UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - RICHARD E. GRAHAM, CASE NO. 91-CV-800 Plaintiff, Buffalo, New York -vs- October 16, 1993 9:00 a.m. LARRY E. JAMES, Defendant. - - - - - - - - - - - - - - - - - - - - - - HEARING (Excerpted testimony of STEPHEN J. BROWN) (continued from 10-12-93/Cross Redirect Recross) BEFORE THE HONORABLE JOHN T. ELFVIN UNITED STATES DISTRICT COURT JUDGE Appearances: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, NY 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording, transcript produced by transcription service. P R O C E E D I N G S THE COURT: What are we on, redirect now or what? MR. KITCHEN: Yes, sir, I believe we are. THE COURT: You had finished your cross examination, Mr. Ostrowski? MR. OSTROWSKI: Well, I had except I guess I was supposed to be supplied notes, but I don't care what order we do it in. THE COURT: Have you seen the notes? MR. OSTROWSKI: I haven't seen the notes, no. THE COURT: We better go in the proper order and you complete your cross examination. CONTINUED CROSS EXAMINATION OF STEPHEN JAMES BROWN BY MR. OSTROWSKI: Q Good morning, Professor Brown. A Hello. Q Just to clear up some of the old, old business, I believe you'd stated the other day that you had no notes on anything except five modules? A That's correct. Q Okay. And what modules were those? A Looking at Exhibit No. 50, sheet No. 9, the DIR-module, on sheet No. 10, the goodbye module. THE COURT: What was the module on sheet nine? THE WITNESS: On sheet No. 9, Your Honor, it was DIR, D-I-R. THE COURT: D-I-R, yeah. THE WITNESS: On sheet ten, it was goodbye, B-Y-E. One sheet No. 18, execute, E-X-E-C-U-T-E. On sheet No. 24, unzipit, U-N-Z-I-P-I-T, all one word; and on sheet No. 33, D- O-S-C-M-D. BY MR. OSTROWSKI: Q Is it fair to say you started with the earliest - - Well, did you form an opinion as to which of these programs - - Let me strike that. Were you - - Were you told which programs - - which was the first program? A No. Q Okay. Did you form an opinion as to which came first? A Only by the time/date stamp that appeared on the source code floppy disks. Q Okay. So other than that, you have no idea which came first out of 50, 49 and 48? A If I can trust the first couple lines at the top, Exhibit No. 49, sheet 1 says copyright 1992. Q Oh, I'm asking you to disregard the dates on there, and other than that, did you form any opinion as to which came first? A No, I couldn't determine that other than the time and date stamp that I had reference to earlier. Q Well, did you start your analysis with Exhibit 50? A Yes. Q Why? A It appeared to have the oldest date. Q Okay. And I believe you stated the other day that you picked these five modules at random? A Sort of at random. Typically when I look at my students' assignments, I look how my students start things. I look how my students end things, and then I pick some things in the middle that I think are really important, germane to the functioning of their assignment. I did the same thing here. I looked at how I wanted to find the module that first started the opening screen, find the module that had the ending screen and then pick what I thought were three important actions in this particular assignment. Q Okay. So today you're saying that these are five important modules? A No. Q No? That's what you just said, though? A I said there are three important modules in the middle. There is an opening screen, three important modules in the middle and the ending screen. Q Well, the opening and ending screens are pretty important, aren't they? Or not? A Yes. Q Okay. So you're saying today that the five modules you've analyzed are very important, or are important? A Are important, yes. Q Okay. But the other day you just picked them at random and they weren't particularly important, isn't that correct? A I can't recall exactly what I said the other day, but I picked three modules at random from the center portion, yes. Q Okay. But the other day you said you picked all five at random, isn't that correct? A I can't recall. That may be correct. Q Okay. Have you modified your testimony to respond to the points that I raised on cross examination? A I don't understand. Modified what? Q Well, I asked you if you picked them at random and you said yes. Have you had a chance to sit down over the weekend and think about, boy, maybe that's not the best answer to advance my client's interests. Have you now changed - - THE COURT: My client? My client? MR. OSTROWSKI: Well - - THE COURT: Well you used the term. I'm just wondering. BY MR. OSTROWSKI: Q Well, you're working for Mr. Graham, aren't you? A No. Q You're not? A No. Q Who are you working for? A Myself. Q Okay. A He asked me to testify. Q He's not paying you? A No, I have not received a penny. I paid my own gas. I paid my own tolls. However, I did receive a ham and cheese lunch on Tuesday. Q Oh, that's very amusing. Didn't you say the other day that you expected to be compensated? A Yes. Q Are you aware that experts such as yourself can charge a hundred or a hundred and fifty dollars an hour? A Yes. MR. KITCHEN: Your Honor, I'm going to object - - THE COURT: No, please. MR. KITCHEN: - - right now - - MR. OSTROWSKI: Fine. MR. KITCHEN: - - and I'm going to object to counsel and, for that matter, I'm going to object to the court attempting to educate this man in the witness box as to the potential he could be getting from my client - - MR. OSTROWSKI: Exactly what I'm doing. MR. KITCHEN: Well, that's against my client's financial interests, just as it was when you said the same thing to Mr. Swanson. BY MR. OSTROWSKI: Q Are you aware that you could receive a hundred or $150 an hour generally for testifying in court? A Yes. Q And how many hours have you put into this case so far? A Twenty, thirty. Q So you could - - Are you aware that you could send him a bill for $2,500 - - MR. KITCHEN: Your Honor, I'll object that - - THE COURT: You can't, you can't now. MR. KITCHEN: - - that's speculative and irrelevant. THE COURT: Yeah. Any such compensation would be pre-arranged, wouldn't it, Professor Brown? Isn't that right? THE WITNESS: What's that? THE COURT: You'd get any such compensation arranged at the outset if there were to be any, wouldn't you? THE WITNESS: We never talked money. He said expenses. THE COURT: But if you were to be compensated, you would understand you'd do that at the outset? If you were going to do a job, you'd know how much you were going to be paid before you started? THE WITNESS: Oh, absolutely. THE COURT: Sure. THE WITNESS: I'd prepare a written quotation. MR. OSTROWSKI: Your Honor, all I'm asking the witness is he has an absolute right to be paid under the - - THE COURT: Not at this point unless he's made some arrangement. MR. OSTROWSKI: Your Honor, I respectfully would suggest that under the theory of quantum meruit - - THE COURT: No. MR. OSTROWSKI: - - an expert has a right to be paid - - THE COURT: No. MR. OSTROWSKI: - - at market rates. THE COURT: No. The court will say no, not unless pre-arranged. MR. OSTROWSKI: Then I'm in big trouble in my particular situation. BY MR. OSTROWSKI: Q With respect to the DIR program in Plaintiff's 50, what did you do next in your analysis? A I did two steps. Step number one was to actually see this DIR module in action on the CD-ROM. Then I - - after I saw it in action, I compared the source code of Exhibit No. 49 with the source code of 50. I also compared the operation of the DIR module from the CD-ROM or from the floppy disk, in this case, with execution from Exhibit No. 50, how they actually functioned on a computer. Q Do you have any notes, going back to my other points, do you have any notes on this analysis? A I have a few. Q Are they with you? A Yes. Q Are these all of your notes from - - A That's all of them. THE COURT: You say you have a few. Does that mean that there are others elsewhere or were others which you now don't have? THE WITNESS: This is all that I have, and the number is few, it's either three or four, Your Honor. BY MR. OSTROWSKI: Q Three or four what? A Pages. Q Showing you Defendant's Exhibit 15, are these your notes? A Yes. Q Now, the first couple of pages of the notes, do you list - - there's a listing of modules on the far left side? A Correct. Q Where are those from? Are those from Plaintiff's 50? A Yes. Q Okay. And how many approximately are listed on the two pages? A Forty-eight modules. Q And you only have notations for five? A Correct. Q Okay. Did you compare the - - You stated that you compared the source codes from DIR in 50 to - - Was there a comparable program in 49? A Yes. Q What was it called? A Well, I have to consult my notes, whatever it was called on my notes. Q Okay. A I also have the page where it references to the exhibits. The corresponding module from Exhibit No. 49 is found on sheet 7. Q What's it called? A It's part of another module. This one I have to look within the main module to find the same functionality. Q And did you find the same functionality? A Yes. Q Now just to clarify because I think these are maybe in reverse order or whatever it is, 49, the one that is dated the second in the series? A Yes. Q And 48, ironically, is the one that's dated last? A Correct. Q So we're working in reverse order? A Correct. Q Did you compare, within that part of the main module that was similar, did you compare any of the source codes? A Absolutely. Q And were any of the source codes similar between those two? A Similar in functionality, yes. Q Well, I'm asking you were they literally similar? A Absolutely not. Q Okay. But they were similar in functionality? A Yes. Q And what does the program in DIR-50 do? A The program - - Q Are you testifying from your notes at this point? A No, I'm looking at the program. Q Go ahead. A I'm looking at sheet 9 of Exhibit No. 50. This DIR module goes to the disk to find out the categories that are available for selection, clears the screen and places these categories on the screen for the user to use, and at the bottom of the screen, it presents two menus, one to enter a number, U for user directory, S for search, E for set-up, D for DOS and Q to quit. Then it waits for the user to do something, and based upon what the user does, there are a series of if statements checking to see is it H, and if it is H, go and get some help. If it is D, go, indeed, go and do this DOS command. Then he further checks to see whether it was a Q or a null return, and then after he does that, he comes back down, clears the screen, presents the windows again. Q Okay. And are those functions substantially similar to the same module in 49? A (No response.) Q I'm just asking yes or no at this point. A Partially. Q Can you quantify that or is that not possible? A There is a totally different approach in number - - Q I'm just asking you if you can quantify that with a degree of similarity or is that - - does quantification not apply to the degree of similarity? A Are we talking about functionality or the exact lines to accomplish it? Q Well, I believe you stated that the source codes are not similar? A Correct, they are not. Q They're absolutely not similar? In other words, are there any lines that are similar? A Yes. Q Well, how many lines are similar? A At the bottom of the screen where the user presses D to select the DOS command, that is similar. Where the user presses S to search, that is similar. Where the user presses U to do user, that is similar. The way that these programs quit is a little bit different. In Exhibit No. 50, you must press Q in order to quit. In Exhibit No. 49, you press the escape key instead. Q Okay. Can you quantify the degree of similarity and the source codes between the two modules? A Including that what I just mentioned? Probably ten to twenty percent. THE COURT: Of similarity? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q Now, is it possible to quantify the degree of similarity and function or is that a category mistake or whatever you scientists call it? A Functionality are very similar out of need. Q What do you mean by that? THE COURT: By what? MR. OSTROWSKI: He said that they're similar out of need. BY MR. OSTROWSKI: Q What do you mean by that? A This is a file retrieval system, so you must - - THE COURT: This is what? Is it particular one we've been talking about, 49 and 15, are you talking about 50 and a particular module? THE WITNESS: All three of these exhibits, 48, 49 and 50, are file retrieval programs. Their function is to retrieve files. I would hope that in the selection that you would present a list of categories that are available for the user to select from so they can narrow the field down first, and that is evident in all three of these. Each person who has a computer may want to place these files that are being retrieved in a particular area. I would hope that this, in any one of these three exhibits, I would not hope, I would expect the program let me specify where I want to put it. If I don't know the name of it, of a particular program but I would like to look through or what's called search through the descriptions for something that's maybe dealing with quick basic as opposed to basic A, I would expect some kind of a search engine in this file retrieval system. If I wanted to, so to speak, shell out or temporarily suspend the program and do some DOS services, I have a floppy disk but it's not formatted, and I need to format this floppy disk before I can retrieve it to this floppy disk, I would expect this file retrieval program to do this. When I was done, I would also expect this program to allow me to gracefully quit without leaving a lot of garbage on the screen or retaining any terminate and stay resident programs in memory. BY MR. OSTROWSKI: Q Okay. You would expect that - - A I see that - - Q - - as the user of the computer? A Yes. Q But somebody actually has to do the work to make that happen? A Correct. Q Have you ever written a file retrieval program? A Many. Q Have you ever written one for a CD-ROM? A No. Q Okay. When were file retrieval programs first written for CD-ROMs, do you know? A Not exactly. The earliest availability of CD-ROMs that I can remember is 1989. They were very expensive. In fact, they were quite cost prohibitive for the average computer user. It wasn't until late '90, first part of '91, that the prices of CD-ROMs came down where the average individual could start affording them. Now in 1993, they're less than $200. Q Is it your contention that any similarity in function between file retrieval programs is dictated by the necessities of the programming language and the need to satisfy the consumer? A Absolutely. Q Okay. So that if you were to take someone else's file retrieval and change the language and rearrange the language but do exactly the same thing throughout the entire program and every single function and sub-function, that would be - - There would be nothing original in that work that would be protected by copyright? MR. KITCHEN: I'll object. I think he's asking the witness - - THE COURT: What's the objection? MR. KITCHEN: - - for a legal conclusion. THE COURT: If he can't answer, he won't. If your objection is it's beyond his expertise, you may have to develop what that expertise is as far as the legalese. BY MR. OSTROWSKI: Q Can you answer the question? A I'm not sure I understand it. THE COURT: There, we got an answer. BY MR. OSTROWSKI: Q Okay. Is what you're saying that every file retrieval program has the same functions, both at the level of generality and at the level of detail? A A certain core amount, yes, absolutely. THE COURT: Namely to retrieve files? THE WITNESS: Yes. I would hope that it would have a search portion to it due to the mammoth amount of files that are available. I would hope that it would give me some kind of flexibility in choosing, going along with that file retrieval, where to put it, whether to put it on floppy drives or one of many hard drives. BY MR. OSTROWSKI: Q So that there's essentially nothing original about any file retrieval program? A Other than they retrieve files? Not in what they do, how they do it. That's where the original part would come in. Q Okay. And what do you mean by that? A How the person - - What code, what instructions the author of that program writes in order to accomplish that particular goal. Q Okay. So the only aspect of originality in file retrieval would be the literal source code similarity? A In most respects, yes, but there would be some other cases where some unique structures were set up that were brand new, never done before. Q Okay. Now did you compare the module DIR in 50 to anything comparable in Plaintiff's 48? A Yes. Q And was there anything comparable? A No. 48, Exhibit No. 48 and Exhibit No. 49, there were great similarities. Q That's not what I'm asking. THE COURT: Between those two? THE WITNESS: Forty-eight and 49? MR. OSTROWSKI: That's not what I'm asking. THE COURT: Is that what you're saying? THE WITNESS: Would you repeat the question? THE COURT: Well, I'm trying to understand your answer. You said there were great similarities, and - - in 48 and 49, and I wondered if the similarities were between those two or from those to something outside of those two. THE WITNESS: No. 48, Exhibit No. 48 and Exhibit No. 49 have great similarities between 48 and 49. THE COURT: Vis-a-vis each other? THE WITNESS: Yes. BY MR. OSTROWSKI: Q What I'm asking you is did the DIR module in 50 have any counterpart in 48? A Yes, on sheet No. 8 of Exhibit 48. Q And what was that called? A Again, this was very similar to Exhibit No. 49 in that it was not its own distinct module. It was a portion of the main function or the main module. Q And was there - - Did you compare the source code similarity between 50 and 48? A Yes. Q And can you quantify the degree of similarity between the two programs? A Again, ten to twenty percent. THE COURT: That's between which ones? THE WITNESS: Between Exhibit No. 50, Your Honor, and Exhibit No. 48. Now, when you - - when I say - - MR. OSTROWSKI: I - - THE WITNESS: - - same source code, I'm saying they spelled enter E-N-T-E-R, user with a big U-little S-little E- little R, search with a big S-little A-little R-little C- little H, so that's included in that ten percent and the twenty percent. BY MR. OSTROWSKI: Q But what I'm asking you is did you compare the similarity of lines of code - - A Yes. Q - - between the two programs? And what was the degree of similarity? A The lines of code? Q Yes. A Less than five percent. Q And did you compare the functionality of the two programs, in 48 and 50? A Yes. Q And were there any similarities? A Yes. Q Which? What were they? A Very similar to the comparison between 49 and No. 50. THE COURT: Forty-eight and fifty he's talking about. THE WITNESS: Right and forty-eight - - THE COURT: Is that right? THE WITNESS: Forty-eight and 50 compares - - MR. OSTROWSKI: Yes. THE WITNESS: - - identically or not identically, very similarly to the comparison between 49 and 50. They do allow the user to enter a number of category that the user wants, allows the user to select his or her own directory, do a search, do a set-up, go to DOS and quit. However, in number - - MR. OSTROWSKI: I object as not responsive. THE COURT: I don't know. MR. OSTROWSKI: Well, he's just blurting something out. THE COURT: You mean because he paused, the balance of it may not be responsive? MR. OSTROWSKI: Yes. THE COURT: Go ahead, you may complete your answer. THE WITNESS: There was one distinguishing feature that was on Exhibit No. 48 that didn't exist in No. 50 nor No. 49. MR. OSTROWSKI: Okay, that's not - - I object as not responsive. I didn't ask him that. THE COURT: Yeah, you were talking about 49 and 50? MR. OSTROWSKI: I was talking about similarities, not differences. THE COURT: Well, what's the difference? Ones the mirror of the other. To say that one is different is to say it's not similar. MR. OSTROWSKI: The difference is that I'm cross examining the witness, Your Honor, and I don't want him blurting out answers to questions that I'm not asking because I have certain things that I want to accomplish in a limited amount of time. THE COURT: What limited time? Go ahead. MR. OSTROWSKI: I have a lunch date. BY MR. OSTROWSKI: Q Okay. Would you say that the detailed functions of 48 and 50, and we're talking about DIR in 50, part of main in 48, were they substantially similar? A In functionality? Yes. Q And did 48 have any features that 50 lacked? A Yes. Q What were those? A There was an additional feature that allowed the user to select the category they wanted by using the up and down arrows to go up and down, to go down, left arrow to go left, right arrow to go right to select how the user wanted it. In comparison to, on Exhibit No. 50, you had to type in the number. Q Okay. That's not an original idea, is it? A No, it's done all the time. Q Okay. Were there any - - Was there anything else on 48 that was not on 50? A Only in approach. Q Okay, like what do you mean by that? A In Exhibit No. 50, the author of this program read the disk to find what categories were available, there's 48 or 50 or 60 or whatever. Then when the user picked some other module to go, when it returned back to DIR, it read the disk to see those same 50 or 60 names and put them on the screen again. When the user would leave, it would come back and read the disk again. That's pretty much the signature of this program. I didn't see that in these other two. Q That was in 50? A Yes. Q But not in 48? A No. Q Okay, I guess you misunderstood my question. What I'm asking you is was there something else in 48 that was not in 50 other than - - A Other than that approach - - Q - - selecting the category by scrolling or whatever? A No. Q Okay. So they were substantially similar in functionality except that 48 had one thing scrolling, which is an old idea which has no originality in it? MR. KITCHEN: I'll object to - - THE COURT: Why? MR. OSTROWSKI: What? MR. KITCHEN: Well he's - - He's saying now that it's substantial. That - - That's never been - - MR. OSTROWSKI: That's what he said. That's what he just said. THE COURT: He may answer. MR. OSTROWSKI: It's cross examination anyway. THE COURT: I don't know why they call it scrolling rather than strolling, but that's all right. Go ahead. THE WITNESS: What was the question, please? MR. OSTROWSKI: You can get mugged when you're strolling but not scrolling. BY MR. OSTROWSKI: Q Is it fair to say that we're talking about DIR in 50, comparing it to part of main, which you've identified as the same module, right? A Correct. Q Okay. Is it fair to say that those two modules are substantially similar except that 48 has one new scrolling option which is, by no means, original? A It is original in the file retrieval. That's the first time I had seen it in a file retrieval system. Q Okay. It's not an original idea in computer programming, is it? A Oh, no, it's used all - - THE COURT: Original application? THE WITNESS: The scrolling is very - - THE COURT: Original application? THE WITNESS: I don't understand. THE COURT: The utilization of this non-unique idea in this field is a new application? THE WITNESS: This is the first time that I had seen it, Your Honor, an old idea used in this context. BY MR. OSTROWSKI: Q Okay. Is it fair to say that 48 and 50 are substantially similar in function except that 48 has one old new idea in it? A I thought it was a rather clever new old idea. Q Okay. Is it fair to say that 50 and 48 are substantially similar in function except that 48 has a new, old, rather clever idea in it? A Yes. Q Okay. Now you looked at the goodbye function in 50? A Yes. Q And did you compare the source codes, lines of code in goodbye 50 to anything - - Did you find anything similar in 49? A Yes. Q And what was that called? A On sheet 10 of Exhibit No. 50, is the goodbye module. This goodbye module clears - - Q What I'm asking you is did you find a similar program in 49? THE COURT: I think he's in the process of answering if you let him. MR. OSTROWSKI: It sounded non-responsive to me, Your Honor, and Mr. Kitchen was interrupting - - THE COURT: Sounded to me as he - - MR. OSTROWSKI: - - my witnesses. THE COURT: - - professorily was going to get to the answer. Go ahead. MR. OSTROWSKI: I thought we'd established that when witnesses are not responsive, there's no need to ask the court - - THE COURT: He was being responsive I thought. Go ahead. We've muddied the waters, so ask a new question. THE WITNESS: What's the question? BY MR. OSTROWSKI: Q Is there a similar module in 49? A Yes. Q What's it called? A It's located on sheet number - - Q What's it called? A I will have to look at Exhibit No. 49 to see its exact name. THE COURT: What sheet? MR. OSTROWSKI: Okay, fine. THE COURT: What sheet? THE WITNESS: Sheet No. 67 of Exhibit No. 49. The question again, please? MR. OSTROWSKI: Is there a similar - - THE COURT: The last question was what is, what's it called? THE WITNESS: In both modules, it is called goodbye. BY MR. OSTROWSKI: Q Okay. Did you compare the lines of source code between those two goodbye programs? A Yes. Q And can you quantify the - - can you quantify the degree of similarity between the two programs and source codes? A This is a tough one. Do I include all rights reserved, copyright by? Q No. A Do not include those? Q No. A How about thank you for using? Q Well, is thank you for using an executable programming language? A It's a - - Q Perhaps you're confused about what a source code is. Is thank you for using a source code? A Thank you for using is a string literal that is part of instruction that is to be executed by the computer. Is it part of the instruction? The answer is absolutely yes. Q I didn't ask you if it was part of the instruction. I'm asking - - A The instruction is the source code. Q Please don't - - Please don't interrupt me. I'm asking you if it's part of the source code. A Yes. Q Okay. Then I'm asking you to include it in the comparison, if it's an executable source code. A It is also, all rights reserved is also included in the source code. Should I or should I not include that? Q I want you to include anything that you consider to be part of the source code in the sense that it does work in the computer. A In that - - THE COURT: You mean any part of it that performs some function or job in the computer? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Such as saying thank you might not do that? MR. OSTROWSKI: I don't think it really does, but I'm not an expert. THE COURT: Wouldn't seem to me - - As a lay person, it wouldn't seem to me to be functional, but anyway. THE WITNESS: Including all rights reserved, copyright by, including thank you, I would say that they're approximately between 30 and 40 percent similar due to need. BY MR. OSTROWSKI: Q Source code similar due to need? A Yes. Q Okay. But you just said before that the only original aspect of this type of programming is the source code? A Correct. Q Well, didn't that imply that there's more than one way to write source code to achieve the same function? A That is correct. Q Now you're saying that the need could require the source code to be absolutely identical? A Not identical, similar. Q And now you're saying that need could require source code to be similar? A Absolutely. Q Okay. And taking out the copyright notice, what's the degree of similarity in source code? A Ten, fifteen percent. Q And what's the - - Did you do an analysis of the functionality of each program module? A Yes. Q And are they substantially similar? A Yes. Q Does 49 do anything that 50 doesn't functionally? A No. Q Did you - - Is there a comparable program in 48? A Yes. Q Plaintiff's 48? What's it called? A It's located on sheet No. 117 of Exhibit 48. Looking at Exhibit No. 48, the name of the module is goodbye. Q Did you analyze lines of source code to compare for similarities between 50 and 48? A Yes. Q And can you quantify the degree of similarity? A Do I or do I not include thank you for using? Q Is thank you for using part of documentation? A No, it's one - - it's part - - Q I'm just asking you if it's part of documentation? A No. Q Is thank you for using a function? A No. Q Then I don't want you to include it. A Zero percent. Q Did you compare the functionality in the goodbye program from 48 to the one in 50? A Yes. Q And was there, was there any similarities, were there any similarities? A Yes. Q Are they substantially similar? A Yes, out of necessity. Q You keep blurting that out. Have you discussed any copyright law with Mr. Kitchen? A No. Q Have you looked any up yourself? A No. Q Are you - - Do you know of any from pre-existing knowledge? A No. Q They are substantially similar in function? A Yes, the goodbye - - Q I'm just asking you yes or no. A Yes. Q And does - - THE COURT: Was this the goodbye module you were comparing? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q Does the goodbye module in 48 do anything new which is not in 50? A It does less. Q Does it do anything new that is not in 50? A No. Q Now the next module you compared was execute, E-X-E, in 50? A Come in again? Q Execute? A Yes. Q I'm sorry, E-X-E was my abbreviation, execute. A Correct. Q And did you find a similar program in Plaintiff's 49? A I have a page reference. Q Okay, what's the page? A Sheet number 25 in Exhibit No. 49. Q And is that, what's that called or is it part of something else? A In Exhibit No. 49, the module is called display file manipulation window. THE COURT: Called what, display? THE WITNESS: Underscore, file, underscore, manipulation, underscore, window. All one word, Your Honor. BY MR. OSTROWSKI: Q What was the third word there, display file what? A Manipulation, underscore, window. Q Did you compare the source codes in those two modules between 49 and 50? A Yes. Q And can you quantify the degree of similarity in source code? A Here we go again. Do I use DOS, DOS is mentioned in both. Do I include the word DOS, help, copy in my estimation or not? Q Well, let me see it. Yes. A Including the stringed literals, I would gauge it at approximately 20 to 30 percent similar. Q Why are the string literals in there? A The stringed literals tell the computer to display exactly that literally on the screen so the user can read them. Q How many string literals are there in the world of computer programs? A Practically infinite. Q Okay, and how many do you see in that particular module? A I see two in Exhibit No. 50. I see similar words in different literals in Exhibit No. 49. Q Well, I'm not sure what you mean by that, similar words in different what? A In Exhibit No. 50, there is a stringed literal that includes the word extract, copy, DOS. Q Okay, so the addition of string literals, I take it, would reduce the percentage of similarity? A Yes. Q Did you - - Did you compare the functions between 49 and 50? A Yes. Q And are they substantially similar? A In similar, do you mean does 49 do similar things to what 50 does? THE COURT: In the same way? Wouldn't that be included, Mr. Ostrowski? MR. OSTROWSKI: Well, let's start out at the level of generality, yes, do they do the same things? THE WITNESS: Yes, 49 has the same features or the same functionality as No. 50 in one, two, three, four, five, six cases. THE COURT: In what? THE WITNESS: In six cases. BY MR. OSTROWSKI: Q You mean by case, do you mean a line of code or a very minor, a very small - - well, a line of code or a discrete function? A Discrete function. Q And how many of these discrete functions are in 50, roughly speaking? A Six. Q Okay. So all the discrete functions of six are done in 49? A Yes. Q Does 49 do anything that 50 does not? A Yes. Q Okay, what is that? A It allows the user to view a - - I don't want to call them - - they could be photographs, they could be graphics, they could be expressions of arts, but essentially pictures. Q And 50 does not do that? A Not that I'm aware of. Q Did you look at any of the CD-ROMs that - - Well, were you informed by Mr. Graham which CD-ROMs had Exhibit 50 on it as the file retrieval, and did you do any work with the CD- ROM on that basis? I know that's two questions, but - - A First question first. Q Take either one. A Did I look at the CD-ROMs? Q Do you have any idea which programs are on which CD-ROMs from just talking to Mr. Graham? A I'm not sure, no. Q Okay. A I couldn't testify which program was - - which one of these programs in its compiled form was on CD-ROM No. 5 or 6 or 7, no, I did not do that. Q Right. A No, I didn't do that, but I could do that. Q You could do what? A I could take a look at this source code, look at the menus that are displayed on the screen and identify which CD it was on. Q Okay. Did you find any other functions on 49 that were not in 50? A Yes, there was also the option to format a floppy. THE COURT: Option to what? THE WITNESS: Format a floppy. BY MR. OSTROWSKI: Q And you couldn't do that on 50? A Could you do it? Q Yes. A Yes, you could use the DOS command to do that, but you would have to type it in yourself. Q Okay. Are you sure that there's no other module in 50 that allows you to format a floppy? A There could be, and I'm not aware of it. Q Are you sure that there's not any module in 50 that allows you to do graphics? A There could be. I'm not aware of it. Q Any other functions in 49 that are not in 50? We're only talking about the execute and display file window, it's a - - A No, I think that about covers it. Q Now you said that - - You said that they're substantially similar in function, correct? A Yes. Q And that was even taking into account that 49 had two new functions? A Yes. Q So taking, excluding for the moment those two new functions, all of the functions in 50 are replicated in 49, right? A Yes. Q Now, did you compare the source codes - - Did you find any similar program in Plaintiff's 48 to correspond with execute in Plaintiff's 50? A Yes. Q And what was that called and where is it located? A It's located on sheet No. 37 of Exhibit No. 48. Q And what's it called? A It is also called display file manipulation window. Q Were there any similar source codes, lines of code between 48 and 50? A Yes. Q Can you quantify the percentage of similarity? A Do I include D-O-S, C-O-P-Y, Q-U-I-T? Q Yes. A Then that number's going to be larger. I would say some place between twenty and thirty percent. Q Well, didn't you say that including those list commands actually reduced the number when we were comparing 50 and 49? A No. Q Because they were in 49 but not in 50? You didn't say that? A When I compare Exhibit No. - - Q I'm just asking you what you said. A - - 48 to the corresponding Exhibit, corresponding lines in No. 50, if I were to include just the program lines without the literals, that number would be lower than if I compared No. 50 with No. 48 including the stringed literals. Q Okay. What would that number be? A I'd say approximately ten - - twenty to thirty percent including the stringed literals. Q Well, I'm asking you without the stringed literals. A It would be a smaller number. Q Do you know what? A I would estimate between ten and twenty percent. Q Is that in your notes? THE COURT: Excuse me a minute. Go ahead. BY MR. OSTROWSKI: Q Is that in your notes? A No. Q Are any of these percentages of code similarity in your notes? A No. Q You're formulating those numbers as you sit on the witness stand? A As I look at the exhibits, yes. Q As you look at the exhibits on the witness stand? A Yes. Q And did you compare the functionality of execute in 50 and display file with manipulation window in 48? A Yes. Q And are they substantially similar in function? A Yes. Q Does 48 do anything that 50 does not? A No, they're all there. THE COURT: Excuse me? THE WITNESS: No, they are all there. The things that 50 does, they're also included in No. 48. THE COURT: But the question was vice versa on that. Is there anything in 48 that's not in 50? THE WITNESS: Yes. BY MR. OSTROWSKI: Q What? A The show a picture, the format a floppy. Q Same things as in 49 that were new? A Yes. Q But all of the functions that are in 50 are replicated in 49? A Yes. Q And is it your - - is it your opinion that any competent programmer sitting down to write a program like execute would come up with basically the same functions? A For a file retrieval system? Q Yes. A I believe so. Q You believe so? A Yes. Q How many file - - How many CD-ROM file retrieval programs have you looked at? A Four. Q Ever? A Four. Q Okay. So you're not really an expert in CD-ROM file retrieval programs? A Typically I never see the source. All I see is the executable form of it. Q Right, what any Joe Blow sees when he buys a computer and buys a CD-ROM? A Would he see the source? Absolutely not. Q No, I'm asking you the thing that you have seen prior to this trial is what any user would see? A Yes. Q And that's the, in large part, the basis for your expertise on CD-ROM file retrieval systems? A Yes. Q Okay, let's go to the next module, which is unzipit, and my question is, is there anything similar to 50's unzipit in 49? A Yes, it's on sheet No. 36 of Exhibit 49. Q What's it called? A In Exhibit No. 49, it's called unzip file. Q And did you compare the source codes between 49 and 50? A Yes. Q Can you quantify the degree of similarity in source codes? A Again, there is that approximate 20 to 30 percent. Q Is that in your notes? A No. Q Did you compare the functionality between the two programs? A Yes. Q Are they substantially similar? A Yes. Q Is there anything new in 49 that's not in 50? A No. Q Okay, skipping to 48, is there a similar module in 48 to unzipit in 50? A Yes, it's located on page - - excuse me, sheet 61. THE COURT: Of 48? THE WITNESS: Correct. BY MR. OSTROWSKI: Q What's it called? A Unzip file. THE COURT: Is that - - I can't understand, is that plural or singular, files or file? THE WITNESS: Unzip, underscore, F-I-L-E. THE COURT: Thank you. BY MR. OSTROWSKI: Q Did you compare the source code between 48 and 50? A Yes. Q And is there a degree of similarity? A In that they do the same thing? Q No, in the actual literal source codes? A There is some similarity, yes. Q Can you quantify the degree of similarity? A Exhibit No. 48 is very similar to Exhibit No. 49. Consequently, it's going to be the same percentage, approximately 20 to 30 percent. THE COURT: Twenty to 30 percent is quote, very, unquote? THE WITNESS: Is similar. BY MR. OSTROWSKI: Q And what about the functionality? A They appear to be the same. Q Is there anything new on 48 that's not in 50? A Just cosmetic. The functionality is still pretty close. One clears the screen, one does not. Q Now I believe you stated that you've only seen four CD- ROM file retrieval program source codes in your entire life? A Yes. Q Okay. If you were sitting down to - - Well, what is your - - Do you have any familiarity with how the file retrieval on 48 works in terms of operating a CD-ROM? A Yes. Q And what is that based on? Did you actually - - I'm talking about this case. Did you actually get some information from Mr. Graham about which CD has it on it and operate it? A No. What I actually - - I have both the source and the executable code for Exhibit No. 50, Exhibit 49, 48. I put each one of these executable codes into the computer and observed it functioning. I watched the drive light to see when it was and when it was not accessing the drive, and then I also looked at the files that it brought in and displayed on the screen for the user to select from. Q Okay. If you were sitting down to write a program like 48 or exactly like 48, would it help if you were supplied with Plaintiff's 50 as opposed to starting from absolute zero? A The source code or the executable code? Q Well, when you say executable code, is that something that you can read? A Typically not, no. Q Well, is it ever anything you can read? A If it's been disassembled or reverse engineered, yes. Q Reverse engineered into something that's not an executable code? A Correct. Q So, what I'm asking you is it's correct that you can never read and executable code? A Not directly, no. Q I mean I assume some mathematical genius could look at it and know what it says, but most of us humans cannot, correct? A Correct. Q Okay. Would it help if you were setting out to create a program like 48, which you've seen, to be supplied with the source code of 50 or - - well, strike - - instead of simply starting from scratch with nothing? A In some instances, no. In other instances, yes. It depends upon the quality of the source code. Q Okay. And the quality of the source code in 48 is high, right? A Forty-eight? It's almost a work of art. I would love my students to turn in something this great. Q Okay. But with the modules that you've so far compared, the work that 48 accomplishes is almost exactly like the work that 50 accomplishes? A What it does, yes. How it does it, no. Q When you say what it does, are you referring to what it does for the consumer, the user of a computer? A Yes. Q They're similar? A Yes. Q Okay. Wouldn't it be a great help to somebody, you, for example, who is setting out to write something like 48, to be supplied with a copy of 50 source codes? A In some cases, no. In some cases, yes. Q Well, that's not an answer to my question. Would it be a great help, yes or no? A In this instance of Exhibit No. 50, no. Q It would not be a great help? A No. Q Would it be any help at all? A Maybe. Q Maybe, depending on what variables? A Depending upon what the employer or the work for hire person wanted. Q Well, what they want is 48, I think it's part of my question. Given that what they want is something that is 48 or exactly like it or similar to it, you're saying it would not be helpful to be supplied with a copy of 50? A I'm not going to say it wouldn't be helpful, no, I won't say that. Q So, you're saying that it would be helpful? A It could be helpful if the person chose to use it, yes. THE COURT: Is it helpful as a model or helpful as indicating certain things which ought not to be followed, sort of Edisonian or what? THE WITNESS: When I write programs, Your Honor, I ask the person what do they want to appear on a screen and how do they want it to appear on the screen, regardless of the work that other people have done. If they ask me to take this code and modify it so it does this additional feature, I do that. However, it's very difficult to fault someone else's logic, someone else's reasoning on how they're doing these things. I spent almost four hours looking over one of these modules trying to find all the aspects of what that one module does. If you had said, Steve, can you write a brand new one from scratch that does A, B, C, D, E, the answer is yes, I could have written that same module in four hours from scratch, and I would have understood it better; and if I ever had to work on that program later, being my code, I understand how I do things. THE COURT: You would build it up brick by brick? THE WITNESS: Absolutely, and I would know the foundation that I had underneath and why I had this this way and why I had that that way, not looking into the underpinnings of how another person had done it. So, in some instances, if it's well-written code, it can be a help. In some instances where the code is very difficult to follow, it's just better, more efficient to write the darn thing from scratch. BY MR. OSTROWSKI: Q You spent four hours looking at a module? A Yes. Q Which module? In 50? A It was the DIR module. Q In 50? A Yes. Q Is it fair to say that it took you four hours because it's a very complex piece of work? A Yes, it is. Q Okay. Now, when you say that it may or may not be helpful to see 50 in reproducing - - in producing a program like 48, are you talking about your perspective as a computer scientist? A In my perspective as I contract to program for hire. When I write programs for people, like I was telling the judge, I ask them what they want up front. Do you want what you have, or do you want something different? Many times they tell me we have our people trained in a certain way. We want to keep it pretty much the way it is. We don't want to change the way the secretaries enter checks coming in. We do not want to change how our invoices are printed. We've got 50,000 in stock. We want to use up the paper. Keep the look of it the same, Steve, so I do. Q And under those assumptions then, it would be very helpful to see 50 before you set out to do the work of 48? A Not necessarily, no. Q Not even under those assumptions? A No, not necessarily. Q Okay. Okay, let's go to the next module, which I think is DOS, D-O-S-C-M-D. THE COURT: DOS what? MR. OSTROWSKI: D-O-S-C-M-D. BY MR. OSTROWSKI: Q Are those the initials? A Correct. Q What does that stand for, basically? A My first guess was it allowed the person to enter in a DOS command from within the program. Q What does DOS stand for, by the way? Is that an acronym? A Yes. Q What does that stand for? A Disk Operating System. Q Okay. And did you find any similar module in 49? THE COURT: Wait a minute, you got something about a DOS CMD without saying where you were or what kind, what exhibit? MR. OSTROWSKI: There is a DOS CMD on Plaintiff's 50, correct? THE WITNESS: Yes. THE COURT: Is that what you started with? MR. OSTROWSKI: Yes. THE COURT: All right. THE WITNESS: It's found on sheet No. 33. BY MR. OSTROWSKI: Q And is there a similar module in 49? A Yes. Q Did you compare the - - And what's that called and where is it located? A It's located on sheet 56 of Exhibit No. 49. Q And what is it called? A D-O-S, underscored, C-O-M-M-A-N-D. Q Did you compare the source codes between those two modules? A Yes. Q Is there - - Can you quantify the degree of similarity, if there is one? A About ten percent. THE COURT: Ten? THE WITNESS: Ten percent. BY MR. OSTROWSKI: Q And did you compare the functionality between the two modules? A Yes. Q Are they substantially similar? A Yes. Q Is there anything new on 49 that is not in 50? A Yes. Q What? A In Exhibit No. 49, there are additional checks to see whether a return value from a previous module indicated that it was a picture file. Q Anything else new, functionally speaking? A Cosmetic; one clears the screen before returning, the other doesn't. They work essentially the same. Q Okay. Is there any module in 48 which is similar to DOS CMD in 50? A Yes. Q And where is that located and what is it called? A It's located on sheet No. 98. Q What is it called? A DOS, underscore, C-O-M-M-A-N-D. Q Now you stated that you did see these programs operate in some sense - - A Yes. Q - - on your computer, and that's what the, your customers care about, the bottom line, how it works? A Correct. Q Okay. So if they ask you to do - - If they asked you to do what DOS command, D-O-S-C-M-D does and you had a copy of 50 and you ran that command and you saw what it did, then your work would essentially be done, that was similar to the work you were asked to do? A I'm not sure I understand the question. Q Well, what does D-O-S-C-M-D do? A It allows the user to type in one of sixty or seventy DOS commands, suspend the file retrieval program, allow the computer to do one of these fifty, sixty, seventy programs, and when it's done, come back right into the file retrieval program. Q Okay. And if that's what the customer wanted you to do and you ran that module in 50 and saw that it did that, you wouldn't have to go back and do any thinking or re-writing any code, would you? You would just take that and then go onto the next thing and you'd be done a lot faster, right? A Yes. Q And anytime that 50 had a function on it that accomplished the same work as the one your customer was asking you to do, it would be the same thing, right? You'd check that out to see how it worked, and then you'd say okay, I don't have to do that, I'll go onto the next one. That source code is done, right? A I'm not sure you understand the function of this particular module. Q Well, what I'm asking you is isn't it true that you could take any, any module in 50 and compare it to any module in 50, see what it does when it's actually working, compare that to what your customer wants, and if that's what your customer wants, you can just check that off, copy in the source code, 'cause that's done and go onto the next thing, right? A Could a person do that? Yes, they could. It would be highly illegal to do so. THE COURT: Highly what? THE WITNESS: Illegal to do so. MR. OSTROWSKI: Exactly. THE COURT: Is that a question? MR. OSTROWSKI; No, it's an exclamation point. BY MR. OSTROWSKI: Q Okay. We're at - - We're looking at 48's DOS command. Are there any similar source codes in there to, that compare to the 50 DOS CMD? A They function similarly, 48 and 50. Q Is there anything new in 50 that's not in - - I'm sorry, is there anything new in 48 that's not in 50? A Again, Exhibit 48 is very similar to No. 49. Exhibit No. 48 also had those additional checks to look at the return values from other modules to see if pictures were going to be viewed. Q So, is it fair to say that every discrete function of 50 also appears in 48? A Yes. Q But then there's a couple extra cosmetic things? A Not cosmetic in this case. Q Well, one of - - I'm sorry, one is cosmetic and one isn't, of the new ones? A There are three checks to view whether a picture had been selected from a previous selection menu, and if a picture had, indeed, been selected, it takes the appropriate action. Q That's a substantial change, right? A Yes. Q Or addition, I should say? A Yes. Q And then there's a cosmetic change dealing with the - - A Yes. Q - - clearing of the screen? A But that does not affect the functionality of the module. MR. OSTROWSKI: Okay. I have no further questions. THE COURT: Take a brief recess. (12:05 p.m., recess.) (12:15 p.m., resume.) THE COURT: Oh, you finished your cross examination, Mr. Ostrowski? MR. OSTROWSKI: Yes, Your Honor. THE COURT: Okay. REDIRECT EXAMINATION BY MR. KITCHEN: Q Professor Brown, you were asked during much of this extended cross examination for a quantification on this similarity business, and you indicated that you had nothing in your notes. Is there any reason you didn't actually put these quantification figures in your notes? A Yes. Q What was that reason? A When I compared the modules side by side, I take a look to see how this person cleared the screen. There's one way that I know efficiently to clear the screen. Clearing the screen is the same in both modules, so that counts towards that ten, twenty percent, and when they clear the screen upon exit, it's C-L-R-S-C-R to clear the screen again. So, again, it's the same thing to cause the same action to occur. Then I look at the second line to see whether they are the same or different, and also the approach of them. Q Well now, since you brought up the idea of clear screen, can you tell us, when the - - by whatever means the computer is told to clear the screen, can you tell us what the computer does to clear it? A Puts blanks of the now selected color on all 80 by 25 rows. The screen is a matrix, eighty columns wide by 25 rows up and down, multiply 80 times 25. What's that work out to be, 2,000 locations on the screen. When you clear the screen, it puts a blank space in each one of those 2,000 locations at computer speeds. Q And when you say at computer speeds, is it - - What does it appear to the user when the screen is cleared? A It appears instantaneous. However, we have done some high speed filming where we've taken maybe two or 3,000 frames per second, displayed it on the screen, slowed it down and we could just catch part of it. It was that fast. Q Well, can - - In using the C programming language, can you tell the computer to go up to position one and put a blank there and then go to position two and put a blank there and then go to position three and put a blank there, I think you get the idea, and do that for all 2,000 places on that screen? A Yes, and I could probably name five or six different ways, but all those ways are terribly inefficient. I wouldn't use them. Q Well, when you just put in your C programming language, the words clear screen, and that source code then is compiled, is it eventually end up in some sort of executable file that's going to tell the computer to put a blank in the, put a blank in space one and put a blank in space two, is that what it does? A Yes. MR. OSTROWSKI: Objection to a leading question. THE COURT: It's not leading. BY MR. KITCHEN: Q If one computer programmer used the very efficient means of putting in clear screen, would it be, in your opinion, would it be some sort of improper copying or plagiarism for another programmer to use the same device? A No. Q Now, getting back to this idea of quantification, though, this idea of this is ten percent similarity, twenty percent similarity, that sort of thing, are there, are there standards in the computer programming field that dictate similarity in terms of percentage quantification? A Not that I'm aware of. He asked me to look at these two modules and - - MR. OSTROWSKI: Objection to not responsive. THE COURT: Yes, just be responsive. THE WITNESS: Okay. BY MR. KITCHEN: Q Okay. Then how is it that you were able to come up with these quantified numbers? A I looked at the modules side by side, compared his first instruction with an instruction with the other - - I looked at Exhibit No. 50, a particular module, I looked at that module that did exactly the same thing or similar to it in Exhibit No. 49, looked at the first instruction in Exhibit 50, and compared it to the instructions that appeared in the appropriate area in Exhibit 49 and looked to see whether they were the same or whether they were different. Then I went on to instruction two and - - from Exhibit 50, and compared that to Exhibit No. 49. Not only comparing the instruction, the instruction itself, but the strategy involved to see whether the person approached it the same way. There are efficient ways to make multiple comparisons, and there are inefficient ways to make multiple comparisons, and I kept this in mind in trying to give my best estimate as to how much was the same or how much was different. Q Well, is the figures that you finally gave to Mr. Ostrowski in response to his questions, these things like ten percent or twenty percent, were they arrived at by some precise calculation or were they arrived at by just kind of looking at them and saying looks like ten percent or something like that? A I counted the number of lines in the module. Then I went back to number one, like I told you before, and compared the first line with maybe the first or second or third or fourth. They may be in different order, but the intent to clear the screen or to print a message on the screen is there, whether it's second or fifth or seventh, it's there, and what I tried to do was to give an approximate fractional part converted to a percentage of parts that were the same. In one particular case, I asked whether I should include or not include D-O-S, S-E-A-R-C-H, whether I should include those or not because if I were to include those, I'd have to count one more that didn't match in my estimation of the percentages because they were very similar. Q Now, in response to later questions in which you were asked how many CD-ROM file retrieval programs, you indicated that you had actually seen four of them? A Yes, I had only seen the source code on four. Q And - - But early on in the cross examination, you were asked whether you were acquainted with file retrieval programs in general and you said that you, I think, given quite a different response? A Yes, that's generally what I do. I extract data from either floppy drives or hard drives and now that CD's are becoming available, I extract data off of them both total files as well as sub-parts of files. Q Well, what are file retrieval programs used for, other than retrieving files from CD-ROM disks? A I can think of two main purposes, number one to retrieve files that you absolutely do know the name of or have some inkling where to find it, and I see a more powerful one being a search capability, saying I don't know where it is on that massive disk, but I know I'm looking for certain key words, and I should be able to interact with this program to say I want to look for football statistics. THE COURT: Like any other indexing problem, isn't it? THE WITNESS: Exactly, Your Honor. BY MR. KITCHEN: Q Well then were there file retrieval programs before there were CD-ROMs? A There have been file retrieval programs since about 1951. Q And have file retrieval programs since 1951, have they, have they changed markedly in terms of structure or design? A Structure, no. They still do what they did forty years ago. However, due to increases in technology, they now have devices available to assist you that were never available before. Q Of all the file retrieval programs that you have either written or worked with or seen, do they have any kind of common elements in their design? A Yes. Q Could you just off the top of your head kind of outline for us what the basic common elements found in virtually ever file retrieval program there are, if there are some? A As Your Honor pointed out, it's an indexing system. It lists the categories or titles that are available for searching. It would be crazy if you had a disk that had sports statistics on it to try to look up populations of foreign countries. So there's going to have to be some kind of indexing of topics that are available and also the display of these topics that are available to the user. So, when the opening screen comes up, there's some kind of announcement that this file retrieval system permits you to explore data or topics in these narrow field of topics. Q All right. Then any other elements common to a file retrieval system, what else does it do? A The ones that I'm familiar with also allow you, once you've selected a topic and you've found it, to take your results and either put it on the screen, number one, onto a line printer, if one happens to be attached, number two, or, number three, to take this extracted data or file and put it on a floppy disk that you can take with you. Q In other words, once you found something now what are you going to do with it kind of thing? A Yes. Q One of the modules that you happened to look at was a thing called the goodbye module? A Yes. Q Is the goodbye module, whether it has that name or not, is that common to file retrieval systems? A Most programs upon termination let the users know that the program is now terminated. For example, there are some programs when you're done the screen goes blank, you return to the C prompt and that's it. You're left guessing, am I out? Did I accidentally press the shell key and I've got to type exit to get back in? Is this program still in memory? Can I get it back? However, if there was some kind of confirmation at the end that you were, indeed, done, the program has terminated, you are now returned to what's called the command line, I just think that speaks highly of whatever program it's used on. Q Is this somewhat akin to having a telephone conversation, the difference between somebody saying goodbye and click versus being disconnected? A Yes. It is, again, a confirmation that the program has, indeed, ended normally. It wasn't an aberration. Q You indicated that there were about, let me see, how many modules did you say were in Plaintiff's Exhibit 50? A Forty-eight, I believe. Q Okay. Were you able to identify the use for each one of those modules? A No way. I went to the first one, this DIR one, that was the one I spent four hours on. Q Uh-huh. A I go oh my God, there's 48 modules here times four hours. That's 160 hours. I can't do that. Q Well, in actual fact, you could do that, but it would require - - A A month. Q Is it true that in analyzing one module - - Well, are the modules in isolation or do they relate to other modules? A I don't understand. Q Well, in other words, if you were analyzing one module, does that carry you into or involve you into looking at the other modules? A Yes, that's what took the time. Q Oh. So, in fact, in looking at one module, say DIR, you, in fact, looked at other modules as well? A I think twelve. Q Did you also look at the main module? A Yes. Q Did you find any modules that had no apparent use? A Yes. Q What modules were those? A There was a module called N-E-W-E-N-V - - Q Uh-huh. A - - that I didn't see used. That doesn't mean that it wasn't used. I just didn't see it used. Q Is it possible that a programmer could actually include a module in his source code that the program would actually never utilize? A Yes. Q Now, do you ever give assignments to your students that involve just simply writing programs such as a file retrieval program from scratch? A Not that sophisticated. Q Uh-huh. A But I've given students assignments where they have to extract data off a hard drive and print me out a report of data that match certain criterion that I specify. Q So, it would be on a somewhat smaller scale than a regular file retrieval program? A Yes. Q And on those occasions, would you expect these students, based on the knowledge and training that you've given them to be able to do this from scratch? A Absolutely. They have to. Q So you wouldn't give them another program to copy or work from? A I would show them bits and pieces in a classroom lecture. They are also free to consult their textbook for similar kinds of examples where you open a file, where you read the first line of data, where you look at the data to see whether it's what you want, if so, process it. If not, go back and look at the second line. However, what I will do is I will change the actual assignment so that in order to guarantee that I - - that they understand what they're doing, I will particularly change either the file length or where it's going to be found, or I'll throw some monkey wrench into or just to make sure that they haven't lifted it out of the textbook or just made a minor modification to something that we have done in class. Q When you - - When you give an assignment for the writing of a program, do the students like hand in their source code and that sort of thing? A Yes, they hand in both their source code and the output. Q How many students do you have at one time? A It varies anywhere from a low of eleven up to thirty- five. Q So you're looking at a lot of source code and executable files? A Yes. Q When you've given the same assignment, the same end result you've requested, to what extent do you expect similarity in the source code that's turned in by your students? A In some instances, there is one and only one way to open a file for access. I expect those modules to be identical from student to student to student. However, when it comes time for the actual processing, how did you check to see if this is the data that you wanted and what did you do with it first, second and third. That will vary from student to student. Even then, sometimes students will independently come up with the same approach and essentially use the same logic, different words but use the same logic in going from point A to point B. Q I take it if one student simply copies his friend's homework and tries to hand that in that that doesn't meet your academic standards? A Absolutely not. That's grounds for expulsion. Q Do you happen to know approximately how many modules there are in the other two programs, 48 and 49? A I stopped at a hundred. MR. OSTROWSKI: Which exhibit? MR. KITCHEN: Either one or the other. MR. OSTROWSKI: I don't know what he - - THE WITNESS: Exhibit No. 48 was the one that I was going to do, but it - - I looked at it and I just kept a manual count as to how many modules there were to check when I was thinking about coming back in November or December just to gauge myself to see how many there were, and I believe there was close to a hundred or one exceeded a hundred and one was close to a hundred. BY MR. KITCHEN: Q Now, in the DIR module, you had indicated that there was a new feature that involved this up and down and left and right arrows which allowed a person to select a particular category or name or something, was that something you had noted, I think in the comparison of 48 and 50? A Yes. Q Did you indicate that you had not seen that applied to a file retrieval system before? A Not of that vintage, no. It's very commonplace today. Q Now, of that vintage, what are we talking about in terms of vintage? What was your impression as to when this was done? A I don't know exactly when this was done. I can't testify to that. I can only testify as to the chronology of night owl CD-ROMs. Q Oh. A I would have to go back and see when this first appeared, what number it first appeared on, check the copyright to find out when that did appear. However, it's been around for several of them. It's not something new to ten or nine or eight or seven. I looked at those. They all have that feature. Q Well, maybe I want to get some grasp of this idea of vintage. You say they're quite common now. How far back are you going to say that that kind of feature in a file retrieval program is fairly common, you going back a few months, you going back a few years, what? A The - - Are you referring to the up/down or the mouse? Q The up/down. A The up/down file retrieval programs have probably been around, I can just go on my experiences, I've seen them in file retrieval program as early as 1986, 1985. Q Okay. A However, on these CD-ROMs, I haven't seen them since, the earliest that I can recall seeing them is 1991. So, it's a matter of a few years, not a few months. They've been around for a few years on CD-ROMs. Q And you mentioned a mouse. And, by the way, can you tell us just briefly what is a mouse? A A mouse is a pointing device. It's held in either the left or right hand that as you move left, some kind of pointer or some kind of action on the screen occurs on the left. As you move it right, it moves right. Typically, you either have a pointer or a highlight area on the screen. Once you have the pointer positioned to your desired option, there are two buttons. Typically most people are right handed, so you press the left button, and that will signal the computer that that is what you want rather than typing in a six or a twenty-two or thirty-seven. You just move your mouse to the pointer on top of the 22 or the highlight on top of 22 if they're numbered and just click the button. Q Now, is a mouse usable any place that a keyboard would be usable on any kind of program? A The computer has to have the appropriate equipment as well as the software to make use of a mouse. Q A mouse is fairly common? A Yes. Q And is there anything special that has to be done in writing a program if the writer of the program anticipates or wants a mouse to be useful to him? A Yes. Q What do you have to do that's different? A When you are looking for the user to input either from the keyboard or from the mouse, you have to instruct the computer to sense whether the mouse has been moved, and if the mouse has been moved, in what direction and what are its current coordinates on the screen. Linking up the current coordinates of the mouse on the screen with the option that is lying below it on the screen, not taking any action until the left mouse button is clicked to confirm that that's what the user wanted to do. It wasn't an accidental bump of the mouse. Q I think when you testified before, you indicated anytime somebody pressed a key on the keyboard that it placed a character, whatever you pressed, into an area of memory called a keyboard buffer, correct? A Correct. Q Does a mouse kind of work the same way? A No. Q So there's not a mouse buffer with the latest position or that sort of thing on it? A Usually when you attach a mouse to a computer, you also put in a program called M-O-U-S-E that makes the mouse work. What that does is it tells the interrupt driver that if something is moved on the mouse, I moved, and it's up to the program to take into account whether to service that interrupt or not. If a program is not mousable, as we call it, then it just says, well, too bad, we're not going to take care of that. But if it is mousable, a program would have to take into account that interrupt that some action occurred, should I service it, should I take care of it or not. Q All right. Does the program that had the source code of Exhibit 50, does that take a mouse? A Not that I'm aware of. I actually ran the program with a mouse, clicked the mouse, moved the mouse, pressed it both times. I could get no response from that program. Q Did the programs in 48 and 49, did they involve the use of a mouse or can they? A Yes. As you would - - As a user would expect, as you use the mouse up, the highlight bar moves up. As you move the mouse left, the highlight bar moves left. Once you have an object that you want executed, you click on it. It works as it should. Q Now, also in the DIR module, you had indicated a feature - - well, not so much a feature but an approach I think you used as was your term, and you said that in some respects, 48 actually did less and 50 kind of did more and re-read certain things. Could you tell us again what this, what the difference was? A On the CD-ROM, there is a file that keeps track of all the categories that are on that CD-ROM. Q Is that the, is that the DIR file? A I can't be sure. I'd have to take a look at some previous exhibits that you have. Q Oh. I only say that because there was, been some previous testimony from others about it, but go ahead. A If you want me to look at the exhibits, I will, and I can tell you exactly what it is. Q No, but what is on it, in any event? A In that particular file, it lists each category that's available on the CD-ROM. So if you read just one file, you can find out exactly what's on that CD-ROM. Q Those are categories like communication, education, word processing, those things? A Exactly. Q All right. A So going one place, you can get it all, what's available. In the DIR program on Exhibit No. 50, when it came time to put the categories on a screen as it had to, it would go to that file, read that file and display them on the screen, as well it should. When it left the main menu, as we call it, and went to do something else, whether it was a DOS command extract a file or whatever, when it came back, it went back to that same file and read it again and displayed it on the screen. Nothing wrong with that other than it's redundant. It really didn't have to be done that way, but it was one approach to getting the job done. When I examined that same module that read the directory in both exhibits, No. 48 and 49, the authors of this exhibit chose a different approach but achieved the same result. They read the file from whatever it's called, but they stored that data into an array, stored it inside the computer so it would not have to be read a second, a third, a fourth time. I found that to be particularly efficient in that when you left the main menu, went to do an extract or DOS program and came back, it was there. It didn't have to spend time getting the data from the file a second or a third time. It was just - - They did exactly the same thing. It was just a different approach to do it. Q Can you tell us what a string literal is? A A string literal is a sequence of characters. They can be anything. They can be like Steven Brown. They can be 123 Main Street. They can be Erie, PA. They can be absolutely anything. Enclosed inside quote marks that when encountered the computer will take that literally, what you see is what you get. So when you have a string literal, whatever you want to do with it, the computer takes it exactly as you typed it in. That's what the literal means. But it's characters. You cannot do mathematics with it. Q Well, would that include any of the messages that appear on the screen in kind of plain English when you're operating the program? A Yes. Q Could that be differentiated from, let's say, the category names themselves? Were those string literals? A The category names themselves were not string literals. They were data stored on a disk that was retrieved into the computer and stored as a string variable to be displayed on the screen. Q So we see a screen with English words on it. Some of the English words may be string literals from the operating program itself, and others may be data that have been pulled from a separate file? A I would expect to see a combination, yes. Q Although it's not necessarily readily apparent to somebody looking at a - - THE COURT: Who's testifying? MR. KITCHEN: I'm sorry, Your Honor. BY MR. KITCHEN: Q Well, would it be, would it be literally - - Well, would it be readily apparent to any user to sees a screen with some English words on it as to whether the words are string literals from the application program or whether they are data from some place else? A I couldn't tell sometimes. So, no, it would not be apparent to a user. Q Are you acquainted with the term G-I-F file or GIF file? A Yes. Q What is it? A Typically files have two parts that are named. The first part is called the file name, which is some kind of general description, and then the second part of the name, which is called the extension, attempts to identify a little bit about that file. For example, I have a program, I have a data file called P-A-Y-R-O-L-L.D-A-T. It contains payroll data. Now this file that you mentioned, G-I-F, this stands for a picture file, something that has either been digitized or has graphically been rendered on a computer and saved to a disk. So G-I-F is a, some kind of a graphics or a picture file. Q And, by the way, since you mentioned this idea of extensions, we'd been dealing with a number of these programs that had extensions E-X-E. What is that one? A E-X-E typically - - There's no rule that says an executable file has to end in E-X-E, but most do. That's over 99 percent of executable files end in either E-X-E or C- O-M, depending upon where they're executed in the computer's memory. Q Well, back to the G-I-F files, how does one get to look at this? If the G-I-F file is a picture, how does one get to look at the picture? A It's not really a picture. It's a series of codes that indicate what pixel of light to turn on and what color to turn it on to. Again, your screen is a very large matrix and most of the G-I-F's that I'm familiar with, the older ones were 320 points of light across by 200 points of light up and down, 60,000 points of light on that screen, and in this G-I- F file would be the location of the point of light to turn on and what color to turn it on to. In order to actually see any kind of picture, you need a translation program, a viewer as they're called, that will take those codes in, turn the appropriate points of light on the screen and to the appropriate color. Q And, by the way, you previously described the screen consisting of a matrix 80 columns wide by 25 rows down. Now you're saying it's got 60,000 - - THE COURT: Not squares, points of light. BY MR. KITCHEN: Q Points of light. A Yes. Q Is there - - Are we - - Are we saying that there's a, in one sense, there's one kind of matrix, another sense another kind of matrix? A There are several screens that are available on the computer. The 80 by 25 is called the text screen. Now, each one of those squares, and I did not say point of light, each one of those squares - - THE COURT: You did say that but you didn't mean it. THE WITNESS: No, I believe squares was the correct term. I could be wrong. But anyway - - THE COURT: What did you say? Squares? THE WITNESS: Squares or blocks. Each one of those blocks is made up of eight points of light horizontally and maybe twelve points of light vertically. THE COURT: So we do come back to points of light? THE WITNESS: Yes. So on a text screen, you have 80 rows of blocks and there's 25 rows, but each one of those blocks is made up of tiny points of light. If you've ever looked at a scoreboard where they have the numbers or the time, it's not a fluid number. It's not continuous. You can actually see the little points of light that make up the number. That would be a pixel. BY MR. KITCHEN: Q So when we put in text, we're putting in a block at a time? A Correct. Q But when we're drawing, making a picture, we do it with little points of light? A Correct. Q And does it take a particular kind of program to be able to turn one of the GIF files into a picture? A Yes. Q What do we call those kind of programs? A We call them viewing programs. Q Viewing programs. A Or viewers viewing programs. Q Now, what did 48 or 49 do with respect to these GIF files that 50 could not do, if that's the case? A I'm not saying that 50 couldn't do. I didn't examine the total program to see if, indeed, there was a viewing portion in it. You will have to either check with the author or have me come back again sometime to look for that particular one. But the Exhibit No. 48 and Exhibit No. 49 did allow you to view a picture by pressing the appropriate letter and then going some place else and getting the viewing program so that you could actually see it to see if do I want to get this one, why should I take it off the disk if it's no good or the quality's poor or maybe it is really good. I want to take it off the disk and put it on my floppy. So you might want to try before you buy, so to speak. Q Did you notice in any part of 48 or 49 a feature which allowed the user to print out or send to a printer any particular file or portion of a file, that sort of thing? A I don't have it in my notes, so no, I can't testify to that. I don't have it here. I could look if you'd like me to. Q And by the way, to determine whether or not a program does something, is it necessary to look at the source code or analyze the source code to do that? A You could always run the program. Q Okay. A And see whether it comes up on the screen and if it does, try it. And if it works, by golly, it was in there. If it doesn't appear on the screen, maybe it was in there, but just not invoked. Q If you were asked to write a file retrieval program for a CD-ROM and you were given just a general verbal, oral description of gee, Professor, this is what I would like it to do, okay, and this is kind of how I want it, could you, could you write a CD-ROM file retrieval program for that? MR. KITCHEN: Are we on fire, Your Honor? THE WITNESS: I'm sorry, I got distracted. MR. KITCHEN: Oh, okay. The witness is a teacher, Your Honor, and he probably figures class is over. THE WITNESS: No. THE COURT: It should be. MR. KITCHEN: Yes, indeed. BY MR. KITCHEN: A Okay. Professor Brown, if you were just given an oral order or request for somebody, could you write a file retrieval program with a CD-ROM? I'd like it to do a number of things, list some categories, allow me to pull up files and do various things, and I'd like to be able to format a floppy here and there, and I'd like to maybe print something out occasionally, and I'd like to view picture files, if possible. What's - - Is that a task you could take on as a programmer? A Yes. Q And if you did take a task on like that, how long, how big a project are we talking about? A Depending upon - - THE COURT: Until done. THE WITNESS: Depending upon how many options that the employer wanted, I would think with my background, I could probably have it done within 40 to 60 working hours, but I would need additional information. Number one, the file structure is just critical to the operation of this whole thing. I couldn't even proceed without that. I would need to know what categories to include or what file are they located on the disk. I'd absolutely need those. After I knew what categories existed, I would have to find out what schema was used to - - THE COURT: Were you whistling in the hallway? We heard all kinds of whistles. BY MR. KITCHEN: Q I'm sorry, Professor, go ahead. A I would need to - - THE COURT: My apologies. THE WITNESS: Not a problem. I would need to know the structure of the files, where are the communication files on this disk. I can't retrieve something I don't know where they are. I would need to know where communications were, where the graphics were, where the basic were, where these GIF files that you talked about were. I would have to know the file structure before I could even proceed. BY MR. KITCHEN: Q So this ordering of your services would have to involve a bit of two-way communication between you and the person who was hiring you, right? A Sure. Plus I'd ask if he would have or she would have any examples of what they were considered good so that I could give them back something similar but written from scratch totally new. Q Okay. Would it help then if they said, well, gee, we have a retrieval program from before and we don't have the source code but we have a CD-ROM where it's on and we could show you what it looks like. Would that be a help? A It would be great help because I could see exactly how it was, and I could actually try some things right then and there without worrying about the mastering of a new CD-ROM and whether they did it right or whether they set up the files properly. I could actually test run my retrieval system on an existing data base. Q Would you then need, though, to have the source code for that original prior program? A We're getting in a sticky issue here. Q Why do you say it's a sticky issue? A When I write programs for my clients, I tell them up front, you're paying me for hire, this is yours. When I write that exact program for somebody else, I just can't copy what I did and give it to somebody else and get paid twice. That's unethical. I don't know whether it's illegal. That's for the courts to decide. I don't do that. I just won't re- use a program and put somebody else's name on it. Now, if the person that wanted me to work on his file retrieval system owned the code or had some kind of agreement that they owned the code, would I look at their source card? Probably yes to see how that author did it, and depending upon whether I agreed or disagreed with how that author did it, I might do something similar, or I might choose to do it totally different based upon my experiences. Q Well, you've had that opportunity, of course, to look at Exhibit 50 of an example of some prior code. How helpful would 50 be to you if you were in the position of having to come up with a new and improved file retrieval system that had all the features that you found on 48 and 49? A In this particular example, looking at Exhibit No. 50 as I have done in the past, it would not help me. I would choose to do it differently, and I would write it from scratch. I'd just say that program works, it does the job, but now I'm going to do it my way. MR. KITCHEN: I have no further questions. THE COURT: Anything, Mr. Ostrowski? MR. OSTROWSKI: Just a moment, Your Honor. RECROSS EXAMINATION BY MR. OSTROWSKI: Q Professor, you said it would be a great help to see this pre-existing CD-ROM operate? A Yes. Q Is that so that you could see how the file retrieval program works? A Yes, and ask the employer if that's what he or she wanted. In many cases, my toughest job is digging out from my client what in the heck do you want. I can't tell you how many times I've done something, I take it back to them, and they say, Steve, you did exactly what we wanted, but this isn't what we wanted. And then I - - Q If someone came to you and handed you a CD-ROM that had the file retrieval program, Plaintiff's Exhibit 50 on it, and asked you to operate that and replicate that and add a few more features, that would be quite helpful, wouldn't it? A Seeing the CD how it functions? Q Yeah, seeing the file retrieval function? A Yes. Q Okay. But you don't think it would be helpful to see the actual source codes of 50? A I couldn't make that determination until I looked at it. Q Well, you have looked at it. You have looked at 50. I'm asking you if that would not - - that's not helpful to you to see the source codes of 50 and it's not? A No. Q Is it more helpful to compare programs by looking at source codes or simply by using them as the consumer would use them? A It's a mixture of both, and it depends upon what it is that the employer wants. Sometimes I've been in a situation where I've been asked to change a program that already exists to do an additional feature, in which case I just go in and try to follow what the author left me figuring out as best I can what's happening here and make the adjustment that the employer is paying me for. Q Are you changing your prior testimony that you expect to be paid? A No. Q You do expect to be paid? MR. KITCHEN: I'll object to that, Your Honor. That is beyond the scope of recross - - or redirect. THE COURT: It is beyond the scope. MR. OSTROWSKI: No further questions. THE COURT: Nothing, Mr. Kitchen? MR. KITCHEN: No. THE COURT: All right. Let me get into this area that had been covered earlier. You're here, are you here pursuant to a subpoena? THE WITNESS: No. THE COURT: What impels you to be here as a witness? THE WITNESS: I've been a computer user for, since 1968. I've tried to keep up with all of the technical advances and I can't, and when these CD-ROMs came out, I just thought they were the greatest thing in the whole world; and I've been a very faithful fan of Night Owl Productions. THE COURT: In what way and for how long? THE WITNESS: Since about 1991, I've seen Night Owl, I think it was called Cars or something before, CD's available on the bulletin boards, and this was the first time that I had seen this massive amount of data, programs, anything I wanted. I was like a kid in a candy store trying to pick and choose, and I just thought it was really great. Then I found out that you could buy these things, and they were clunky at first, and we know about clunky. And they're getting better and better and better, and I bought a couple of the competitors. There's a local outfit in town called So Much Shareware. It's put out by Chuck Dearbeck. He's a nice enough guy, but it doesn't have the same quality. It doesn't have the same good reputation that Night Owl does. I never met Richard Graham prior to Tuesday. He called me on the telephone and he said that he had a problem, a legal problem, and that he had found out that I was a professor teaching programming at a university and would I testify in his behalf. THE COURT: And he also found out that you were an aficionado of Night Owl? THE WITNESS: Well, that helped. THE COURT: Did he, did he say he knew that? THE WITNESS: No, he did not know that. THE COURT: I see. THE WITNESS: Since then he does know that. THE COURT: Yeah. THE WITNESS: I purchase my Night Owl disks from whoever has the cheapest price, and you're not the cheapest. I go to the discounters, and I buy them because they're good quality. They have a reputation of having good, current, non-duplicatable stuff on them. THE COURT: All right. You're here then to be promotive of and protective of Night Owl? THE WITNESS: As far as it tells, as far as it means telling the truth, yes. THE COURT: Oh, sure. If it's true. THE WITNESS: Yes. THE COURT: I'm not indicating you're lying or anything like that. I just wanted to know about the whole impulse. One you said very clearly is your own practice and work you wouldn't copy anybody else's product at all. That would be unethical. THE WITNESS: People go to jail for that, Your Honor. THE COURT: Yes. Now, does that - - Is there something in this situation that seems to you to be unethical that you're here to squash and put down? THE WITNESS: I've asked myself that fifty times this past week, who copied what. It's clear to me - - THE COURT: Have you made a judgment on that? THE WITNESS: One black and white one, one gray one. THE COURT: Would you put those on the record for me? THE WITNESS: Exhibit No. 48 and 49 show close collaboration. Looking at the code, 90, 95 percent of the code is identical. You'd have to check to see who maintains the copyrights to these. It's apparent to me that No. 48 is a rework of No. 49. There's no question about it. It's a rework. If each one is claiming their own work, whoever had it first is the copyright holder and whoever did the second one copied it. THE COURT: Is this the black area? THE WITNESS: Yeah, that's black and white. THE COURT: All right. THE WITNESS: There's no question about it. THE COURT: Black and white. Now the gray? THE WITNESS: Two grays. Program No. 50 works. Program No. 49 works similarly. They do the same thing. Looking at the modules that cause each action to occur, it's my opinion they were done independently. Did No. 49 have access to what No. 48 did by viewing it on the screen? Yes. You could have that access by paying 29.95 down at the local computer store and seeing how it happens. That's the gray area. I do not feel that No. 49 or No. 49 copied lines from No. 50, did not copy. Do they accomplish the same goal? The answer is yes, but that's the design, to retrieve files, to view files. It's pretty clear to me that 48 and 49 were done independently of the source code of 50. Was 48 and 49 done independently of seeing No. 50 actually work on a computer, I don't know, Your Honor. THE COURT: Are you here to see, for example, to within the bounds of right is right and so forth, to see that, for example, that Mr. Graham and Night Owl are protected? THE WITNESS: If they have the first source code on it, absolutely. THE COURT: Yeah. THE WITNESS: And if not, that's the way it goes. THE COURT: All right. Had you known anything about Mr. James? THE WITNESS: Only that I saw his name at the top of the program. I've never met the gentleman. THE COURT: All right. I have nothing more. Thank you. THE COURT: All right. We're Tuesday morning, nine o'clock. Thank you. Sorry to bother you. THE WITNESS: Do I come back? THE COURT: No. Thank you very much. You'll want to leave some of your papers, I know, because certain things have been marked. You may not want to, but you may have to. THE WITNESS: That's all right. THE COURT: All right. (Hearing adjourned 1:10 p.m.) I N D E X Further Direct Cross Redirect Recross Redirect WITNESS FOR THE PLAINTIFF Stephen Brown 3 55 83 EXHIBITS: Marked Received