -- Q. Are you saying that this is from another program? A. This, okay, these are the files that we extracted with the last disk we've used. Q. Plaintiff's 26? A. Yes. Q. Well, that seems to be a big glitch, and that's not related to the file retrieval system? A. That's correct. We couldn't find PK.UNZIP and it's, you know, with system set up -- MR. KITCHEN: I'll object to counsel's characterization of, that must be a big glitch. THE COURT: It may stand. MR. OSTROWSKI: Okay. BY MR. OSTROWSKI: Q. Should we go off the record, or can you fix it real fast? A. There's nothing, there's nothing to fix. We're -- Q. This -- I'm sorry. Go ahead. A. Okay. It didn't find PK.UNZIP, so although we're not looking at the file we requested, we have a file, an unzip contents file up here, and we can view all the features and see all the stuff we wanted, just as if it had been the file we're looking -- Q. Is this, are these programs on -- I'm confused. Are these programs on Plaintiff's 36? A. No. Q. Or are they on from -- A. These are from the last ones that were still in the directory. Q. Okay. Well -- A. We're just having a problem because the -- Q. -- how do we -- A. -- I'm assuming that the configuration file on this specific machine, configuration is different, and -- Q. Okay. I think I follow you. THE COURT: What do you mean by, still in the directory? Does that mean in the machine's memory? In the computer, rather than on the disk? THE WITNESS: That is, these files are on the hard disk. We deposited them there when we viewed the last disk and they're still here for us. THE COURT: But they're still there from the former disk. THE WITNESS: Right. We didn't erase them. BY MR. OSTROWSKI: Q. Is what you're saying that -- THE COURT: Well, the erasure would occur in the modem of the machine, right, the computer? THE WITNESS: You have an -- when we execute this program we have an option, do you want to erase these files, and I just said no. So that's, that's why they're still there. BY MR. OSTROWSKI: Q. Oh, okay. Is what you're saying that we're, we are operating the file retrieval system of Plaintiff's 36 on data from Plaintiff's 26? A. That's correct. Q. Okay. And we're only -- A. It will be fine. Q. We can fully demonstrate the features of Plaintiff's 36 without any taint from the former data? A. That's correct. Q. Okay. So -- THE COURT: That's correct, even though you do have that cominglement. THE WITNESS: That's correct. BY MR. OSTROWSKI: Q. Because once we get into that data, we're not in the file retrieval system anymore? A. Right. Our local area has been these files, yes. Q. Okay. So remind me where we were again. Are we ready to execute programs? A. Okay. We've extracted a file. We're viewing the list of files that were extracted and we're ready to execute some of these files. Q. Okay. And -- A. Or do whatever. Q. -- how do we, is there an interesting file there? Are we back to the funny -- why don't we pick -- A. Let's not do funny.DOS. Q. No. A. Okay. We had -- Q. Why don't you pick one? A. Okay. I can do just -- we have -- Q. How about funny.DOS. No. I think I picked that. I'm sorry. A. How about boo? Q. Okay. We want execute boo program? A. No. Let's do chomp. Q. Okay. A. Chomp looks fun. Q. Okay. A. Okay. So we're going to move it down to chomp. We have an X -- now, let me check something here. Okay. Q. Okay. How do you execute there? A. Okay. E, execute. It's in highlighted, you know, small point, you know, we're using highlighted things versus bracket. It takes up less, less screen space. Q. Okay. How do you, how did you execute a program on Plaintiff's 7? A. You would -- okay. You'd get over that, you'd highlight that one, you'd press enter, and then it would come back and ask you to confirm your choice. Execute, yes, no, cancel. And then you'd give it a Y, N or C, and enter. Q. Okay. It's, so it's pretty much the same here. You've highlighted the program -- A. There's similarities, you know. Q. -- and you're going to press E? A. Okay. We're going to press E to execute, and it asks us to confirm that we want to execute it. Execute chomp com, question mark. Q. But on Plaintiff's 7 you highlighted it, and what did you do to execute? It gave you a question? THE COURT: But you haven't executed yet because you had to confirm, is that correct? THE WITNESS: That's correct. It wants -- you know, did you slip up and press the wrong key, is what it's checking. BY MR. OSTROWSKI: Q. Now, that's been true, this confirm has been true of all three versions? A. Yes, with minor variations. Q. 7, 26 and 36? A. Sure. Q. Plaintiff's Exhibits? A. Yeah. This is, this is standard. This is like, this is something you really should do all over. Q. Okay. And how do you -- THE COURT: So would you confirm by hitting, for example, Y? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q. Okay. So why don't you do that and -- A. Y. Okay. We don't have to do a return here. Okay. This program also allows us to enter, to further customize our call to this executable. Q. Okay. I'm not following that. A. Okay. Well, some executables you can include what are called command line arguments. For instance, okay, in the, one of the old versions of Night, you could give it like a test, and you could give it a, you know, some switches. That's what we're allowing here. The prior versions, they just said, you give it the name, and you're not allowed to get any switches in there. Q. Okay. What, give me an example of a switch, and why it would be useful? A. Okay. There's a program called dazzle.XE, and what it does is it draws real pretty changing designs on your screen. And you can say, okay, if I just say dazzle, it comes up, it shows you a screen, it plays you a little song, it says, these are our authors, this is what I'm doing, and then it goes into the screen drawing part. Q. And you're saying you couldn't do this on Plaintiff's 7? A. That's correct. Q. Okay. A. Now, if I wanted to -- I'm sorry. Q. You mean there would be some way to do it, but it would take a long time, or, you know, more key strokes, and so on? A. You -- no. Q. No way to do it? A. You can't do it. Q. Okay. A. Okay. Now, okay, now, that's how you call dazzle, when you call it without command line arguments. Now, suppose, you know, I just want to run dazzle. I don't want to see this opening screen and I want to make sure that it's bios compatible, like say -- Q. Wait a second. What does that mean? A. Let's choose something else. Let's say I want -- okay, I want -- I don't want to see the opening screen and hear all this opening music. Just show me the designs and when I'm done I'll press a keystroke and it goes away like that. Q. Okay. A. We want to do it quick. Then I would say, dazzle, space, minus B. Q. So are you saying that some users wouldn't use this screen at all, they'd just cancel it out? A. This is not always required. This is just a benny. Q. Okay. And what, and say we want to cancel this out and just run the program? A. Okay. Enter. Q. Enter. Okay. Now we're in the program? A. Oh, that was it. Q. Oh. A. We saw it and we're already done. We're back. Q. Okay. A. Let's choose, want to choose another one. Q. Were we actually out of the file retrieval? A. Yes. We were, we went out and -- it was quick. You want to see it again? THE COURT: Well, what does that mean, quote, any key continues, unquote? THE WITNESS: I can press any key here, and it will go back to the file retrieval. BY MR. OSTROWSKI: Q. Is that the file -- are we in the file retrieval system right now? A. Yes, we are. Q. Okay. And how does that option differ from Plaintiff's 7, when you're out of a program? A. Okay. The reason, okay, what this screen affords you is an opportunity to see if there was an error in the program that you ran. With Plaintiff's 7, when you come out of that XE, you jump right back and you redraw your whole screen. If there were any errors in that program you ran, and they picked up an error message, it's too late for you to read them. It's gone. You're back to the other screen. This pauses, and shows you most of the screen. You can, oh, look, I had an error message here. You know. Want me to run -- Q. Okay. On Plaintiff's 7 when you're done with a program, what happens? A. It immediately returns to the, the work area screen, and overwrites any error messages that may have occurred. Q. And this one -- A. This pauses. Q. -- if there was an error message you'd see it, and you -- A. Yeah. Unless it was under this little window. Q. And what could you do if you saw one? A. It gives you knowledge. You know, it lets you troubleshoot an error. Q. Can you go back to the program though, once you're done? A. Sure. Any key will get us back. That's -- now we're where we would have been immediately on Plaintiff's 7. Q. Okay. Let's say there were no errors and we wanted to finish the program. What would we do again? A. Okay. You want to back all the way out of this? Q. Yes. A. Okay. Escape. Again it gives us, do we want to delete these files. Let's say no and keep them there. Q. Okay. Now we're back to the -- A. We're back to the file manipulation window, which is a subset of the category listing screen. Q. Okay. And if we want to just back out of the whole program -- A. Escape. Q. -- and get back to -- A. Okay. We're backing out, just to our category listing. Q. Okay. A. Escape again takes us to main menu. Another escape is going to drop us to DOS. Q. Okay. Now, how did the -- using escape a lot, that, it's pretty much the standard in the industry that when you -- escape cancels something and you back out? A. Yes. Q. To where you were before. And how does the Plaintiff's 7 CD ROM operate in that regard? A. He wanted a Q for quit, a Q and return. I don't know if, sometimes you -- okay, we didn't try it. Sometimes for convenience sake he'll also include an escape so, you know, because it's standard, and you know, so you could quit with either an escape. I don't know if that was done. Q. Okay. So escape is one key stroke and Q is two? A. Q return, yeah, is the quit that was the more common on the 7. Q. And how do we get back out to the main menu? A. We're at the main menu. Q. Oh, I'm sorry. And how do we exit the program? A. Escape. Q. Okay. And what do you see on the screen there? A. Okay. We got at the top blue bar, thank you for using Night, and then we'd go to our, our DOS prompt. Q. Did you see any copyright notice in the exit screen? A. No. Q. How about in the opening screen? A. No. MR. OSTROWSKI: I have no further questions of the witness. Thank you. (Witness excused.) THE COURT: Have you questions, Mr. Kitchen, while the witness is here at the machine? REDIRECT EXAMINATION BY MR. KITCHEN: Q. Yeah. Do you know where on this particular disk there is a copyright notice? A. No, I don't. Okay. In the code? Q. Well, I -- A. No. There's no copyright notice displayed with this program when you run it. Q. At all? A. Not in the XE, no. Q. Okay. It's not in the help file either? A. No. Q. Okay. Was that by choice? A. I don't ever recall anyone, you know, making a deliberate choice. Somewhere, some time it was taken out. It must have been by, you know, there must have been a choice to do it somewhere, yes. Q. Okay. Now, when these, when you start these CD ROM's, does it, does it read or write to any other part of the computer? A. Yes. Q. Where? A. It's going to read -- okay. When you open up a program, you're going to go into the directory that you defined and installation. This is where all my program code and things are. When you're going out to retrieval a specific file, it looks in a specific -- okay. We've got a specific set-up we use, okay, for directories. It's going to go to a specific directory by a naming scheme we've established, and read those files that are in there. When you extract a file, it's also writing to the disk, you know, that it's exploding and making a fresh version. Q. Writing to what disk? A. Writing to the hard disk. Q. Okay. So, this is designed to be used on a system then that has a hard disk? A. You can use it on a floppy but it's not best. It's, you know, there's not a lot of space on a floppy. Q. Okay. Nothing gets written to the CD ROM itself though, right? A. That's correct. You can't write to a ROM. Q. Okay. Now, in this particular computer, whose computer is this, is this yours? A. This is Larry's. Q. Okay. A. I assume this is Larry's. I don't know. Q. All right. Well, it's not your, it's not your computer? A. It's not mine. Q. Okay. So you didn't set it up or anything? A. No. Q. All right. Now, when you start up any one of these CD ROM's, what is the key word you use to start it up? A. Night is, calls the XE. Q. Okay. And have you done this on more than one version of this, of the CD ROM today? A. Yes. Q. Okay. And when that, when you type Night, that has some affect on what's on the hard disk? A. You're not reading, when you just type Night, you're not reading or writing to hard disk at that point. You're -- no, you are reading from the hard disk. Yeah, so it does, it affects. Q. What was on -- now, we're out of it, we're down to the DOS level now, right? A. Yes. Q. What's on the hard disk now that has to do with Night? A. We're got a -- okay. Let's do a directory here. We've got a configuration file. Q. You're typing D-I-R? A. Yes. Q. And what directory were you in at the time you typed D-I- R? A. I'm doing a directory of C:\Night, which is the directory that contains the, some of the pertinent files. Not the data files, but the working files, if you will. Q. And the C: part of that designation meant what? A. The C drive. This is the drive letter of -- this is the hard drive. Q. Oh. This is not the CD ROM, this is the hard disk that's on the computer? A. That's correct. THE COURT: I see six first dates up there. Seven of the dates are today's date. THE WITNESS: Yeah. Yeah. Okay. Because I went in, okay, this Night back, comes from this config. I edited this, okay, and my editor also made a back-up. So that's that. Install bat. We created that today in a prior version. I think that was, that's off 7. Yeah, see, we had an earlier time there. Yeah. And that covers them. And we just made these directories today so they're today. BY MR. KITCHEN: Q. Well, if a user bought this disk, he wouldn't have a, a directory Night in his, in his hard disk, would he? A. Not very likely, that's correct. Q. Okay. Well, then, wouldn't it be a little more even playing field if there wasn't a sub-directory or a directory on the C drive that said Night? Wouldn't that be a more usual way of starting this thing out, if you bought the Night Owl disk and put it in? A. I'm sorry. Excuse me. I'm -- Q. Well, in other words, if you were a user who just bought the Night Owl disk, would you have C:/Night on your C directory? A. No. Q. What would you have on there, anything with Night on it? A. No, you wouldn't have anything. Q. That isn't the way we started this one though, is it? A. That's correct. We already had, we had stuff in there. Q. You think it would make a difference here, if we deleted all this stuff, C:\Night, and started up like we had just -- A. We could do that. Q. -- purchased the disk? A. We could do that. Q. All right. Would you do that? A. Certainly. Okay. D-E-L. We're going to delete the directories. Am I sure. Yes, I am. Okay. I'm going to back out of this directory and delete the Night directory. Okay. Now I'm just, it's like it's never been done. Did you want to -- Q. Yeah. Then -- A. Okay. I'm going to go to the ROM drive, to Z. And I'm going to call the program Night. Okay. That throws up our installation choices screen. Q. This is what a user would see the first time he put the thing in? A. Yes, it is. Q. And how would he go about installing it? A. Okay. To install, we say I, it asks me a series of questions. Do you have a color monitor? Y, yes. Location of the Night directory. C, C Night. Q. Well, let me, let me stop you for a minute there. Is that asking for the location of where you want the Night directory to be? A. Yes, it is. Q. This isn't asking for the location of where it actually is because it isn't there yet, right? A. That's correct. Q. Okay. A. Okay. So we've, okay, we'll take the default answer. We'll say, yeah, sure, put it in C Night. ROM drive Z. We're going to do this same thing again. There we go. Q. And let me stop you for just a second. A. I'm sorry. I'm bringing it on that one. Q. In the second line, we had the words appear, what -- A. I know why we had -- THE COURT: Wait a minute. BY MR. KITCHEN: Q. What drive contains the Night Owl CD ROM, question mark, bracket, small e, close bracket, and then a green space that had an e in it, right? A. Yes. MR. OSTROWSKI: Objection. Leading. THE COURT: He's just reciting what was there before it changed to its present picture of having a Z in it. MR. OSTROWSKI: All right. MR. KITCHEN: Okay. BY MR. KITCHEN: Q. Well, now, and then you did something on that line, and pressed some keys and got a beep instead of what you wanted. What, what happened? A. Okay. This is -- remember earlier we had problems when I thought it wasn't recognizing the C drive, and I thought, oh, this is a glitch in the program. No. This was Phil's fault. I was -- what it does is it puts you -- okay, see here. It's putting us at the end of the default line. In the case of the CD ROM there's only one character there, so it's putting us at the whole end of the field, and I was trying to type in another answer when I was already outside the field. It said, I'm out of room, you can't type in anymore. That's why it was beeping at me before. That's why it beeped at me this time. This time I was smart enough to recognize that I had to play backspace. THE COURT: Well, I noticed before when you were saying Z, there was a small letter e in the green field. THE WITNESS: Yeah. That was the default answer. It's going to give you that, so if you want to just, if you want to, just want go like this and -- THE COURT: Okay. Okay. But the e was in the green field to which my finger is pointing in the second line at the same time your lips were saying Z. THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q. Well, now, let me ask you something else, Phil, and that would be, why is there e already in there? A. An e is a common drive for the source code. We just make a convenience. Q. Okay. So we're on track? A. Yes. Q. All right. Proceed with your installation. A. Okay. We're going to -- yes, I'll proceed. I want to justify my stupidity earlier, but okay, we're going to choose, okay, what is the name of your picture viewer file. We've got see show on this machine apparently, so I give it that. Is this information correct? Yes, we're correct. Y. Okay. It's copying pertinent files. Again, do you want to copy in the dir text files. No. Q. Well, now, did you have that option of whether you wanted to copy those text files onto the hard drive in the earlier versions? A. I don't know if it was in 7. It was in the disk we looked at before this. Q. All right. We've looked at a total of how many disks? THE COURT: Now, the one you looked at before was what, Plaintiff's 26? MR. KITCHEN: Well, if -- I don't want to interrupt you, Judge. THE COURT: Well -- MR. KITCHEN: I was going to -- THE COURT: -- we got 36 in there now. MR. KITCHEN: Yes, Your Honor. I was going to attempt to clarify. THE COURT: And he had talked earlier, 26. I hadn't myself observed the number. BY MR. KITCHEN: Q. Do you know how many disks we've looked at? A. I think we looked at three. Q. All right. And do you remember the Plaintiff's Exhibit number on the first one? A. First one was Plaintiff 7. Q. Okay. Do you know what version that was, by the way? A. No. Q. Okay. And do you know what the second one we looked at was? A. No. Q. Okay. All right. MR. KITCHEN: Well, I'll ask counsel, can we stipulate that the first one that was put in was Plaintiff's Exhibit 7, which was PDSI-004-1? MR. OSTROWSKI: Yes. MR. KITCHEN: And the second one we looked at was Plaintiff's 26, which was NOPV-007? MR. OSTROWSKI: I'll stipulate that the second one looked at was Plaintiff's 26, NOPV-7. MR. KITCHEN: Okay. And now we're looking at NOPV- 009, correct? MR. OSTROWSKI: Yes. That's, I'll stipulate to that. MR. KITCHEN: Okay. Which is Plaintiff's 36. Okay. And I bring it up, I think it's worthy of bringing up because we keep talking about 7, and obviously the second one that we did, which was Plaintiff's Exhibit 26, is NOPV-7 and Plaintiff's 7, Exhibit 7, was the first one, which was PDSI- 004-1, as if all of this wasn't confusing enough. All right. BY MR. KITCHEN: Q. In any event, what would be the benefit of answering yes in that previous question and having the directory file end up on the hard disk? A. Increase in speed in the program, in certain areas of the program. Q. Okay. How would that, how would that affect the user, or how would that help the user? A. When he goes onto the main menu and he says, okay, I want to view personal applications, when he presses enter, the time from -- we have -- I'm sorry. When the user presses enter in selecting a category off the main menu, the next screen, that is the category listing screen, is going to come up quicker, and we select this. Q. Do hard disks access files more quickly than -- A. Yes, they do. Q. -- CD ROM's? A. Yes, sir. Q. Okay. All right. Why don't you continue with the process here. A. Okay. I got installation -- THE COURT: I'm expecting a telephone call with an argument so we're going to have to interrupt for whatever time that takes. MR. OSTROWSKI: Okay. MR. KITCHEN: Okay. THE WITNESS: Okay. I got installation config -- MR. KITCHEN: We're interrupting right now, Judge? THE COURT: Right now. MR. KITCHEN: Okay. 495 I N D E X Witness Dir Cross Redir Recr Philip C. Swanson 504 671