UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ------------------------------------ RICHARD E. GRAHAM, 91-CV-800 Plaintiff, Buffalo, New York -vs- November 23, 1993 LARRY E. JAMES, Defendant. ------------------------------------ TRIAL BEFORE THE HONORABLE JOHN T. ELFVIN UNITED STATES DISTRICT COURT JUDGE APPEARANCES: For the Plaintiff: DENIS A. KITCHEN, ESQ. 8340 Main Street Williamsville, New York 14221 For the Defendant: JAMES OSTROWSKI, ESQ. 384 Ellicott Square Building Buffalo, New York 14203 Court Recorder: JEANNE B. SCHULER Transcription Service: ASSOCIATED REPORTING SERVICE Lower Level One 120 Delaware Avenue Buffalo, New York 14202 716-856-2328 Proceedings recorded by electronic sound recording. Transcript produced by transcription service. P R O C E E D I N G S THE COURT: Yes Mr. KITCHEN. MR. KITCHEN: I guess we are ready to proceed. I understand from Mr. Ostrowski that Mr. James has gone to get the print-out of the program, the source cut I should say, for the program that was used on the Pier l disk, which was of course, requested the last time. And he was directed to bring it in. That's why we have Mr. Swanson back in the courtroom here because Mr. Swanson being my client's programmer would be able to actually make the comparison between the source codes and see if there's any similarity. MR. OSTROWSKI: He left about fifteen minutes ago, Your Honor, to go back to my office to - - THE COURT: He, Mr. James? MR. OSTROWSKI: Yes, Your Honor. To print it out. He should be back in a couple of minutes. THE COURT: Where is your office? MR. OSTROWSKI: It's just five minutes away, Ellicott Square Building. In the meantime I do have a motion-- THE COURT: Five minutes each way? MR. OSTROWSKI: Yes. I do have a motion that, perhaps, we could take up. THE COURT: Sure. MR. OSTROWSKI: Basically, Your Honor, I'd like to - - if I can find my particular rule that I'm working with. Well, pursuant to Rule 2l of the Rules of Civil Procedure and also, I believe, Rule l9, I'd like to make a motion to add the corporation as a party. Do you have anything that has the name of the corporation on it? THE COURT: What corporation? MR. OSTROWSKI: Just a second, Your Honor. I need the - - the testimony has been, Your Honor, that the Plaintiff originally filing as a d/b/a has transferred his business interest into corporate form under the name of Night Owl Publisher, Inc and my motion would be to add the corporation as a party. THE COURT: It's Night Owl Publishing or Publisher? MR. OSTROWSKI: I believe it's Night Owl Publisher, Inc. THE COURT: How are you going to add them as a party? MR. OSTROWSKI: Well, pursuant to Rule 2l, Your Honor, the Court - - THE COURT: As a Third Party Defendant? MR. OSTROWSKI: I've had some trouble figuring out exactly what to call them. I don't know if they're a third party defendant in the traditional sense that they are - - they have to pay whatever my client owes to the Plaintiff. I don't think they're that. But I do believe that in the interest of justice under Rule l9 they are an indispensable party to determining the rights between the Plaintiff and the Defendant. And he's simply turned into a corporation. And he has - - the evidence reflects that fact and Mr. Graham is the corporation. He's the president, he's the sole owner. He is - - THE COURT: You're going to leave him out individually? MR. OSTROWSKI: No. I think we should stay in individually, Your Honor, and - - THE COURT: Well, it's a very simple way. If you have any agreement on it, you may stipulate between yourself to add a party plaintiff, so you have Mr. Graham d/b/a/ and individually and Night Owl Publisher,Inc. That's if you agree. Otherwise you have to go through the forms and the steps. MR. KITCHEN: Well, I guess my misgivings about this, Your Honor, and I think it was Mr. Graham's intention to, essentially, incorporate his business, a business he'd carried on as a proprietor he incorporated. And I think - - THE COURT: I think during this whole period of activity or inactivity that it was Mr. Graham d/b/a. So your only problem is if you were able to fasten any liability upon the plaintiff, you want somebody that's going to respond and hears the corporation rather than Mr. Graham. That's your interest? MR. OSTROWSKI: Well, I'm also - - we're also making a claim for all the subsequent programs being similar that have been published in the name of the corporation. So, if I don't have the corporation on the hook then where am I with those - - MR. KITCHEN: That's what I have a problem with because the incorporating took place in August of l992. Certainly our position is by the time August of l992 came around and Mr. Graham's program that he used as a file retrieval system was so far removed from what had been previously the point of dispute between the Plaintiff and the Defendant here, that it really shouldn't be considered, you know, part of this lawsuit. I mean, I realize from Mr. James' standpoint that every similarity he notices between his program or what he alleges is his program and my client's program, even if it came out last week is regarded as a significant similarity which is obviously based on some sort of nefarious copying on the part of my client. THE COURT: Is that a tenable or substantive part of Mr. James' case? MR. OSTROWSKI: Yes, Your Honor. Mr. James, himself, yes. And Mr. Kitchen is arguing the merits of the potential lawsuit against the corporation and that's not - - THE COURT: Well, you have today, tomorrow, the next day, you have an ongoing claim against Graham and his d/b/a/ and the corporation for any infringement of or taking away of Mrs. James' rights. MR. OSTROWSKI: Yes, Your Honor. MR. KITCHEN: Well, actually, of course, I thought at one point in this litigation we had put a kind of theoretical line that had been drawn somewhere after NOPV, Version 9, I believe, or something, and I believe that was - - THE COURT: What do you have in your pleading that shows this ongoing damage? For example, you undoubtedly have some claim that if you're successful you want an accounting. MR. OSTROWSKI: Well, I do have a claim, a request, the Plaintiff be required to pay to Defendant such damages as Plaintiff - - THE COURT: Accounting. MR. OSTROWSKI: I'm sorry. I made - - well, I'm certainly asking for damages sustained as the result of the Plaintiff's infringement of Defendant's copyright and to account for, obviously, I took this from a former, perhaps Mr. Kitchen's complaint, all profits derived from the Plaintiff - - THE COURT: We don't have evidence on this but you may or may not want to answer. I assume you don't care. Is Mr. Graham the l00% owner of Night Owl Publisher, Inc.? MR. KITCHEN: Yes. He testified to that, Your Honor. MR. OSTROWSKI: Yes, I believe he did testify to that. THE COURT: It's really his alter-ego. So, why don't we bring it down to, if it comes to that, you would have a piercing of the veil as far as any liability here, if there be any ongoing after the incorporation. MR. OSTROWSKI: Well, I'm not a corporate lawyer, but if in fact he has maintained all the formalities of a corporation and if he's not, for example, taking money out of the corporate kitty for a family vacation or something like that, which I don't think he is, he may very well have an argument that they're separate legal entities. THE COURT: Not if we pierce the veil. MR. OSTROWSKI: Well, wouldn't that require a finding that he's - - THE COURT: That he and the corporation are really the same individual that's, basically, what we have here. MR. OSTROWSKI: I'm just trying to cover my tracks in the event that there's some flaw in that theory. THE COURT: However, you know, if you can't get some agreement on it then you have to figure out what to do as far as getting the corporate party into the lawsuit. And the only straightforward way of doing it is to, since you can't add party's plaintiff, is to bring in a third party defendant, the corporation. It's much easier if you can work it out the other way without admitting that there's any liability from and after August, l992 or on behalf of the corporation, you can certainly agree that if there is something that to the corporation, Mr. Graham would not assert the corporation shield to keep from paying any damages that might be owed. All right. Sobeit. MR. OSTROWSKI: Thank you, Your Honor. MR. KITCHEN: Your Honor, when Mr. Gentner called me yesterday I had indicated to him that I had a couple of matters on this morning. One, I was able to just get adjourned altogether, family court matter. But the other one is a matter in front of Judge Kane scheduled for l0:30, which is - - THE COURT: What? MR. KITCHEN: l0:30, Your Honor. THE COURT: Who? MR. KITCHEN: In front of Judge Kane. THE COURT: What type of a matter? MR. KITCHEN: It's an incompetency. It's our second appearance. And there's quite a cast of characters expected. So, I'm - - THE COURT: So you're on. And this is a one case coming on at that time? MR. KITCHEN: Yes, Your Honor. And I'm anticipating there's not going to be any testimony. It's simply going to be an appearance by people in acknowledgement of - - THE COURT: How long do you think it'll take? MR. KITCHEN: Perhaps a half an hour, Your Honor. THE COURT: All right. We can go forward and as soon as you see that you want to break, just raise your hand and off you go. MR. KITCHEN: Thank you. MR. OSTROWSKI: Your Honor, I do have Mr. James' print-out of the program that he gave to Mr. Armenia for use on his CD ROM. However, Mr. James, like Mr. Graham, is concerned about the confidentiality of his program and, basically, I would ask the Court to instruct the Plaintiff and his attorney and his expert witness not to disclose the contents of this program until such time as the Court may rule that this program is, in fact, similar to Mr. Graham's program, in fact, that Mr. Graham is the original author and owner of the program. THE COURT: Any problem with that, Mr. Kitchen? MR. KITCHEN: No, I really don't. In - - THE COURT: You can make full use of it in and for purposes of the trial, keeping it only onto thouself and until Mr. Graham - - MR. KITCHEN: Yeah. I think until the Court makes an appropriate ruling. I'm not sure that the ruling would have to be that the original program was Mr. Graham's. The Court may find other reasons - - THE COURT: No. I'm just talking about a threshold panacea. MR. KITCHEN: Yes. THE COURT: Is Mr. Swanson to be - - Professor Swanson to be precluded from that or, I mean Mr. Swanson precluded from that, also? MR. OSTROWSKI: I think he included him as one of the people that would be bound by that, yes. THE COURT: Do you, Mr. Swanson, agree to be bound by this confidentiality order? MR. SWANSON: Yes, Your Honor. THE COURT: All right. Does this have an exhibit number? MR. KITCHEN: Not yet, Your Honor. THE COURT: Should it? MR. OSTROWSKI: Yes. I would think, But it's Mr. Kitchen's ballgame, so I'll let him - - THE COURT: You'll let him mark it. MR. OSTROWSKI: What number are you up to? MR. KITCHEN: I understand the last - - THE COURT: I don't have anything for 63. Beyond that the last number I have is 67. I take it you probably have something marked as 63 which hasn't surfaced yet. MR. KITCHEN: Probably, Your Honor. Actually, you may be ahead of me on that. THE COURT: 68 is - - the last one I have is 67. MR. KITCHEN: All right. We'll mark it as 68 then, Your Honor. THE COURT: And how do we identify this? MR. KITCHEN: This would be a source code of a print-out of the program - - COURT RECORDER: Can you use the microphone, please? MR. KITCHEN: Oh, I'm sorry. The file's data base manager, yeah. The source code for the file's data base manager that was, apparently, on the Pier 1 disk. THE COURT: This is Mr. James? MR. KITCHEN: Yes sir. THE COURT: All right. I guess we were somewhere in the process of cross-examining Mr. James. WHEREUPON, LARRY JAMES resumed the stand and having been already duly sworn, was examined and testified further as follows: CROSS-EXAMINATION BY MR. KITCHEN: Q Mr. James, let me show you 68. Is this what you brought in today? A It is. Q Okay. And is this a source code of - - a print-out of the source code of the file's data base manager that was used on the Pier 1 disk? A It is. Q Are there any differences or changes between how this is right now and how it was when it went on the Pier 1 disk? A No. Q You indicated that you've driven a cab since l985; is that correct? A Yes. Q And did there come a time when you stopped driving a cab? A Off and on. Q Okay. So, you're still driving one now? A Well, no, I don't drive a cab now. THE COURT: You do not? THE WITNESS: I don't. I haven't driven a cab now for a number of - - for a couple of years. MR. KITCHEN: Okay. BY MR. KITCHEN: Q So it would be sometime in l99l when you stopped driving a cab? A Well, actually, I guess it was sometime in '92. It would be kind of hard to pinpoint it. I retained a cab for a long time and I didn't drive it. It was almost like a personal car. But I guess it was around the summer of '92 when I gave up the cab. Q Was the automobile that you were driving; was it registered as a taxi cab? A Yes. Q And - - THE COURT: While you were driving it for personal use did you pick up passengers? When did you stop picking up fares? THE WITNESS: I guess when I gave up, totally gave up the cab about a year ago. The summer of '92. THE COURT: That's when you gave up the cab? THE WITNESS: Yes. THE COURT: The vehicle, itself? THE WITNESS: Yes, Your Honor. THE COURT: There had been a time when you were driving it purely for personal business? THE WITNESS: Yes, Your Honor. Not - - it's kind of like - - THE COURT: But once in awhile you'd have a fare? THE WITNESS: Yes, Your Honor. THE COURT: I see. All right. BY MR. KITCHEN: Q Why did you give it up? A Actually, it was becoming sort of a security blanket and a crutch. I mean, it was a security blanket. And it was sort of becoming a crutch because I was having to pay about, nearly a hundred and fifty dollars a week to retain it. And, like I said, I wasn't really picking up fares regular. Q A hundred and fifty a week for what? A To rent the cab. THE COURT: Oh you didn't own it? THE WITNESS: That's correct, Your Honor. THE COURT: Why was it a security blanket? THE WITNESS: Because - - THE COURT: It seems to me it would be a liability blanket. You're paying out money all the time. THE WITNESS: That's what I was realizing. It was more of a liability than security. BY MR. KITCHEN: Q Are you still involved with the Western New York Tandy Users Group? A Yes, I am. Q It's still in operation? A Yes, it is. Q How many members does it have now? A We have about fifty paid members and when we have events, sometimes there's - - we have a little bit more than a hundred that come from time to time. Q You had indicated that the group at one time had about two hundred people in it? A Yeah. Our data base has around two hundred. And sometimes, you know, people bring in their families and things like that. They're all included. Q Well, how many paid members has it had at its peak? A I'd say around a hundred and - - a little bit more than a hundred. But when a person - - a lot of those are household memberships. And everybody in the household is a member. But they're not into the data base as a unique entity, but many counsellors are people. Q So the membership has dropped somewhat then? A It continues to drop. And the reason why is because people are not as novice to computers and it's not - - it's doesn't have - - THE COURT: They're more knowing and they don't need - - THE WITNESS: Right. It was a means of - - THE COURT: They don't need this crutch? THE WITNESS: You can say that, Your Honor. BY MR. KITCHEN: Q You indicated that you wrote an article regarding windows back in l988? A Yes. Q Was windows out at that time? A Yes. Wait - - if I said - - actually, it was the - - it was windows some part of COCO and OS2. I mean OS9 computer. I also did a presentation on this machine. Q Was this MS Dos windows? A No. Q Oh, so this is not the windows that we're normally acquainted with in the IBM PC community now? A Well, it's the same basic concept. To tell the truth I was in the process of introducing the new windows - - Q But the article you wrote was not about the MS Dos windows that we're acquainted with now? A You can say that. THE COURT: That it is or is not? BY MR. KITCHEN: Q It was about something else? A Yes. Q Okay. You said that your position in the group was vice- president, right? A I was vice-president. Q Okay. Who nominated you to be vice-president? A Richard Graham. Q Did Richard give any demonstrations or anything at any of the meetings? A Not that I recall. He might have. Q Okay. Do you recall Richard giving you some help in setting up multi-tasking at all? A No. Richard was a student of mine, has always been a student. He has never - - Q He's never helped you at all with anything in terms of giving you any knowledge? A That's correct. Q Okay. And you've never learned from him, only he has learned from you? A That's correct, absolutely. Q All right. You indicate that you have fifteen hundred users on your BBS now? A That is correct. Q Your bulletin board service? A Yes. Q And is that the most you've ever had? A No. Q Okay. What's the most you've ever had on your BBS? A A couple hundred more than that, around seventeen. Q Okay. When was that? A A couple of years ago. Q Any particular reason for the reduction in number? A Yes. Q What? A I had a hard drive crash and everybody had to sign in again and I believe some of the users felt that they was particularly - - some of them probably took the fact that their account wasn't on my system, personally, and didn't sign up again. Q Okay. When did that crash occur? A About sixteen, eighteen months ago. Q You had indicated before that you accept donations at your bulletin board service and that entitles a person to some VIP status? A That's correct. Q And they get more time on the bulletin board service if they pay something. How much do they have to give to be entitled to the extra time? A At this particular time, thirty-five dollars a year. Q Now, do you charge any sales tax on any of that? A No, I don't. Q You report that on your income tax? A No, I don't. Q Do you include your bulletin board service as a business on your income tax? A At this particular - - no, I don't. Not at all. I am in the process of designing a business, a communication business over the modem. I'm designing it now. But at this particular time, no, I don't. Q Now, how many VIP members do you have now of the BBS? A I really don't know what this has to do with what you're asking me. And this is personal information. My system is the most popular system in the United States in the world, and I really don't want Richard to gain all this knowledge, personal knowledge over my system. It does not pertain to this. Q Yes. But we're only asking how many you have as VIP sponsors. A I'm going to answer this question but I'm going to start giving a lot of resistance to your further questions on this because I don't see how this has anything to do with anything. I have about sixty paid users. Q And the rest of the fifteen hundred then are just people who occasionally log in and don't pay for anything? A It's a free system. THE COURT: Don't they pay for the time that they use it? THE WITNESS: Your Honor, what they - - THE COURT: Do they pay for the time that they use it? THE WITNESS: Not money, but they pay with an estimation (sic), it's described in my system. A lot of people ask me why do I let so many people call my system and I put all that time and stuff into it and they don't have to pay. What happens before I put up my system I used to call compu-serve. All the time I billed off of compu-serve was between a hundred and two hundred dollars a month, sometime. Real expensive. And to offset that bill I start a system and every individual that logs in, you know, there's a requirement. As long as they read some of the messages on the system they can have full access. That's the only requirement. And if I don't read in some of the messages, when I have a question or a problem I put my question and problem just like anybody else. And they pay by contributing to the support. THE COURT: Your payment then for their use is that you make use of similar systems other people have? THE WITNESS: Yes, Your Honor, including that. I pay for all the input that I - - I mean, they pay by all the input I get from all these people. If someone has a question, I don't care what your question is, it can be computer-related, it can be something about auto mechanics. Someone is going to probably read that message and respond because if they don't read messages, the access is lowered. The only requirement, they read some of the messages. BY MR. KITCHEN: Q Well, you have sixty paid users at this thirty-five dollars per year rate. Do you have - - is there any other category of user who pays or contributes anything? A As of about thirty days ago, no. There's only been two levels. There's been a level of VIP and a level of normal users. Q You just introduced another level? A I'm in the process of introducing another level, yes. Q Okay. So you have something like two thousand, one hundred dollars per year coming in from your sixty-paid users; does that sound about right? A Yes. And I do put about five, at least five hundred dollars a month into the system. My telephone bill alone is about two hundred dollars a month. Q But you don't list anything on your income tax; is that correct? A Not related to the hobby, no, I don't. None whatsoever. Q And you indicated that you don't charge these people any sales tax for this? A That's correct. Not for their donation, no, I don't. Q Are you like a not-for-profit corporation or anything? A No, I'm not. And I haven't been declaring my hobbies. I don't particularly declare mine in the computer club. I mean, if I pay my dues, I don't declare the dues, no, I don't. Q Are you registered as a charity or anything? A No, I'm not. Q Now, you had testified,also, that you taught Richard Graham to read and write; is that correct? A That's correct. Q Did you use any text or that sort of thing to assist him? A Yes, I did. Q What kind of a textbook did you use? A I used a message base on Apollo 3. Q You used the what? A The message base on Apollo 3. Q The message base? A Yes. Q Would you explain what you mean by the message base? A From day one, when Richard started calling my system the reason he called me first is because he couldn't gain access. That was a requirement of reading some of the messages. And he explained to me that it was a personal problem that he couldn't read. Q Well, what is the message based on? A It's the first thing - - one of the menu items that you type R and press enter and you can read messages on the system. Q Okay. Those are messages put on by - - A General users. Q General users. And they might be writing to anybody in - - somebody in particular or anybody who's interested, right? A Anyone who is interested. Q Okay. And there's different messages posted every day, right? A At that particular time it was - - yes, it was - - at that time it was in the twenties, about two years ago it was in the hundreds every single day. Q Well, then you didn't start with any text that was like accompanied with pictures and had sentences like See Dick Run or that sort of thing? A No. Q Okay. You jumped right into the message base? A Yes, I did. Q How long did it take you to teach Mr. Graham how to read and write? A The method that I use, it doesn't take long at all. THE COURT: So I assume this teaching him reading and writing is teaching him computer aids and not to read and write newspapers or letters or things like that, basic English? THE WITNESS: The level of the message base, I would say, is probably about the same level - - THE COURT: Are you talking about teaching him how to read the words from a book or a newspaper and to write words in that way or something in computerization? THE WITNESS: It - - it- - it was - - THE COURT: You can't answer that question? THE WITNESS: Yes, Your Honor. It was academic. Not necessarily computer. It was a computer aid, but not necessarily - - THE COURT: Not telling him, this is a cow? THE WITNESS: Oh, I didn't have an association with words. THE COURT: Or how to spell words like rabbit? You're weren't teaching him basic English, reading and writing, were you? You were teaching him how to read and do with computers; weren't you? THE WITNESS: When he - - THE COURT: Can you answer that? THE WITNESS: Yes, Your Honor, I can. THE COURT: Okay. Answer quickly. THE WITNESS: It wasn't just generally computers. The computer was an aid. It was an aid, but it was just general knowledge. THE COURT: Teach him how to read? THE WITNESS: Yes, Your Honor. THE COURT: A book like this? THE WITNESS: Yes, Your Honor. THE COURT: Words? THE WITNESS: Yes, Your Honor. THE COURT: He couldn't read words? THE WITNESS: He had very much trouble reading anything. He told me that his wife read - - THE COURT: Was he dyslexic? THE WITNESS: No, he just told me that he never learned to read. His wife always read to him. THE COURT: I see. And he couldn't write words, either? THE WITNESS: He couldn't write words. He could write words, but it was very, very intell - - THE COURT: Unintelligible? THE WITNESS: You could read the individual words, but the sentence flow and structure, you wouldn't know what he was writing. THE COURT: I see. All right. THE WITNESS: Someone else would have to write it for him if it was to make any sense. THE COURT: You were teaching him basic English then. It's l0:l9. That's three minutes slow. MR. KITCHEN: Okay. THE COURT: I'll leave it to you. MR. KITCHEN: Well, all right. Thank you, Your Honor. BY MR. KITCHEN: Q Would you say he was essentially illiterate before you taught him how to read and write? A Yes. Q Were you aware of what his educational background was? A Only what he told me. Q What did he tell you? A That he didn't know how to read. That his wife read to him. Q Okay. He didn't tell you anything about his education? A No, he didn't. Q How far he had gone along in school? A No, he didn't. Q Okay. Did he know anything about computers before you started to teach him how to read and write? A I would say no. It was hard for him to know as much about computers. He had just bought a Tandy. He had just bought a Tandy. Very few people know anything about computers before they get them. Q When was it that he bought this Tandy? A Around - - I believe it was around '88. Q '88. A I'm not real good on dates. Q And back in '88 is when you taught him then how to read and write so he could make use - - A When I started, yes, when I started. Q So he could make use of this Tandy? A No. Just - - I just taught him to read, just to add to his general - - Q Just so he could function in modern American society? A Well, any society. Q In any society? A Yes. Q All right. THE COURT: And I suppose to read an instruction book he'd need to be able to read? THE WITNESS: Yes, Your Honor. THE COURT: Did you teach him that? THE WITNESS: Yes. I was teaching him to read. He was using a computer. Before then he told me when he needed to know something his wife read it to him. I don't know what he did. All I know is what he told me and he told me he had trouble reading and I started giving him concepts of how to read using my bulletin board system. BY MR. KITCHEN: Q How much time did you spend with him back in l988 when you were teaching him how to read and write? A Probably about six hours a day. Q How many days a week? A Sometimes seven days, sometimes three days. But most times, at least three days. Q How many weeks did that go on? A A few months. Q And where did these teaching sessions go on? A At Richard's house. Q Were you employed at the time? A I was driving cab. Q And how did you support yourself while you were taking these few months teaching Richard to read and write? A Well, I was really losing a lot of money and losing a whole lot of stuff, but, you know, just teaching him to read and write wasn't the only thing I was doing. Q So you weren't really able to support yourself very well? I take it then he didn't pay you anything for this? A I told you, the things that I share with Richard, I share with him as a friend. THE COURT: Did he pay you anything for your teaching him to read and write? THE WITNESS: Not in monetary. THE COURT: I see. BY MR. KITCHEN: Q Okay. Did he give you anything? A Yes, he gave me his friendship. Q Okay. But nothing substantial attached to it? A That's correct. Q Okay. In l988 can you tell me which months it was that this teaching program went on? A No. Q Well, can you ballpark it like the beginning of '88 or the end of '88 or the winter or the summer, or that sort of thing? A Well, around that time I recall there was snow on the ground a few times, a couple of times when I was at his house and I was leaving and my car wouldn't start, he came out and helped me to start my car. He gave me a jump start a few times when it wouldn't start. And it was winter time. Q So this would - - would you guess that it would probably be in the beginning of '88? A It was sometime around that time, it was also in the winter time. Q Well, the beginning of '88, of course - - THE COURT: Well, it probably isn't very odd in that there's a winter at the beginning at the year and a winter at the end of the year. You aren't able to say which? Late l988 or early l988? THE WITNESS: It would take a lot of concentration for me to try to remember so close and specific the times - - THE COURT: Even within a whole year? THE WITNESS: That span. Like it was some where around '88 when I met Richard, '87, '88, '89. It was somewhere around that three-year span when I met Richard. THE COURT: You've got two separate winters there. '87-'88, '88-'89. THE WITNESS: Your Honor, when I first met Richard - - excuse me - - if you ask Richard when I met him, that's the time. I don't remember directly the time. It may have been '87, it may have been '88, it may have been '89. But somewhere - - when I first met Richard, our first relationship was he was having academic problems and computer problems and I was helping him to overcome all his problems, including his academic problems and his computer problems. THE COURT: What do you mean; was he in school? He was having academic problems? THE WITNESS: I say academic in such that he had mentioned to me that he couldn't - - he had problems reading and writing. THE COURT: But he wasn't in school? He wasn't having trouble with classroom work or - - THE WITNESS: I'm not saying that, Your Honor. Yes, Your Honor. MR. KITCHEN: Your Honor, I see by the old clock on the wall it's - - okay. THE COURT: We'll wait for you to come back. (Recess - l0:27 A.M.) (Resume - ll:l9 A.M.) CROSS-EXAMINATION BY MR. KITCHEN: Q Mr. James, you indicated that you were in a consulting business, computer consulting? A Yes. Q And when did you first start doing that? A I started consulting when I first started using computers. THE COURT: When was that? THE WITNESS: Around '86, I believe. BY MR. KITCHEN: Q When did you start doing it for money? Consulting for money? A Probably around '87, '88. Q Now I understand you have had, I think, fifty clients I think you said, something like that? A Yes. Q Is that kind of a lifetime total or is that in the past year or how would that be? A That's people that call and communicate with me right now as a consultant. You know, like - - Q That's your current people who, your current client list, essentially; is that correct? A Something like that, yes. Q And what did you say you charge per hour for this consulting? A Thirty-five dollars. Q Now, do you charge sales tax on the consulting at all? A Yes. Q So you have a sales tax number you report to the state? A Yes, I do. Q And is that the same sales tax numbers you use on your -- at the flea market? A Yes, it is. Q And you report the consulting fees on your income tax? A Yes, I do. Q Do you report that under the same business in your income tax as the flea market sales? A Yes, I do. Q So your consulting is basically kind of an extension of your table at the flea market; is that it? A You can say that. Q And was your work for Pier l, was that in the capacity as a consultant? A You can say that. Q Did Mr. Armenia pay you sales tax when he paid you for the Pier 1? A No, he didn't. Q Is there some reason that that was not something that was covered by sales tax? MR. OSTROWSKI: I object. That's a legal question. MR. KITCHEN: Well, it might be a legal question, Your Honor, whether it was correct or not. THE COURT: Just rephrase the question. BY MR. KITCHEN: Q Why didn't he pay the sales tax? MR. OSTROWSKI: In fact, I also object on the grounds it's irrelevant because I don't believe sales tax are owed on a consulting fee. THE COURT: Because what? MR. OSTROWSKI: I don't - - I have doubts as to whether sales tax applies to that type of transaction so I object on the grounds of relevance. THE COURT: You would compare that to legal advice and services? MR. KITCHEN: I think the problem, though, is that - - THE COURT: I mean as far as sales tax liabilities are concerned? MR. OSTROWSKI: I guess I'm just not clear on the law in that area, but it does not strike me that one pays sales tax on consulting fees, unless Mr. Kitchen wants to correct me. MR. KITCHEN: Well, I don't mean - - MR. OSTROWSKI: I don't know why he's asking the question. MR. KITCHEN: I don't mean to correct him at all. It's just that this particular witness specifically said that he collected sales tax on consulting fees. And he said that this providing the program to Pier l was, essentially, an extension of a consulting service and so it seemed appropriate then that if he collected the sales tax for the one, he might collect it for the other. Not only that, he provided a product to the publisher of Pier 1. So, that might be arguably more - - THE COURT: All right. Let's proceed. He may answer. BY MR. KITCHEN: Q Any reason - - what reason, you didn't collect sales tax from Mr. Armenia? A Because I haven't had a solid situation of the returns. I have had a certain amount of downpayments but I haven't had received the records that I'm waiting for of a total, you know, a total volume of sales and commissions due. All I have received is - - I mean, at this particular point, I have received, you know, a certain amount of payments, you know, downpayments, you know, for - - because I haven't had a solid reference point yet of finite points. The situation is still in the - - the situation of remuneration is still in the process. It's kind of hard for me to elaborate on something that is still ongoing. Q How much have you received? A I'll have to tally it up. Probably somewhere in the realm of - - I have to tally it up. THE COURT: Approximately? THE COURT: Maybe fifteen hundred. BY MR. KITCHEN: Q And were the figures or the account of this sort of thing given by Mr. Armenia in his testimony earlier in this trial, were they reasonably accurate; as far as you know? A To some degree. You know, there are - - Q Was there anything inaccurate about it? Was he telling the truth about this? A Well, he was - - he wasn't sure about how much - - he didn't say he was sure about exactly how much it was. And at this particular time, I mean, Greg has been kind of busy,and I've been kind of busy , I just have not had a lot of time to- - Q Did you have a written agreement with Mr. Armenia? A Yes. Q And it specifically provided that you would pay him a thousand dollars per version? A Yes. Q And he's issued more than one version of his disk, right? A That's correct. Q So he owes you a thousand for each one of those? A Yes. Q That wasn't what he thought, though? He thought it was a one-time, one thousand dollars and then a dollar a disk, right? MR. OSTROWSKI: Objection. THE COURT: What's the objection? MR. OSTROWSKI: He's asking him what Mr. Armenia thought. BY MR. KITCHEN: Q Well, did Mr. Armenia tell you what he thought? A We have a written agreement. Regardless of what he thought, he said he was going to go according to the agreement. Q Well, he said - - you heard him testify, though, that he was under a different impression for awhile? A Yes, I heard that. Q Okay. Is that what he told you at the time? A Yes, he did. Q What was his impression? A I'm kind of surprised. At one time he did tell me that he was under the impression that it was just a dollar for every disk and when he was getting ready to publish the second one, and I reminded him that that was another thousand dollars going on account, he told me that he didn't - - he hadn't understood that. And we reread the agreement and the agreement, it was worded kind of - - I guess it was worded by me. I really felt like, you know, I wrote the agreement down because of the problems I had here. Q How was it worded? Well, let me ask you this instead: Do you have a copy of the agreement with you? A I don't have a copy here. Q Okay. Can you tell us how it was worded? A I agree to pay a thousand dollars for each initial disk and a dollar for a disk. Q So he figured he could redo disks and come out with different versions and only have to pay that one dollar; is that what he thought? A He thought something like. It seems like when I told him a thousand dollars per version or something like that, I think he thought that I was saying everytime there was an update, you know - - I think his situation was he had not approached me about any kind of updates or any kind of, you know, bugs or modification or just enhancement. He hasn't approached me about anything. And I had the impression that the reason he didn't, during this particular conversation when he was getting ready to cut the second disk, that he thought that if he did an update, that he would have to pay another thousand dollars. Q Now, when you say an update, you mean an update of your program? A Right. Q Okay. And if there was some improvement or little change or something like this, it would make your program a little better? A Right. Q Okay. So when we talk about update, we're not talking about the same thing as him issuing, let's say, Version 2, that updates the contents of the disk? A That's correct. Q But what you meant when you wrote that was, everytime he issued an update of his disk with some different stuff on it, then he had to pay you another thousand dollars, right? A That's correct. Q Well, do you think that was really clear in how you had written it? A At the time I thought it was clear but - - Q We always think it is when we write it, but on reflection do you think it was, maybe, less clear than it should have been? A When I read it - - when he read it to me and described it to me, you know, to tell the truth, I really thought he was trying to get out of paying me, you know. I've had problems before, so actually, I just told him the same way I told Richard, I said, well, you don't have to do anything, just go about your business and I go about my business. And he - - Q In other words, he was under no obligation to use you on subsequent versions or to use your program on subsequent versions? A I think he was under moral obligation, but there was no legal binding. I think it was moral obligation. Q What was his moral obligation to you to use your program on more than one version? A He didn't have a concept of how to access information or how to do a lot of these things and I got him through the development. Q So you taught him, really, how to do this sort of thing? A That's correct. The same way I did Richard. And I just felt like - - and as we did this here, you know, my idea, you know, is that I'm a programmer and I really don't have time to be bothered, you know, with doing a whole lot of other things, you know, like making money, counting money, doing a whole lot of other things. And Richard even mentioned that. He told me that, too. But I know how to do it. I just wanted to have someone, you know, to do certain types of work, and other friends, people that kind of like, you know, advance me money to make sure that I have the hardware I have and help me, you know, help me pay my telephone bills, when I get those final notices and things. They would say, you know, wow, you mean you're only getting a dollar and he's getting forty-nine dollars. You know, the thing is in my situation is I expect to have a hundred people, you know, a hundred publishers, so as long as he just pays that one thousand dollars and the same way when he sends it out to the publisher to have it published, he pays them for mastering so he pays that fee and that mastering, it's all included and then he pays us that one dollar, you know, I'll be taken care of. Q Well, your program appears on Version 1 and Version 2? A That's correct. Q All right. Is there any difference in your program between Version l and Version 2? A No. Q Okay. So, you didn't make any changes or do anything, right? A Right. Q Okay. But, nevertheless, he still has to pay the thousand dollars? A Right. Q Because that's the way the contract you said - - A You can understand it easily. Someone came to the flea market a month ago - - Q Wait, please, please, let me interrupt you because let's just get what the question and answer is. You wrote that contract yourself, right? A Yes. Q You didn't get any legal advice or a lawyer drafted or anything? A That's correct. Q Okay. And that was after you had been through the experience with Richard where you didn't get a thousand dollars and a dollar a disk there, right? A Correct. Q Okay. So you thought what you were drafting would kind of solve that problem and to insure that you get paid what you thought you were entitled to get paid, right? A That's correct. I also felt that he was so very much aware because he had used the words in an affidavit to my attorney, you know, that he recalls Richard promising me a thousand dollars per version and a dollar a disk. So, I didn't know that I had to be so explicit in my wording because I read his affidavit that, you know - - and all I was doing is reiterating the same agreement that he was - - Q So you thought he understood because he was aware of Richard's situation? A That's correct. So, I didn't - - Q Okay. But then he said that he wasn't, he was under a different impression? I mean, when he came out with Version 2, he said he was under a different impression as to what was the - - A Right. Q And let me ask you this: Why, is there a particular reason you would be entitled to a thousand dollars if you didn't make any changes or improvements to the program from Version l to Version 2? A Yes. Yes. If someone came and ordered a data base program for his video store, he asked me, you know, to write his program and he asked me how much it would cost and I told him sixty dollars and he almost flipped. Sixty dollars, he said, the less I've ever seen is a couple thousand dollars. And he's having a video retail store and he was trying to go business-wise and he really was mocking it out. And so he sat down and gave me the specs. And he couldn't understand and my assistants who I had make modifications to my program to accomplish this task - - by the way, the programmer language is D base, so it doesn't involve my libraries in this particular capacity. My D base library. But what I did, I sorted out my libraries to accommodate the input and output for this customer. And I delivered it to him for sixty dollars and I told him that if he needed any changes or whatever, modifications, initially, we would work with him to get everything done perfectly, the way he wanted his store to do. But after a certain amount of contact, then we'll do work at thirty-five dollars an hour, you know, other changes. But, you see that's going on one computer. Now, if this person had ten computers he would probably get a discount and it may be something like,maybe forty-five dollars per computer. If he had a hundred computers it may be a smaller discount and if he had a million computers there may be a smaller discount. And so when I made my agreements with Richard and Greg, or other people, I make it for a computer that I think those disks should be on. That's why they only pay a dollar, you know, for every - - they're paying the dollar for their customers to use my program on their computer. Q Well, that explains the dollar a disk. A Right. Now, when they make a new disk that's a new agreement, a new stamp that's going on this. I'm not selling them the program to do as they please. They really have to negotiate everytime they want to reuse my program again. They're using my program on a disk and they have to negotiate my permission. 'Well, I'm making additional things to start your program on it; can I?' 'Yes, it'll cost you a thousand dollars.' Q Well, let me ask you something then: Wouldn't it make more sense for somebody who wanted a program to just go to a programmer and have him write the program for it and buy it lock, stock and barrel and not have to pay the person, you know, either a per-disk basis or a new thousand dollars a shot everytime they wanted to issue a new version. Wouldn't that make more sense to you? A You know, maybe you see Larry James wouldn't it make a lot of sense even if he was telling you this, for you to just make CD ROM disks instead of giving - - I mean a lot of things make sense, but - - Q I'm not criticizing you but I am asking if that arrangement wouldn't be more sensible to a purchaser of software? A It probably could be sensible but morally it would be wrong. It would be wrong for them to go with someone, dream with them about being a millionaire and utilize their vehicle to get there and they're going to work on this project together and all of a sudden when the money starts coming in, he'll say, oh, now I can buy my own, I don't have to include him anymore. That would be morally wrong. Q Well, that didn't occur with Richard, though, did it? A Yes. It occurred in a very much worse way with Richard. Q But he didn't fire you? A What you mean he didn't fire me? Q Right. I mean he didn't get rid of you, you left him, right, you walked out on him right? A When I left I told Richard that I was available. That all he had to do was call me for support for my product, and he continue to use it, but whatever the situation is, I was really expecting that he would come back to his senses and proceed and continue where everything left off at. Q But instead he went to another programmer who did the work for him. You don't have a problem with that; do you? A Do you want the answer that that I gave every body which is my feeling on the situation? Q Well, I guess I want a question that pertains to the lawsuit, you know. You may feel there's a moral obligation, but unless it - - A What was the question? Q Now, I forgot exactly the wording myself. But, essentially, you don't have a problem with the fact that Richard decided to go with a different programmer? A You know, I didn't sue Richard. I was strongly advised to sue Richard when he started welshing on his agreement, I didn't sue him. This is my response that the world is too big for friends, people that was friends, to be fighting each other. And let him prosper, you know, and do as he please, that was my response. Q There are a lot of programmers out there now; aren't there? A Yes, there are. There always have been. Q Okay. Well, not always, but - - A I mean since there was computers, I mean there was a substantial number of people to account for, per computer. I mean there are millions of computers more, now, and a lot of people that use a computer do use them for programming. Q Do you know other programmers? A Yes, I do. Q Do you know other programmers who would have the ability to create a file retrieval system for a CD ROM? A You know, anybody could do it, alot of people- - Q Well, that's pretty much kind of a yes or no then? I mean, so the answer is yes? A Yes. Q Okay. So, if that's something that any qualified programmer could do, doesn't it make sense to you for somebody to shop around and get the best product for the best price? A Anyone would have the technical skills to do it, but they probably wouldn't have the time to do some of the analysis that would be important, some of the analysis. See, some people - - a lot of people didn't know that the media on a CD ROM disk, was no different than a hard drive. I mean, I didn't write, specifically something for a CD ROM. Q Do you do any programming by the hour? A No. Q Do you know other programmers who charge by the hour? A No. Well, I know some programmers. I don't know how they charge. Q I mean, do you do any programming that is simply, kind of by the hour kind of thing? A What my contact with customers as consultant, as far as consultant, I will provide them what they need. And when I provide it most of the time the situation is I'm just on my honor. When I go back to a customer if I give them a bill for a couple of hours, you know, they don't question, they're happy and very pleased with the results and I just give them a bill. Q Well, do you know any programmers, I mean I'm trying to establish what's kind of out there in terms of what programmers would do. Is it possible to find a programmer who would simply create a file retrieval system for a CD ROM if he was asked to and take a certain lump sum for it and the person getting the work done would own it,lock, stock and barrel. A You know, there are probably a lot of people out there that would probably do it. You know, like the situation is when a person starts putting together a business,I mean we have a business concept. There's a lot of things you need - - Q But I'm not talking about somebody who comes to you with a business concept. I'm talking about somebody who comes to you with a very specific software concept and says this is what I want the software to do, can you do it and you say, yes. I mean, are there programs out there that - - programmers out there who could not only do it but would charge a lump sum and that would be the end of it? A Yes. Just like if a person asked me to make business cards for them. They pay me - - when you go and have your business cards printed, maybe you pay a hundred dollars to have professional looking business cards, a hundred dollars a year for it. And maybe you have ten people, you know, that are doing basically the same. You know, if I came to your place and this and that, and you go somewhere else and get the stationery and pay them some more money, you know that before you buy a computer, you might be paying me to make these things. You know, your business cards and your stationery things like that. But, if you look close enough you could say, wow, I should just buy the computer and now my business card, my stationery would come out perfect and nice everytime, this and that. So, yes, he could buy the programmer and instead of hiring the programmer, I mean you could buy the computer instead of hiring me to do the computer work. But, if you don't have the money to buy a computer, then you just have to buy the results of what the computer can do. And the same way, if Richard Graham or any body else can hire or buy the programmer, then they just have to be satisfied with hiring what the programmer is going to produce. Q Okay. But you said before, for example, that your cab was not owned by you, you rented it. You paid a hundred and fifty a week for it. A Only because I didn't have the money. It was - - it took about four or five thousand dollars to buy into the business, so instead I pay a hundred dollars a week, a hundred fifty dollars a week. If somebody gave me - - Q Wouldn't it have been more economical to be able to buy the cab outright? A Tell that to about two hundred cab drivers in Buffalo. Q Well, sure. But I'm asking you wouldn't it be more economical in the long run to buy your own cab? A You have to have that initial money in the first place. Q Okay. But assuming you had the initial money wouldn't it be more economical in the long run to buy your own cab? A When I had the initial money, you know what I did with it? I bought computer stuff. Q Okay. But if you had the initial money and you wanted to buy a cab wouldn't it be more economical to buy a cab outright? A It absolutely would be. Q Okay. That's the answer I was looking for, all right. So, I guess the next question is that a person, it would be the same thing with software, I mean? A That's correct. Q And, I suppose - - do you own your computers outright or do you rent them? A I own my computers. Q Okay. That's more economical than renting them; isn't it? A That's correct. Q All right. Wouldn't it be more economical for a person buying software to buy it outright rather than rent it? A I'm quite sure it would be more economical. Q If someone were to buy a piece of software like this, a file retrieval system outright, do you have any idea what a programmer, typical programmer out there in the market place should charge for something like that? A Me, myself - - Q But you wouldn't do it that way, though? A I probably wouldn't. But if I did, it would - - at this time, at this particular time, I might consider it but - - Q If you did, what would you charge? A It would be according to what the customer is going to do with it. Q Well, but you know what Richard does with it. Say it was somebody like Richard or Greg Armenia who was going to publish the CD ROM disk. He wanted a CD ROM retrieval system and he was going to use it on either, you know, he says, I want to own the thing, lock, stock and barrel, you know, no per disk, no rent and no additional stuff. I just want the thing in finished quantity. If I use it on one disk if I use it on a million disks. I want to outright own it. A I'll answer that and try to understand this. Microsoft will hardly sell windows, they would just sell license to windows. Q Well, I understand, but we're not talking about buying - - A We're talking about Apollo 3 that wants to build up a reputation and a volume and type of expertise like microsoft. And I always said that. Q No, no. We're not talking about Apollo, we're not talking about filed retrieval, in fact, this person who comes to you says, I want to put my own name on it. I don't want your name, I don't want any name on it. I want my name. I want to own it lock, stock and barrel. I want to pay you for your work and pay you a fair price, what's a fair price? A I really consider - - I hate if I sound like maybe I'm boasting, but I put too much time in art work and consideration and - - Q Okay. I understand what you're saying. A It's priceless. I would never sell mine. Q All right. All right. Okay. Your sometimes I suppose like an artist who feels that they can't really sell something that they've created or something like that. They want to kind of keep their hands on it. I can understand that. But there are programmers out there who would do that, you already testified to that, right? A Yes. Q Okay. Well, you know what the market is out there. What would a typical programmer be charging for that kind of task? A To tell the truth, I know they could do it, but Phil Katz wrote an unzip utility that's used on a CD ROM drive. I cannot imagine him or someone being able to hire Phil Katz - - Q You don't know Phil Katz; do you? A Not personally, but I know of him. I subscribe to his BBS and I communicate with his staff. Q But you really don't know whether or not Phil Katz has ever written a program for somebody, charged them a flat fee and that was the end of it? A Right. See the - - Q Okay. Well, that being the case, let's get off of Phil Katz. Can you answer the question? A I'm talking about a type of program, a type of program, you're saying a retriever, right? Something to do what my program does on Richard's disk. Q Sure. A Okay. because of what my program does on Richard's disk and the quality and what I want it to be like a standard, I wouldn't sell that no more than Phil would sell what his does on Richard's disk. Q You wouldn't, but there are plenty of programmers out there who will. What would they go for? A Maybe - - at this particular time, I would say, probably, ten thousand dollars, at this particular time. Q That's what it would cost to have somebody produce it? Okay. And hand over the ownership rights and everything else, correct? A Some years back it would have been a whole lot more, but at this particular time because it's kind of common, I would say that you would probably get it done. Q The term support has come up and computers and programmers use that term support. What does that word mean to you? Because it's got kind of a special meaning in the computer business. A It means - - it's self-explanatory. I mean, if a person has a problem - - support might mean that I would answer your questions to help you to overcome what value you have in it. Q It would be available? A Right. And also it might mean that support, that the product is going to be able to function in a particular environment. Q And if there's a glitch, you'd fix it? A Yes. Q And if there was need for a change you would make the change? A Yes. Q Okay. So that's what it means when a programmer is going to support a program? A That's correct. Q Okay. Is that a valuable service? A It is. Q All right. Now, this arrangement you had with Greg Armenia, was this thousand dollars and a dollar a disk, was part of that arrangement that you would support the program? A Absolutely. Q Okay. So you had an ongoing obligation then to fix anything that was wrong with it and make some minor changes along the way, if it need it; isn't that right? A The element was support. You know, like if you buy microsoft or word perfect, I mean, I'm quite sure you expect to get some support, you know, when you're installing a computer. But, if there's somethings that you really don't agree with, you know, like certain things, you said this particular glitch, this and that, I don't want to work around it, I want to do it this way. You can't just call the developers and demand that they make certain types of changes. Q Yes. But you're certainly not equating a person who buys word perfect off the shelf with somebody like Greg Armenia or Richard Graham who has a programmer, make a program for them, are you? A Actually, yes. That's the way I looked at my utilities. That's the way - - I always discuss it that way, that I provide a product. It's a courtesy if I make changes. If I make changes it's a courtesy. Otherwise, I would support it by explaining how to use the product. Q Well, you say it was a courtesy but, in fact, when you entered into the agreement with Greg Armenia you more or less said that you would support it, right? A Right. Q Okay. So he - - A Ask the questions. Q - - he was relying upon that as part of the deal, right? A That's correct. Q And Richard was relying upon that as part of the deal when he had you do the program for him? A Your words there can be misleading. You said when he had me do the program. I want you to understand, I went to Richard and offered him the use of my program. Q You understand, I'm trying to avoid saying your program, his program, he hired you, because I know all those elements are in dispute. So, rather than kind of go back to those disputes, I'm trying to use language which is kind of - - you know, when I say he had you write a program, I'm meaning it in the most general sense so that we don't get off on those disputes that we've already been on, you know. A Yes, he expected support and I did give him the support. Q Okay. Now, is there any way you can isolate the support from the actual making of the program itself in terms of how much time or value is the support worth versus how much time or value the actual making of the program is worth? A When I sell a computer, a piece of hardware, it cost me about eight hundred and seventy-five dollars to put the computer together with all the parts. Q Uh-huh. A I sell the computer for nine, ninety-nine. I make a little bit more than a hundred dollars. When a person buys one of my computers, they call me and ask me how to do all these things. It takes me about a half an hour to assemble the computer and it almost looks like maybe I make a hundred dollars in a half an hour. But by the time I finish giving him support, talking to him and answering questions, that figure drops down to about five dollars an hour. It drops down real low. But, people come to me because they appreciate the support and that's why Richard came to me. He knew that he could get support from me, that I will answer his questions. So, I don't really get a lot of money, but the thing is, I do give quality time and quality support, and I offer quality time and quality support. Q I appreciate all of that. But, I guess the question is is it possible to separate out the time and effort that you put into support from the time and effort that you put into the original programming and be able to put some kind of comparative value on them? A If I put value on it, it would seem like I was really selling myself extremely small. But I can't separate it, because I don't charge it to the customer. Q Let me ask you along a new line here. Jeffrey Anderson. You had said that you had met him through your bulletin board service? A Yes. Q Do you remember when that was? I think you answered on direct that it was - - that it would be about the same time that you met Richard or - - yeah. A It was around the same time. I could tell it to you but I'm not sure which one I met first. Q Is Jeff Anderson still working for you at the flea market? A Yes. Q Okay. He works there every Sunday? A Yes, he does. Q Okay. And he began working when? A A little while ago, about - - just a couple of months. Q Okay. Was it before the trial started? A No. Q How did you happen to talk to Jeff about working for you? A I invited Jeff to - - actually when I asked him to come to court, we was in communication and I invited him to come to see my operation. Q When was that? A I guess it was right after the trial started. I invited him to come and - - actually, I asked Jeff to come to give me a ride because my car had broke down. I didn't have transportation. I asked him to come and give me a ride. He came to the flea market to chauffeur me around as a friend. Q This was after the trial started wasn't it? A Yes. Q Was it also after Mr. Graham had testified about his contact or relationship with Jeff Anderson? A Yes. Q And during the course of your communication with Jeff Anderson, then you offered him a job? A Well, it kind of happened at the same time. I mean, I was kind of - - I didn't have transportation and I had mentioned to Jeff that it's kind of hard for me to get to the flea market in the morning time and I know - - and I asked him what was he doing. Actually, I'm not sure if he volunteered first, but anyway, it all kind of happened and initially he just came there to help me out as a friend. I just started paying him. He just came there, not as an employee situation. The first couple of days - - THE COURT: To the flea market? THE WITNESS: Right. There was no money involved the first few days. BY MR. KITCHEN: Q When did you start paying him? A About three months ago. About two months ago. About six weeks ago. Q And how much do you pay him? A At this particular time forty dollars a weekend. Q Do you take taxes and that thing out, out of his pay? A No. There's a situation, I'm in the process of putting together a contract which he is working as an independent agent at a flea market, where he's, you know - - I don't know how to put the words, but he's working for himself. Q What does he do there? A Answer the telephone. Q Does he sell? A No. I mean he can sell. He answers the telephone and takes messages, you see he does anything, he sells. THE COURT: In what way, then, is he working for himself? THE WITNESS: Because what I'm going to do is set up a commission situation where he would sell. BY MR. KITCHEN: Q Does he get a commission now? A No, I'm telling you- - beg your pardon. Q He gets forty hours for a Sunday? He gets forty dollars for a Sunday? A The weekend. Yes. I'm in the process of putting his situation together. I'm still in the process and, in fact, I'm designing a contract right now - - Q How many hours does he put in on the weekend? A Let me see - - he gets there at 9:00 and he usually leaves at 6:00. How many hours is that? Q Nine hours. He does that two days? A Yes. Q Okay. That's eighteen hours? A Uh-huh. Q So you pay him a little over two bucks an hour, right? A You want to know something? The situation there, Jeff is kind of helping me. The first couple of weeks, the first couple of weeks I gave him twenty dollars for the weekend, the first two or three weeks. And then I started giving him forty dollars for the weekend. And right now I'm in the process of designing a job situation. I told you all during this situation that right now I'm building something different. And the things that I'm building have something to do with communication service and a lot of other things. But it's something new that's being developed and Jeff happens to be involved. Q Now, with respect to Greg Armenia. You said you never knew him until he called you up on the phone? A That's correct. Q And that was in February of l992? A No. That was something like about - - that was in the middle - - let me see. When did the trial start? I mean the preliminaries happen. It was about six - - it was about- - Q We had a hearing in December of l99l. A December, okay. So it happened a few months after that preliminary hearing. Q That's what I say, about February of l992? A Yes, around March, February or March. I think the weather might have been kind of nice, so it might have been closer to March. Q And you had a conversation with him? A Yes. Q And he wanted you to write a retrieval for him, right? A Somewhere down the line. Actually, we had talked, probably about a month before that subject came up. Q Well, did you tell him, gee, I got a court order, I'm really kind of limited and I just can't use the same retrieval that's the subject of this court order? A Yes, there was a court order, and in respect to the court order I had to write another retrieval. Q Okay. So, you did write this other retrieval? A That's correct. Q And it's substantially - - I mean, you rewrote it from the beginning? A That's correct. Q Now, you testified that, notwithstanding the fact that you had written that from the beginning, that there would probably be some similarities, right? A That's correct. Q Similarities, yes. Okay. And weren't you concerned that the similarities might be, well, might make you in violation of the court's injunction? A Of course I would be very concerned not to violate the court injunction, so I wrote another program. Q Well, I know. But, I mean, the new program that you did write for Pier I, still has similiarities with the Night Owl Program that's the subject of the litigation, right? A That's right. All my speech has similarity. Everything that I wrote and everything that I do is going to be similar. I think that's a characteristic of us. Q Well, didn't you just change a few things around to make it look a little different and then, essentially, it's the same thing as the Night Program? A No. Q Now, you testified that Richard, when you first got together in April of l99l, was going to give you a CD ROM drive? A Yes. Q Now, this was an outright gift, this was not in exchange for anything or what? A Well, to me it looked like a gift. Q Okay. So, you're saying he gave this to you and he didn't expect anything in return? A Well, we was friends, he appreciated the enhancement that my program was doing to his business, for his business. Q Well then the CD ROM drive gift didn't occur until after you had written this retrieval program for him in quick basic? A The gift happened before I had delivered anything to him. But it was after my program was written. Q Was the gift given in exchange for anything? A No. It was just given on the fact that I was anxious to have a CD ROM drive and he gave it to me. Q So he didn't expect anything in return? A I asked him for a drive on credit and because of what I told him that I would do he was excited. He gave me the drive. And as far as I was concerned, if you want to look at it and pay me for using my program, no, that was okay, because what I was looking for in using that program was promotion. I mean, he gave me the drive. I asked him for the drive on credit. He gave me the drive. But what I wanted was promotion. And that's what I contracted for verbally. Q Well, I mean, are you saying now that the CD ROM drive was not given as part payment for the programming you did? A No. It wasn't given. He didn't say it was payment, he said it was appreciation. He said, I appreciate so much for what you can do, this and that. In fact it was so vague and unclear when he gave it to me, what he was doing, except that he was doing it, basically, you know, like just giving it to me, you know. That he had a problem with Ralph Marquart and he fired Ralph because Ralph got mad because he gave it to me with no bars, with - - he just gave it to me. Q Well, didn't you have a discussion in April in which you specifically arranged, though, to get the CD ROM disk drive in exchange for doing the program? A I had mentioned to you, I just mentioned to you that I asked him to give me a drive on credit and he gave me the drive, period. He just gave me the drive. Q It had nothing, whatsoever, then to do with doing it in exchange for the program? A Well, you can say it had a lot to do with it, it was happening all at the same time of the negotiation and everything else, but it was not put in the words that I'm paying you for the drive for this program, I'm buying this program. All I'm just paying you for anything. He gave me the drive and I gave him the use of my program. Q Did he give you anything else? A Richard gave me anything I asked for. Q Well, I'm showing you Plaintiff's Exhibit 30, at Page 208. Could you read down here at Line 20, you recall at the preliminary hearing when you were asked, "And in exchange for the service what were you, what did Mr. Graham state that you would receive in return?" And do you remember what you answered? A "A CD ROM drive system and disk." Q Okay. And the next question was, "Anything else?" And your response was, "No." Is that correct? A Yes. Q Well, was that truthful when you made that answer? A Yes. He gave me the disk, as I mentioned. THE COURT: Gave you the disk? BY MR. KITCHEN: Q And the CD ROM drive, right? I mean that's what it said was given in exchange, right? A He gave me those things. THE COURT: He gave you the disk and then there was a drive, wasn't there? MR. KITCHEN: Drive and a disk, Your Honor. THE COURT: That's what I thought. Go ahead. BY MR. KITCHEN: Q Well, let's go on. Have you received any CD ROM disks other than that first disk, have you received any disks from Mr. Graham? A Yes. Q About how many? A About three or four. Q Three or four. A I really don't recall. Q Well, okay. But I mean, we're talking about just a few. We're not talking about a quantity that you could resell or anything? He never gave you any disks that you were free to resell? A I was thinking about different versions. But he did give me - - I think he gave me ten disks. Q Ten? A Yes. Q And did you retail them, retail sales, sell them by retail? A No. I - - A couple of them I did and a couple of them I gave them with a package, a CD ROM drive computer system. Q Okay. And what were they worth? A What were they worth? Q Yes. A Retail Q Yes. A At the time Richard and I, we were selling them for a hundred fifty dollars retail. Q Okay. So ten disks would have been worth fifteen hundred dollars? A That's what Richard was retailing them for. That's what we were retailing them for, yes. Q Now, was that partial compensation for your work as a programmer? A No, no. Q What was that for then? A He was paying a dollar apiece for these disks, a little more than a dollar apiece for these disks. We were working on them together. He just gave me a bunch of disks to do as I please. No, that had nothing to do with compensation. Q Okay. All right. Let's look at it the other way then. What was the value of them wholesale? A The value of them wholesale? At the time Richard was wholesaling those disks I think for around - - it was according to the customer and that's why we had problems - - Q I understand you had problems, but I'm asking a value? A - - because every customer he talked to he gave them a different - -customer. Some customers he was doing them for sixty dollars, some he was doing fifty dollars, some customers he was doing for twenty dollars and one customer he was doing it for ten dollars. Q Well, do you have a figure that you can give us as to what those ten disks would have been worth wholesale? A I, myself, didn't do wholesale things so I couldn't place a value on them. For me they were worth the value that they were to produce, a couple of dollars. Q But you sold them for a hundred and fifty and gave away some of those? A No. Q Did you sell any for a hundred and fifty? A I gave away most of them with computers. A couple of them I did sell to computer club members, to friends for thirty-nine dollars, at that particular time. And when I sold it to them I told them that they had a retail value of one hundred and fifty. Q Did you ever sell any of the disks for a hundred and fifty dollars? A I never retailed disks. Actually, one of the reasons I didn't - - Q Well, you have a retail outlet, though, right? A Right. You see, Richard asked me not to sell disks locally. He didn't want his disks to be sold locally. He asked me not to and that's why I gave them to friends or gave them as a special gift item or something like that, because Richard asked me not to sell them. Q So you didn't sell any? A Richard didn't sell them. He didn't want anybody locally to have his disk. He gave me a few of them to share with friends and what I did I put them on - - I gave them with my customers with computers. But like I said, Richard did not want his disk - - in fact, it was even written on his - - I think it was written on the labels that they're not to be distributed in the 7l6 area code calling area. Q So he gave you ten disks but he told you you couldn't sell them? A Yes. Q Okay. And apparently you did sell some of them? A He asked me, he said that he didn't want - - Q That's a yes or no. You did sell some of them, right? A Yeah. I gave them away to my customers. Q Which version was this, by the way; do you remember? A I think five of them was Version 4 and five of them was 41. A couple - - it may not have been ten. I don't remember how many it was. Q Now, on the sale of these things, didn't he just put a time limit on it? In other words, didn't he say, look, don't sell them until at least thus and such a date, like after December '9l? A No. He didn't want his disks to be distributed in this area, you know, like commercially. Q Why? Did he say why? A Yes. and before that was all right - - Q What did he say? A I guess - - I don't remember his words, so I - - Q Okay. So you just knew that he didn't want them distributed all in this area? A Oh, he told me he didn't want them distributed in the area. Q But he didn't say why? A Yes, you can say that. He never was clear. Actually, there was never reasons for them not to be sold in the area. To me, that was something that I was eventually going to teach him to deal with. I even tried to tell him that, you know, persons, you know, to do all right at home and then branch out. I already told you that Richard had a problem with local people and I was telling him if these three people locally are okay, it would carry on, you know, everywhere else that he goes. Q Now, referring to one of the programs, one of the first ones that you put out, you put out a copyright notice on it that said, "Copyrighted by Larry James and Richard Graham", right? A Yes. Q And so, essentially, the copyright at that point as far as you were concerned was owned by both you and Richard? A No. Q Who was it owned by? A Larry James. Q Why did you put two names on the copyright? A Because I was referring to, and it's a sad thing that I didn't have the money to protect me from a friend, ut I was referring to that particular unit that was on that disk, nothing about the source, just that unit,that version - - I mean, the serial number 1 that was on that disk, I expected for Richard, you know, to be able to use it. So, I was referring, you know, to, when I made that compilation, that he would use that and that's why I included his name on that. I stamped it on that one that he can use. I can't put it into words. Q But if he was a part-owner of the copyright then he would be free to use the thing and make changes to it and other things, right? A If he were a part-owner, that would be true. But, according to our agreement he was using that particular executional version, that executional program. And as a courtesy I put his name to give him permission to use it, not to take it. Q Did you ever register that program? A No. I went to the library, and bought books and according to the books - - Q Well, never mind what the books were, but I'm just establishing that program, at least, you didn't register? A That's correct. Q You didn't register a program until later on, the one that you wrote in August? A Right. I found out that I had to do this here to protect myself and, yes, it was around in August when I learned that. Q Have you copyrighted more than one program? THE COURT: August of - - August of when? MR. KITCHEN: '9l. '9l. THE WITNESS: Is that when it was? MR. KITCHEN: Yes. THE COURT: '9l? THE WITNESS: Yes. BY MR. KITCHEN: Q Have you copyrighted any other programs? A No. I don't have time to be doing things like that. I need to find somebody to give me a hand doing things like that. I just sit down and write programs and fellowship with people. I need to. And, probably, as soon as I get some time, I'm going to copyright, maybe, a hundred programs. Q You indicated that you had done some consulting work for a subsidiary of Ford Motor Company? A Yes. Q Who was that? A RS&A. Q RS&A? A Yes. Q And what do they do? A They process warranty claims. Q Now, they're wholly-owned by Ford? A I beg your pardon? Q Are they wholly-owned by Ford? A No. Q They just do work for Ford? A That's correct. Q Okay. So they might just be a contractor with Ford Motor Company? A That may be. Q Okay. You also mentioned another outfit that you said was a subsidiary of Chrysler. I think you said J&L Enterprises? A Yes. Q Are they a subsidiary, wholly-owned by Chrysler or are they, perhaps, just a company, separate company that contracts with Chrysler? A They probably contract. Q Okay. Now, this first program that you produced, did you get fully paid for it? The one that was produced in quick basic? A I can't get fully paid for my programs. Q Well, I don't mean in the metaphysical sense, I guess I mean in the real sense. I mean, did you get fully compensated for what you produced for Richard? A I didn't charge Richard a commission on that disk, on the first disk. I didn't charge him commission. Richard brought up the concept of commission when he decided that he was no longer going to use a folio. I asked Richard - - Q So the answer is that you were fully paid? A Richard promised me commission on that disk. I didn't ask him for it. Q He promised you a commission on the first disk? A When - - Q A dollar a disk? A Yes. Q And he said he was going to pay you that for the first version of the retrieval that you put out? A He said for every disk that he sells from our program morning. (sic) And he was - - Q And that went even for the one that only had the quick basic program on it? A Yes. See, I didn't charge him. The reason I didn't charge him is because I wanted the promotion and I wanted the CD ROM drive. And Richard decided that he was going to replace - - Q Well, back in December of l99l at that preliminary hearing, or the hearing on the preliminary injunction, you didn't mention anything about him owing you a dollar a disk for the first program you did; did you? A Well, because I never charged him and never specified it, I'm not trying to make him owe something for something that I didn't specify. Q Well, as a matter of fact, your testimony back there in December was that you did the programming in exchange for the CD ROM drive and disk, correct? And that was it? A (No response) Q In fact, if you look at Plaintiff's 30, again, this time-- THE COURT: Let me just put a word of warning out. I promised our Court Reporter we would close for noon at l2:25. MR. KITCHEN: Okay. Maybe just one or two questions. I think we're just about - - THE COURT: Two quickies. We get quick questions. We get long answers. MR. KITCHEN: Yes, that's true. The questions are easy, it's the answers that are tough. Okay. BY MR. KITCHEN: Q Page 2l4 in Plaintiff's Exhibit 30, the transcript. Down there on Line No. 20, the question is asked, which was similar to the one back on Page 208. It says, "Okay. In exchange for the quick basic program that you produced to allow him to use, you received what in return?" And do you recall your answer that you said that "He gave me a CD ROM system - - drive system, and a CD ROM disk." A I recall it. Q Okay. Was that truthful when you said that? A He gave me that. THE COURT: In payment? THE WITNESS: He gave me that and he promised me a commission but he did give me that in payment. BY MR. KITCHEN: Q Well, you didn't mention the commission back then? Did you just forget that there was also - - MR. OSTROWSKI: Objection. It's improper impeachment. He was not asked about that. THE COURT: Well, wait a minute, wait a minute. My only complaint is he's asking more than one question. Ask one question and we'll quit. BY MR. KITCHEN: Q You didn't mention anything then about - - MR. OSTROWSKI: Objection. He wasn't asked. THE COURT: He may. BY MR. KITCHEN: Q You didn't mention anything then about commission; did you? A That's correct, I didn't. THE COURT: All right. We'll quit until what time? MR. KITCHEN: l:30? MR. OSTROWSKI: That's fine. (LUNCHEON RECESS - l2:30 P.M.) (RESUME - l:45 P.M.) CROSS-EXAMINATION(CONT'D) BY MR. KITCHEN: Q Okay. Mr. James, the subsequent copyright notice that was on one of your programs had changed from being copyrighted by Larry James and Richard Graham but it changed to copyrighted by Larry James for Night Owl Publishing, right, or Night Owl, CD ROM or something, right? A Yes. Q And then it said written by Larry James and then it said collaborated with Richard Graham; do you remember that? A I remember. Q And you wrote that, right? A I sure did. Q Okay. What did you mean "collaborated"? A I was working as far as, telling Richard what to do as far as setting up the - - well, there were some things that he might want or something like that so the main thing was to give him some credit, give him recognition. You asked me this in a lot of different ways. THE COURT: All right. But don't answer it in a thousand different ways. You've already answered it, you've answered it. BY MR. KITCHEN: Q What were you giving him credit for? What did he do? What contribution did he make? A Well, he did sort out the directories with the modules I gave him. THE COURT: Sorted out what? THE WITNESS: He sorted out the directories, those DIRS, he sorted them by using PC file ware. BY MR. KITCHEN: Q Okay. Any other contribution to the program, itself? A Oh, there was no contribution at all to the program, none whatsoever. There was absolutely no contribution to the program. Q Well, how about - - A The collaboration came with just working on the project together to produce the CD ROM disk. Q Well, how about the fact that he had already provided you with a working program that he had previously used on a version which he was - - and which worked, and which kind of set the pattern as to what he was looking for? A I really didn't know, particularly. I didn't ask him what he was looking for. I just went to him and told him what I was going to take him. Q You mean to say that he didn't really have any input in terms of what this retrieval was going to look like or be? A That is correct. Q So this was just something you did totally on your own? A Yes. I do that all the time. Q And you didn't even rely upon anything that had gone on ahead of you in terms of the program that Richard and Jeff Anderson had put together that was on the previous disk? A Not in terms of programs, but I did look at this format of the CD ROM,the format of the information that was on the media. And I adapted it to my retriever. I adapted my data base manager to use those files that was on that disk. Q Well, didn't you testify earlier that you were the one who showed Richard how to set up his DIR files, his directory files? A Yes, I did. Q Okay. But, weren't those DIR files set up, virtually, exactly the same as the CAT files, they were just called something different? A No. Q Just a C-A-T, after the period. They were DIR? Well, they have the letters, D-I-R, instead of C-A-T? Wasn't that the principal difference between them? A That was a difference and that made a difference. And, as I said - - Q There weren't any other significant differences between the CAT files and the DIR files; were there? A Well, That difference is very significant in itself in that PC - - Q Well, what a name? A Right. Right. That's absolute. Q But when you wrote your program you could have set up your program to go look for CAT files rather than DIR files, right? A The files had an extension after the name. Q Well, sure, but the DIR, what was the significance of that? Where did you get the letters D-I-R for that? A PC Board. Q Okay. But, I mean, what's the significance of that? Does the DIR stand for something? A See, you asked me a question. If I answer that question, it really doesn't give an answer to - - there's a significance. The significance is that dot. Q Well, my last question to you, though, was couldn't you, when you wrote your program, I mean, it was arbitrary that you decided that you were going to pick DIR as the name of these directories. You could have called it C-A-T. You could have called it D-O-G, right? A That's correct. Q Okay. So, the fact that you called them DIR instead of CAT, that isn't any significant difference, is it? A That's not what I was referring to, right. That's not a significant difference. That's not any, whatsoever, that's correct. Q And wasn't that most of the difference between the CAT files and the DIR files; it was just their name? A No. Q What was the other difference? A The other files had an extension. That was a dot and then some other letters on those text names. Q But that's just part of the - - that's part of the name of the file, right? A That is part of the name of the file. You know, it might take a few days for you to understand this difference. You know, you have to learn something about - - THE COURT: We don't have a few days. THE WITNESS: That's what I'm trying to let him know. If you keep trying to ask me a question by question, question by question, it'll probably take a year for you to understand - - THE COURT: Not if you just answer the questions, Mr. James. THE WITNESS: Okay. BY MR. KITCHEN: Q What was the names of the CAT files? It was just a number with CAT; wasn't it? A Yes. Q Okay. The names of the DIR files. It was just a number with DIR, right? A Right. Q Okay. No difference there, right? Other than the letters, themselves? A One of them had a dot, had a period, as part of the file name. Q Okay. But every file name that's run on a PC, on an IBM type PC has a name which can have a maximum of eight letters followed by a period followed by three letters, correct? A That's correct. Q And that except in certain special cases you can call those names, either the eight letters before or the three letters after anything you darn well please, right? A That's correct. Q Okay. Now, you indicated that all of this was based on PC Board's format? A Yes. Q And you're saying that's where Jeff Anderson got his format for this? A No. Q Where did he get his format from? A I really don't know. Q Well, you've seen it. Doesn't it look like PC Board's format? A The files were written on, resembling the structure of PC Board. Q Okay. A Resembling the structure. And Jeff's Program handled the files that were on the media just as they were. That extension makes a difference. It will not work - - you know, just like you said, yes, there's a file, eight letters and an extension. The extension is reserved for something else. In my program it's reserved for something else and the PC Board. So having those extensions they won't work. It worked with Jeff's program because he doesn't use PC Board and he didn't know anything about the way PC Board handled them. Q Well, but the format of your text files, your DIR files, is essentially the same as they are in PC Board; aren't they? A Yes. Q Okay. In fact, didn't you testify on direct examination when we were here on the 2nd of November that, essentially, this was - - it wasn't even original, I mean it wasn't really an original thing. It came from PC Board, right? A The structure of the text files did come from PC Board, yes. Q Okay. So, they weren't really original with you then; were they? A That's absolutely correct. The structure of those text files, I have no claim on them. Clark Development Center owns that claim if someone can claim it. Q Now, you testified on direct examination, also, that during your conversations with Richard that at some point or another he said that your program was better than Folios, right? A That's correct. Q Okay. And he wanted to use yours instead of Folios, right? A That's correct. Q And, in fact, he did. What was he - - and he also said that he wanted to pay you or would pay you what he was paying Folio, right? A He said that at the same time, yes. Q Okay. What was he paying Folio? A I have no idea, he never told me. He just told me what he was going to pay me. Q Well, Folio is a commercial program, right? A That is correct. Q In fact, Folio publishes a number of programs; don't they? A I really don't know. I know that it's probably a program that he put on one of his disks, that's as much as I know. Q Okay. And do you know what it goes for? A I have no idea. Q Well, do you have any idea whether somebody can just purchase Folio,put it on their disk and publish disks all they want to once they have paid the proper fee and become a registered user? A I don't have any idea. Q Did he say that he was going to pay you the same as he was paying Folio before or after he said that he was going to give you a thousand dollars and a dollar a disk? A It was during the same time that he said that he was going to replace Folio for my program. Q Now, you also testified that Richard said he didn't want a lot of features on his, on the retrieval program, right? A That is correct. Q What specific features did he not want on the program? A The GIF file viewing was one of them. THE COURT: Excuse me, what? THE WITNESS: The ability to view pictures. BY MR. KITCHEN: Q You said the GIF file, G-I-F file? A Right. And he also told me that he didn't want a search feature which - - there's some features that's in the quick basic program that Richard said he didn't want, you know. But they was in my program, I just didn't put them on the menu. Q The programs he's had since, though, they had these features, right? A Richard is doing a lot of development towards what I was trying to encourage him during those early days. Q And, in fact, he does have the GIF, the picture view feature on his current programs; doesn't he? A Yes. Some of the reasons he didn't want the features is because he didn't want people to - - I think he wanted to downplay what my retrieval was. Q How do you know that? A At the same time he said that he didn't want these features. During the same conversation he used the words that, you know, Larry, people they're buying these disks just for your retrieval, it's stealing the disk. I want to sell my disk. Q Well, if he sold the one, wouldn't he be selling the other? A That's the way I looked at it. And that's why I tried to encourage him. The way I tried to encourage him to look at it. Q Now, did you testify that, essentially, you were the one who really wrote up the program that Jeff Anderson produced? A No, I had nothing to do with whatever Jeff Anderson produced. Q Well, didn't you testify that you had made it up before anybody else had ever done it and you had put it out on your bulletin board service? A Put what out? Q A program, a retrieval program? And it was all over the place? That was your testimony. Do you recall that? A No, I don't recall that. Q Okay. So, it's your testimony that you didn't really come up with the same retrieval program as Jeff Anderson had and actually put it out before Jeff did? A That's correct. In fact, I - - Q So as far as you know Jeff Anderson, the program that he wrote or he and Richard wrote, whatever, was developed without any assistance from you? A Whatever they worked on was independent of me. It was done by two of my students, but it was very much independent of me. Q Well, you say two of your students. You're not saying that they wrote this program while they were students of yours and with your assistance, tutelage, are you? A During that time Richard accepted me as teaching him and guiding him with programming. The words teaching and tutoring him for literacy and academics was never in the picture. Those words was never in the picture. But the fact that I was teaching him things about computers and things, that was in the picture that was mentioned and understood. And those words was used that way, you know. I never used the words student teachers with Richard, but I did use them with Jeff and I used them with a lot of other young computer users. In fact, I use them with a lot of people, period, whether they're young or old. Q Are you saying that you were involved in the development of the program that Jeff Anderson had? That you were teaching him at the time and that while he was your student, he wrote that program? A I never knew that Jeff was writing a program. I never knew that Jeff had written a program. Q Okay. So he didn't ask you for any help? A That's correct. Q Now, you did put protection in your program that you wrote for Richard in the C language. THE COURT: In what? MR. KITCHEN: C language. THE COURT: C language. BY MR. KITCHEN: Q What was the purpose of the protection? A To protect my name. To protect my copyright. Just to protect my program. Q Okay. And that was really all it protected, right? I mean, somebody could change anything else in the program, it wouldn't trigger the error message or anything. It was just fooling around with your name or your compu-serve number, right? A Right. My identification, that's correct. Q Okay. A Larry James' identification. Everything else is a variable and, according to the immediate customer I have at that particular time. Q Now, you indicated that at some point or another Richard said that he would start paying you this dollar a disk commission in September, right? A Yes. He did say that it was going to start. THE COURT: In September? THE WITNESS: He didn't give a special, a specific time. Some of the time he was saying when he gets on his feet, when he gets more money into - - BY MR. KITCHEN: Q You don't remember testifying earlier that he said that he would start the commission in September of '9l? A He didn't set a definite time. He was saying when he get a certain amount of money. When he gets his account up to a certain level. Q Okay. So he didn't say anything about September? A He mentioned September but he didn't say directly that the commission was going to start right then. But, of course, it was - - Q Well, what did he say about September? A I think he was supposed to do some publishing in September. THE COURT: What did he say? THE WITNESS: I don't know the words, but somewhere around that time span he was supposed to reach that goal. So, it was somewhere around that time span. He kept showing me his checkbook and it kept growing. It might have been around in September. BY MR. KITCHEN: Q Was that okay with you? A Yes. Q Your arrangement that you were trying to make with Robert Depew, that would have involved the same program that you wrote for Richard, right? A At that particular time it was the same program. Q Okay. Just the change in the name, that's all? It would be called Storm - - A I already told you the name was a variable. Q Right, okay. And you would have gotten a thousand dollars for that plus a dollar a disk, right? A That's correct. Q And, theoretically, you could have sold this to any number of people who wanted to buy the program, they'd all have to pay a thousand dollars? A That was all in the design. And that was the profit I was to be making. That was the million dollars I was to get. That was all in the design. Q Who wrote the documentation for these files? A Who wrote those - - those text files? They were written by people that upload the files and I did write - - Q No, no, no, not the DIRs text. Was there any documentation with the program that, you know, like a little-- A A retriever program? Q Yeah, a little DOC file or read-me file or a file that told, you know, how to get started and what to do? A Richard and I. Q You both wrote it? A It's kind of hard to remember. He kept asking me. He kept pressuring me to write it. He kept pressuring me to write documentation. And my response was that documentation, it's in the program. With viewer friendly, you don't need any docs. He just asking me to. And I think I wrote a couple of sentences. I just wrote a couple of elements down and gave it to him. Q Did he consider that adequate? A He did consider that adequate. But he did - - the reason I say Richard and I, because he - - Q He added to it? A Yes. Q He added a whole lot to it, right? A I really don't - - I really don't - - I never paid any attention. Q Well, there's a lot more in those documentation files now than just a couple of sentences, right? A I wrote about eight paragraphs. Q A couple of sentences and now it's eight paragraphs? What happened to a couple of sentences? A I said I wrote a couple - - a few sentences. Q Maybe they run-on paragraphs and they take, run-on sentences that take several paragraphs to get through the sentence; is that what you're saying? A What I did was gave a brief overview of the commands. And to tell the truth what I kind of did, was just wrote out the help file. The help file. You know, when you press F-l or hit a high key it will give you a command. I did write a couple of sentences and I gave him the same help file, that the person gets just by hitting the help option. Q Okay. You indicated there were some hidden options in the program you provided to - - A Not hidden. Q Didn't you use that term? Didn't you, on direct examination, didn't you say something about that there was some hidden options that you had that were not turned on? A Well - - THE COURT: I think you mentioned that a moment ago, didn't you? That there were some features that weren't screened or brought up? THE WITNESS: Right, right. They weren't hidden. I just didn't give them because he wasn't looking for them. BY MR. KITCHEN: Q Oh, but you said that they were actually written. They were in the source code. They were in the program. But they weren't operative. A Yes. Q Is that true? A That's correct. Q What features did you have that were in the source code that was provided but was not - - were not turned on, were not active? A A lot of - - Q Well, name one? A Hard drive accessibility. Q The what? A The ability to use the hard drive rather than the CD ROM, you know, for your media. Q That's a feature? A I don't know what you're trying to get to? I mean - - THE COURT: Does feature mean anything to you? Is it a technical word that means something in computers? THE WITNESS: Yes. Wait a minute. Okay. THE COURT: Is it something that means something in computers? THE WITNESS: Yes. THE COURT: All right. Then you can answer the question. THE WITNESS: Yes, that's a feature. BY MR. KITCHEN: Q Okay. Was that the only feature that was in the program but wasn't operable? A No. To tell the truth I would probably have to study whatever I provided for him. I have to study whatever I provided. THE COURT: As you sit here now you don't know? THE WITNESS: Right, right. At the time - - THE COURT: Well, just say I don't know. THE WITNESS: Right. Right. I don't know. There were a number of them but I don't know. I couldn't recall them. BY MR. KITCHEN: Q Well, maybe I could suggest a couple of features to you and you can tell me if they were - - how about the ability to format a floppy disk? THE COURT: Ability to what? MR. KITCHEN: To format a floppy, while you're in the program. Was that a feature? THE WITNESS: No to probably your next ten questions. MR. OSTROWSKI: I'm wondering if Counsel - - I mean, he's been asking questions about programs for about twenty minutes. I have no idea of what programs he's talking about. Could he at least refer - - THE COURT: Luckily you don't have to, but as long as your witness does, you can consult with him after and he can educate you. MR. OSTROWSKI: But, Your Honor, Mr. James is going to speculate as to which program Mr.Kitchen is talking about. THE COURT: Well, you've already told him he's not to speculate; haven't you? MR. KITCHEN: Well, yes. BY MR. KITCHEN: Q I'm referring to - - well, let me try and pin it down. I'm referring to the program that was written in the C language that was - - that ended up with Mr. Graham just before you left, basically, okay? The one from the summer of '9l. Well, did it have, for example, mouse support? A No. Q It didn't have sound or anything; did it? A Yes. Q It did have sound? A Yes. Q Was that a hidden feature or - - A No, it wasn't hidden. Q Okay. How about the search? Did it have a search feature? A Yes. Q Okay. Did the search feature, was that internal or did it utilize DOS to effect a search? A Everything is DOS. Q Well, I mean, did it use the DOS search feature? A No, it didn't. Q Okay. And did it view GIF files, the picture files? A That's not something I provided for Richard. Q Okay. Did it have the jumping scroll bar, I mean, you know, where you jump from item to item rather than moving line by line? A I consider that a bug, no, it didn't have that. Q Okay. Well, all right. So, we're not hitting anything here. Did - - there's nothing you can think of in terms of a feature that was incorporated into your program that you gave Richard, but is not - - or wasn't active? A Well, I - - there was a way to make labels for public domain floppy disks. Q Make labels? A Yes. Well, make a file list of, you know, tags, items, that a person would pull off their media, when I pull them off my hard drive to make a floppy. Q Or like the tagging or marking feature that we've seen on some of these programs? A Yes. If you hit - - there's a feature to pull out a file list and that it creates an individual list for producing disk labels. Q That's on the program, but it was not active? A It's on the program and it's unlikely that I accessed it because Richard had no use for it. Q Okay. And what's the name of that module that does that? A It's part of my copy, copier. Q Okay. It's in the copy module? A Yes. Q Okay. Now, Richard had, of course, permission to utilize your - - the program that you initially provided for him in quick basic, right? Let me rephrase that. It was not infringement for him to utilize that on his CD ROM, correct? A On the CD ROM, that particular version it was on, that's correct. Q Okay. The one that was written in C, he also had permission to use that, right? A That's correct. On his initial version that he has subscribed to, that's correct. Q So, at what point are you - - is it your position that he started to infringe? A I've never really challenged or said that he infringed. He had a contract that I just hoped he would honor. Q All right. So is it your position now, really, that the essence of your counter-claim is really just the fact that he didn't pay what was agreed, this thousand dollars a version plus a dollar a disk? A He also had no permission to make my very personal source files privy to anyone. THE COURT: Thereby infringing? THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q Well, who has profited from this, of seeing your source code other than Richard, himself? A A lot of people. You know that college professor that said that he designs the right utility to do things, you know, I don't know if he writes all the hundreds or thousands of programs he said he did. I think he said thousands. I said hundreds or thousands, but I think he said thousands. But, anyway, he acts like he was so much in awe of the output that was on the screen and the things that I put together, you know, I use very simple commands and structure and this and that, and I did something that he describes as magnificient and just majestic. He really described it with all those elements. And then he analyzed - - Q Did he do that recently? A And then he opened up and looked at my personal source code and decided to consider it child's play. But, the things I do may be child's play. Almost anything I do, you know. But it's the output on the screen that makes a difference. It's how it makes the user feel. It makes the user happy. Q You were questioned about the checks that you got and you indicated that the check you got, that was part of Plaintiff's Exhibit l2, the specific check dated July l9th, l99l, that you were given that because you were short and needed some cash, right? A That's correct. Q And did you consider that to be a gift or as part-payment of what was owed to you? A I really considered it to be - - well, actually, I asked for it as a loan and Richard told me that it was a payment towards my fee. Q Okay. Didn't you testify on direct examination, though, that you said Richard said that you shouldn't bother to pay it back? A He said that it would come out of my fee, would be part of my fee. When I asked Richard for something, everytime I asked him for it he gave it to me and he told me that he was going to take it out of the money, the millions of dollars that I was going to get for my commission. THE COURT: Who was talking about millions of dollars? THE WITNESS: Richard. BY MR. KITCHEN: Q While you were working, did you ever spend anytime at Richard's working on his computers at all? A Beg your pardon? Q Did you ever spend anytime at Richard Graham's using his computers? A Yes. Q And did you have occasion at anytime when you were at Richard's to communicate with your own bulletin board at your own house? A All the time. Q And did you use that occasion to upload certain files or programs from Richard's computer to your computer? A I did at one time. Q Okay. A I used the download files. THE COURT: Used what? THE WITNESS: I usually would - - THE COURT: What did you say? THE WITNESS: Download. Retrieve the work that I would do, you know, the previous night. THE COURT: You downloaded it from his computer to - - THE WITNESS: From my computer - - THE COURT: Excuse me. You downloaded it from his computer to your bulletin board? THE WITNESS: The other way around, Your Honor. THE COURT: Oh, all right. BY MR. KITCHEN: Q And by the way, when we talk about downloading, we're usually talking about receiving a program from another computer over a modum? A That's correct. Q And when we talk about upload, we're usually talking about sending a program or file from the computer you're on to another computer, via modum? A That is correct. Q Okay. So you, essentially, uploaded some of the programs that were on Richard's hard drive and you uploaded them to your computer at home, right? A I would retrieve the work, you know, that I had done the previous night to - - THE COURT: Retrieve from? THE WITNESS: From my computer. BY MR. KITCHEN: Q Well, did you ever do it the other way around? Did you ever send programs from Richard's computer up to your computer? A I did once. Q Okay. What programs did you send up there? A Borland C plus plus. I sent that one time. In fact, it was only once I did send Borland C plus plus. Q Okay. Were those the only ones? A As far as I can recall. There may have been a few files but mainly I was bringing my work from home towards that computer. If I forgot a tool, most of the work I had on floppy disks or my lap top. And if I ever needed a tool I would retrieve it from my system. Q Okay. I'm going to show you an exhibit. MR. KITCHEN: This will be a new exhibit, Your Honor. This is Plaintiff's Exhibit 69 and it can be just characterized as a Q modem, that's Q m-o-d-e-m log. And let me show this to the witness. BY MR. KITCHEN: Q Okay. If you would look at - - THE COURT: Is that the letter "Q" or "Cue"? MR. KITCHEN: C-u-e - - or, excuse me, letter "Q". BY MR. KITCHEN: Q If you would look at that, do you recognize from looking at the format of Plaintiff's Exhibit 69, Mr. James, as to what that might be that you're looking at? A Oh, yeah, it's a transcript of files of communication between my computer and Richard's computer. Q Is that a print-out of the log? A It is. Q Okay. Can you tell us what a log is? A It's - - I just said, a transcript of elements, of activities. Q So, in other words, if there was uploading and downloading and that sort of thing the computer, somehow, keeps track of it and stores it in a file called a log? A That is correct. Q And you can print-out or save this log at anytime and look at it, right? A That is correct. Q Okay. And does it show what date that this would have been done? A The log is somewhat detailed and the date is included, yes. Q Okay. What's the date on that one, Plaintiff 69? THE COURT: Doesn't cover a period of time? MR. KITCHEN: Might be one date, Your Honor. THE WITNESS: One of the times this offer says is l980. But it seems to be from 903 to 829. THE COURT: What does that mean? MR. KITCHEN: So we have a couple of different dates. THE COURT: Excuse me, what does that mean, if anything? THE WITNESS: Actually, I think some of these times or some of these dates - - THE COURT: Those two, three digit numbers refer to dates? THE WITNESS: Yes, Your Honor. THE COURT: What, for example, does 829 refer to? THE WITNESS: Actually, Your Honor. I went a page too far. I think it's from 903 to 923. BY MR. KITCHEN: Q You mean like September 3rd to September - - A Yes, in '9l, yes. Q - - 23rd or something like that? A Yes. Q And is the activity that's shown on those logs is that your activity? A I would say it most likely is. It probably is. Q So where it shows that you uploaded something or downloaded something, that's something that you actually did? A Yes, most likely. Q Are there any commercial programs that you uploaded or downloaded or let me withdraw that. Are there any commercial programs that you uploaded from your - - from Richard's computer up to your computer? A Borland C plus plus. Q Okay. Now, that was not lawful, was it? A What you said is not a true statement. Q Well, it was a question? MR. OSTROWSKI: I object to the witness being asked legal questions. THE COURT: He may answer. THE WITNESS: No. You're incorrect. That was very much lawful. BY MR. KITCHEN: Q That was lawful. Were there any other commercial programs other than Borland C plus plus that you uploaded to your own computer? A Not that I know of. Q Okay. A I haven't studied this in detail. Can you point out something? If you're inclined to study it, I'll look at that particular item and maybe comment on it? Q Well, it might take a minute. A But I will tell you concerning that Borland C plus plus situation. I communicated - - I was communicated on compu- serve daily and I communicated to the people that wrote the Borland C plus plus and they told me it was very legal to use that compiler on more than one computer, as long as it was one person using it. And I was the only person using it. I was using it on two different computers. Q Okay. MR. KITCHEN: I'll offer Plaintiff's 69, Your Honor. MR. OSTROWSKI: I object on the grounds of relevance. There's been minimal testimony about it. MR. KITCHEN: Well, Your Honor, I think it's extremely relevant, particularly when we think in terms of the issue of Mr. James' status, vis-a-vis - - THE COURT: Is it an intelligble presentation to a lay person, such as myself? MR. KITCHEN: Are you saying it was? THE COURT: I say, is it? MR. KITCHEN: Is this? Yes, sir, particularly with the assistance of testimony which will - - THE COURT: That's what I mean. It needs testimony. MR. KITCHEN: Well, yeah, but not a great deal. THE COURT: Not a great deal? How much is needed and do we have it already? MR. KITCHEN: Well, I am planning on having Mr. Graham make some specific testimony using this document. So, you know, if it's not admitted now, it will be offered later. THE COURT: Well, I don't want to admit it into my mind and calculator until I can understand it. MR. KITCHEN: Okay. THE COURT: So, objection sustained without prejudice. MR. OSTROWSKI: I'll also be objecting to Mr. Graham's testimony as beyond the scope. THE COURT: Well, you object to it when it happens. MR. OSTROWSKI: I'll object to it at that time as out of order. BY MR. KITCHEN: Q The tape, Plaintiff's l6, the tape of the telephone conversation. Now you recall the telephone conversation, right? A Yes, I do. Q You were awake when Mr. Graham called you that night? A I wasn't awake. Yeah, the phone woke me up, so I was awoke. Q Oh, okay. So, you were awaken out of a sound sleep, as we might say? A By the telephone ring, yes. Q All right. But you recall the substance of the conversation, right? A Yes, I do. Q And you recall everything that was said, so much so, that when you heard the tape you knew that when there was a little noise there, that that meant that you were missing, that something was missing from the conversation? A Yes. Q Okay. And what you remember missing from the conversation was that Richard said, well look - - what did he say? That missing - - those missing words? What were they? A He acknowledged That the commission was coming when his disks were manufacturing better. Q Okay. And what was said just before that? A I just gave you what was being said - - Q Well, we know what was said during the glitch. What I'm asking you is what was said - - A Now I'm saying what was being said during the verbal - - Q I understand. I understand. You told me the missing information, what was said during that glitch, okay, which we can't hear on the tape because the glitch is there. What I'm asking you now is what was said before the glitch, just before the glitch? A I did say - - Q Do you remember the words? A I don't remember the exact words. I did say something to the effect - - Q Do you remember, specifically, what occurred before, before the glitch? A Yes, I remember specifically. I can't tell you word-for- word, but I can tell you what was said. I could tell you the whole thing that was being said. Q Well, I just asked what was said before the glitch? A He was responding to my reiteration that he owes me money and I should be paid. And he was telling me, he was reminding me that he told me time and time again that I'd get my commission when the disk manufacturing was better. Q That's what he said before the glitch? That's on the tape? Before the glitch? A Before the glitch I did say - - Q I want to know what the words are before the glitch. A I did say - - THE COURT: Wait a minute. One at a time, please. Ask a question. BY MR. KITCHEN: Q I want to know what was said just before that little glitch happened. A I did say the words, these words were said, I did say. Q And what preceded - - THE COURT: I did say? Quote "I did say" unquote? THE WITNESS: Yeah. THE COURT: Just those words? THE WITNESS: I don't remember it word by word, but those are some of the words, I did say. THE COURT: I dare say? THE WITNESS: I did. THE COURT: I did say. Are you telling me the words you say or say, I did say such and such? THE WITNESS: Yes, Your Honor. THE COURT: Which? THE WITNESS: I - - THE COURT: Are you telling me that you did say something? THE WITNESS: No. I'm saying the words were, I did say. THE COURT: "I did say," quote, unquote. BY MR. KITCHEN: Q Do you remember what your words were just before the words "I did say"? A I remember my concept. Q Well, I'm looking for words more, if you can give them to me, but - - well, how about after the glitch? What was talked about right after the glitch? A I can probably - - Q Do you remember? A After the glitch, faster and better. Q Those were the words? A Those were some of the words. Q And they were from you? A Oh, what did I say? Q Well, what occurred right after the glitch? You said the words, "faster and better" appear after the glitch? A Yes. Q And whose words were they? A Richard's. Q They were Richard's. So the words before the glitch were your words, which - - A No, they were Richard's words. Q Oh, they were Richard's words, not your's? A That's correct. Q And the words, "I did say" and the words after the glitch are "faster and better"? A Yes. Q Okay. What were the words that occurred during the glitch that preceded the words "faster or better"? A I probably can't answer because I can't tell you the exact words, in fact, I can't tell you - - THE COURT: You don't remember? THE WITNESS: I remember the conversation - - BY MR. KITCHEN: Q You don't remember the words, though? A I don't know the exact words, but I know what was said. Q Well, how about the words - - A The reason I know what was said is because he was reminding me what he said so many times. Q All right. You're giving me an analysis and I really - - you know. If you remember them, fine, if you don't, fine. All right. What did he say after the words "faster or better"? I mean that's on the tape. Do you remember what the words were after the words "faster or better"? A That I would be paid. Q That's what he said after - - THE COURT: "Faster and better'' you and "I will be paid"? THE WITNESS: Those are some of the words. I mean, I remember the conversation, the conversation - - THE COURT: Mr. Graham wouldn't have said, "And I would be paid"; would he? THE WITNESS: That you will be, you will be paid. THE COURT: That you will be paid? BY MR. KITCHEN: Q That's what appears on the tape after the words "faster or better"? A I'm remembering the conversation. To tell the truth, I'm remembering the conversation without the break. It's hard for me to say what happened before the break and what happened after the break. I'm just plain remembering the conversation, period. Q Okay. Have you heard this tape? You heard it in the courtroom, right? A Yes. I heard it in the courtroom. I heard it once outside of the courtroom. Q Okay. In fact, you heard it in a courtroom, what back in December of '9l, didn't you hear it then? A Yes. Q And you heard it again since we gave a copy to your attorney, right? A Yes. Q Okay. So, you've heard it a couple of times then? A Yes. Q But it's your testimony now that, essentially, your recollection of the conversation which originally occurred is clearer than your recollection of what's on the tape? A That - - Q Is that true? Yes or no? A Right. Because it was an - - Q Okay, thank you. A - - emotional situation when it was happening. Q Yeah, okay. You don't have to give me the analysis, just the yes or no is good. Now, what program were you going to use as a file retrieval on the disk, on the CD ROM disk that you were going to market with Nick Costantino? THE COURT: As what? MR. KITCHEN: He was going to market with Nick Costantino, that CD ROM disk. What retrieval program were you going to use? THE WITNESS: The same one that - - BY MR. KITCHEN: Q That Richard had? A Yes. Q Okay. A And what's why I never did do it. Q Because of the injunction? A Right. In fact, he's still waiting. Q Why didn't you - - oh, okay. So, Mr. Costantino is ready, willing and able to go forward with this project? A That's correct. Q Now, why didn't you just simply use the same program that you wrote from scratch for Greg Armenia? A Because I had promised him that particular - - Q Promised who? A Nick Costantino. Q Uh-huh. A I promised him something specific. I showed him a product. I showed him a direct product and I gave him the program and said this is what we're going to publish. Q And what you gave him was what you had given Richard? A Right. And I never took it back and I never did go. I just told him we'll proceed after this is over. Q Would it be that - - THE COURT: Excuse me. Is it Constantino or Costantino? MR. KITCHEN: I think it's Costantino. THE COURT: C-o-s? MR. KITCHEN: Yes. He's an attorney, Your Honor. It's probably in the directory. THE WITNESS: You're very right. I guess I probably could go and approach him about a new program and a whole lot of different stuff. In fact, Costantino, himself, asked me to collaborate with his programmer. BY MR. KITCHEN: Q No reason you couldn't go to him and say, hey, Nick, this retrieval is a little different than the one I originally showed you, but it's better and it was written from scratch so there won't be any problems. And we'll go ahead with it, right? A I probably could do that, but I haven't chose to do that. Q Okay. And, of course, if you did go ahead with that project you'd make a million dollars? A I would have at that particular time. Q You don't think you'd make a million now? A It would be a whole lot harder now. A disk at that particular time was retailing for, a - - PC sig (sic) was selling theirs for five hundred dollars. Right now PC sig (sic) is selling their disk for around thirty-nine dollars. Q Now, you indicated that Greg Armenia has paid you a total of about fifteen hundred dollars. Was that in cash? I mean, was that in money or was that in merchandise? A That's in money, in money only. Q Okay. So, in addition you've received a number of disks? A I heard Greg's testimony and - - THE COURT: Just answer the question, regardless of what he said. THE WITNESS: It was fifteen hundred dollars in money. BY MR. KITCHEN: Q Have you ever received disks from Greg Armenia? A Yes, I have. Q How many? A Probably, maybe a hundred. I haven't even counted them. Q About a hundred disks? A It was a couple of boxes. I don't even know how many is in the box. Q Did you consider those to be in partial payment? A No. Q Well, what are they then? Were they a gift? A Yes. Q A gift? A Yes. Q Have you sold them? A No, I haven't. Q Have you sold any of them? A Yes, I have. Q What do you sell them for? A Around thirty-nine dollars. Q What's the retail price on that? A I'm not sure. I'm not a retailer with the CD ROM disk. But - - Q Well, you run that - - THE COURT: You don't know - - THE WITNESS: Actually - - THE COURT: Excuse me. You don't know the retail price? THE WITNESS: Right. I don't - - THE COURT: All right. Just - - BY MR. KITCHEN: Q You run that table out at the flea market that's a retail sales place; isn't it? A Selling CD ROM disks is not our specialty. Q Well, you sell other software there, don't you? A No. Shareware, yes. My shareware disks is three dollars a disk. Q Your what? A My shareware disks, are three dollars a disk. Q Okay. So you're selling shareware disks there. A Yes. Q Do you sell CD ROMs there, too? A I already told you, yes, for thirty-nine dollars. Q Do you have them on display and you sell them for thirty- nine dollars? A Thirty-nine, yes. Q How many of those have you sold? A Maybe around ten. Q Okay. THE COURT: We'll take an interruption whenever you can tolerate that, Mr. Kitchen? MR. KITCHEN: Well, I can tolerate it right now, Your Honor. THE COURT: All right. Thank you. (Recess Taken - 2:42 P.M.) (Resume - 3:05 P.M.) CROSS-EXAMINATION(CONT'D) BY MR. KITCHEN: Q Okay, Mr. James, this disk that you were going to, and maybe still will publish with Mr. Costantino - - THE COURT: With whom? MR. KITCHEN: With Mr. Costantino. BY MR. KITCHEN: Q Where are you going to get the software for it? Where are you going to get the programs? A Out of my head. Q You mean this is not going to be a shareware disk? A Oh, where will I get the program? Q Right. A Off of my BBS. Q Okay. Do you have A.S.P. approval for that? To do that? A You know - - Q That's a yes or no question. A No. Q Okay. Have you applied for it? A No. THE COURT: What approval? MR. KITCHEN: A.S.P. BY MR. KITCHEN: Q Do you know what A.S.P. stands for? A Yes, I do. Q What does it stand for? A Associated Shareware Publisher. Q Okay. THE COURT: What is it? THE WITNESS: Association of Shareware Publishers. BY MR. KITCHEN: Q Let me just show you Plaintiff's 69 again. Does that indicate that you not only uploaded something such as Borland C plus plus but does it also show certain commercial programs that you downloaded from your computer to Richard's computer? A It does. Q Okay. Is one of them QEMM60? A Yes. Q What program is that? A That's - - by the way, you just indicated that this is not an accurate log. This - - THE COURT: Can you answer the question? You say it indicates that but it's not accurate? THE WITNESS: Right. That's a program that was released a few months ago, a little while ago. It's very recent. It's more recent than this log is. So, I don't know - - I can't verify things in this, but I do own a desk view and that's the utility that goes with one of the programs I use on my system. BY MR. KITCHEN: Q Isn't GEMM stand for quarter deck extended memory matter? A Yes, it does. Q And that's a commercial program, right? A It is a commercial program, but I didn't download that and that wasn't out at that particular, during the log time. Q This shows that - - THE COURT: Now, you're saying, what, you did not download it? THE WITNESS: Right. THE COURT: You did not download it? THE WITNESS: That's correct. THE COURT: The log is wrong in that regard? THE WITNESS: Right, right, that's - - THE COURT: All right. Just answer the question. BY MR. KITCHEN: Q Okay. And how about here; X- Tree (sic) Gold? You downloaded X- Tree (sic) Gold, right? A I'm not - - it was a little while ago and I don't know where this list came from or where it was compiled from? THE COURT: Did you or did you not or don't you remember? THE WITNESS: I don't remember. THE COURT: All right. BY MR. KITCHEN: Q What does X- Tree (sic) Gold, by the way? A It's a utility. Q Is it a commercial program? A Yes, it is. Q It wouldn't be lawful for you to download that; would it? A If I owned it, it would be my volition to sort my files as I please. Q Well, would it be lawful for you to transfer it over to a different computer? A If I decided to use a different computer. THE COURT: Is this a one-person - - many computers, as long as they're one person? THE WITNESS: I would - - THE COURT: Is that accurate? THE WITNESS: I'm not sure that I would take the law on that one. THE COURT: That's not that situation? You mentioned that situation before. THE WITNESS: Right. I was familiar with the elements - - THE COURT: With the Borland C plus plus? THE WITNESS: Yes, Your Honor. I was concerned about that particular program. But I don't know about these other things you have on there. THE COURT: If you don't know, just say I don't know. BY MR. KITCHEN: Q Well, are you acquainted with Norton Utilities? A Yes, I am. Q Are you acquainted with X - Tree (sic) Gold? A Yes, I am. Q Okay. And you're also acquainted with Quarter Decks Extended Memory Manager? A Yes, I am. Q Okay. Now, those don't come in zip versions, do they? A No, they don't, not per se. Q So if somebody was going to put them in a zip version they would have to zip them up first; wouldn't they? A That is correct. Q And that's what you did, essentially; didn't you? A The files, that log that you have right there, I really don't know where that log is derived from. It's something that was edited on somebody's text file. See, right here you have l99l - - Q Wait a minute, wait a minute, you're not even answering the question. You're not even trying to here. Look at the volume that's here in the second pack under Plaintiff's Exhibit 9. There's a whole list of - - THE COURT: Plaintiff's 69? MR. KITCHEN: Yes, sir. BY MR. KITCHEN: Q And it's a directory of a number of zipped programs. You made up those zip files; didn't you, out of programs that you had on your computer? A No. Q You didn't do that? A No. Q You didn't do those on your computer and then call when you were over at Richard's house and download those onto Richard's computer? A I don't even know what pon-zip is. Q You didn't do that or did do that? A No, I didn't do that. Q You didn't do that? A That's something Richard did. Q Okay. So are you saying that you were not over at Richard's on September 3rd and September 4th, l99l? A During those time spans I was over at Richard's house but, apparently, those are - - I don't know how much of those things is transcripts of Richard's communications to my computer. Q But this log is - - first of all, this is connected to your computer; isn't it? A Right. Rich has an account on Apollo 3. Q Okay. A And he still has a current account. The same account he always had. Q Well, let me ask you this, though: Even if he had access to your computer at your bulletin board service- - - first of all, are you a registered user of X-Tree(sic) Gold? Are you a registered user of X-Tree Gold? MR. OSTROWSKI: I object on the grounds of relevancy. THE COURT: He may answer. THE WITNESS: Yes. BY MR. KITCHEN: Q Are you a registered user of Norton Commander? A It's not registered in my name. It was given to me by a computer club member who no longer uses this computer club member pass. And he did give it to me. Q So the answer is, no, you're not a registered user? A Well - - Q How about QEMM? A Yes. Q You're a registered user of that? MR. OSTROWSKI: I'm going to object on the grounds of relevance. Registration doesn't - - THE COURT: I don't know what it means and you can't testify. MR. OSTROWSKI: Registration, Your Honor does not mean that you can't use the program. THE COURT: You may bring that out on redirect. BY MR. KITCHEN: Q How about DOS 5.0? Are you a registered user of DOS 5.0? A I have a registration card that I never I sent in. Do you want me to bring it to you? Q No, no. I mean if you bought the program and didn't bother to send in the registration - - A I have a stack about this high of - - THE COURT: How high? THE WITNESS: About this high. THE COURT: Three inches? THE WITNESS: Yes. I have a big stack of registration cards. I hardly ever send them in. BY MR. KITCHEN: Q All right. So you bought the - - A In fact, I never send them in. Q So you bought DOS 5.0 but you haven't bothered to register? We talked about that before and I guess that's no big deal. A That's correct. Q Okay. Well, I just want to - - but that's different from not being a registered user of X-Tree Gold because you never bought the program yourself; isn't that true? A I would say that's different. Q Okay. Well, how about the QEMM? Did you buy QEMM and register it? A I bought the package. Q Uh-huh. So you could use them on your computer, right? A You asked me about programs that I use - - Q So you could use them on your computer; couldn't you? A I could use them on my computer. Q All right. A That lists of files - - Q And - - A - - did not come from - - Q - - but you weren't authorized - - A - - my computer. THE COURT: Wait a minute, please. The matter is getting out of control. If you want a yes or no answer, please put it in your question. BY MR. KITCHEN: Q But you weren't authorized to transfer these down to Richard's computer; were you? A I didn't. Q You didn't do that? A Yes. Q Somebody else did it? A To tell the truth, I don't even know if they was even transferred from my computer. It's just a text file that somebody edited and created and gave to you. Q Well, you said before it seemed to be accurate and that you were there during these dates. A Yes, I was looking at the dates and I do recall using a computer but some of the text files that you have showed to me are some of those zip files that you have named to me. No, they didn't come from my computer. Q One thing is for sure, though, they seem to at least indicate that they came from your computer, right? Whether you did it or somebody else did it, they came from your computer? A Right there in l980, I didn't even have a computer. THE COURT: Wait a minute, please. Wait a minute, Mr. James, you have to wait for the question and then supposedly he'll wait for the answer unless your answer is too long. BY MR. KITCHEN: Q Okay. But, in fact, they apparently came from your computer because that's what the log indicates, right? MR. OSTROWSKI: Your Honor, I object to any further questions about this exhibit. It's not in evidence and it has not been identified by the witness. He's disputed its reliability and accuracy and its origination. THE COURT: It has not been admitted because in the form it is without testimony about it, it's unintelligible to the tryer of facts and the questioning, I think, leads to that end of making it intelligible; I'm not sure. I'll overrule it. MR. OSTROWSKI: He's repudiated it, Your Honor. THE COURT: Pardon me? MR. OSTROWSKI: He's repudiated the accuracy and reliability of this record. THE COURT: I know, but that's a different thing from my understanding it. And I can't understand it in its naked form. BY MR. KITCHEN: Q This log does indicate that whoever did the downloading did it from your computer, correct? A That would appear that way. Q Okay. Now, this could be done by anybody who calls up your computer on the bulletin board service, right? A Looking at that, that would appear that way, but it couldn't happen. Q Uh-huh. But you don't keep either XT Gold and QEMM on your bulletin board service so that they can be downloaded by anybody; can you; do you? A No, I don't. Q The only thing you put on your bulletin board service is shareware and things that can be freely downloaded, right? A I don't put anything on my system, people upload the files that are there, but what ever the situation is_ _ _ Q I know but you leave programs on there that are shareware? A Thats correct yes. Q In fact, if somebody uploaded a commercial program on your BBS you wouldn't let it stay there, right? A That's correct. Q You'd take it off; wouldn't you? A Yes. Q Because you don't want people downloading commercial programs from your computer? A That's correct. Q But, according to this log, that's exactly what was done. Commercial programs in zipped form were downloaded from your computer? A Do you want me to write one for you and - - THE COURT: Just answer the question. BY MR. KITCHEN: Q Isn't that true? A No, that's not true. According to this log, this never happened. It couldn't happen because I didn't have a computer on some of those days. Q So this never happened? A I didn't have a computer on some of the days that's in that log. Q Well, the only one that you don't have a computer on is the date that's 0l0l80. Okay? What does the date 0l0l80 mean to you? A It would appear that someone was tampering with computer dates on their computer, tampering to make certain things that happened appear like they happened at a different time. Q How is the clock maintained in a computer when it's unplugged and shut down? A By battery. Q And what if we take the battery out? Will the clock be maintained? A No, not_ _ _ Q And so if we don't have the clock maintained because we've yanked the battery out and we crank up the computer and we ask the computer what the date is what will the computer tell us? A The same thing it would say if someone is tampering - - Q Do you have a date in mind that the computer will tell us if we crank it up with the battery pulled out? A Yes. Q What is the date? A l980, January lst, l980. Q Okay. So this ll80 down here means nothing more than if somebody's clock was screwed up, right? A It can mean that. It could mean that. Q And the lines before on the log are more recent dates of September 3rd, l99l and then they're followed with September 4th and then later on with September 6th, September 7th, September 9th, llth, l2th and l3th and then the l4th and the l6th, the l7th and the l9th and 20th. You were there on those dates. In fact, it goes all the way to September 23? THE COURT: Wait a minute. Just one question. MR. KITCHEN: Right. BY MR. KITCHEN: Q You were there on those dates; weren't you? A I was there during that time frame. I don't know, specifically, whether it was those dates or not. Q Well, do you remember somebody else working on this particular computer doing this uploading and downloading with your bulletin board service or your computer? A Say that again? Q Do you recall whether somebody was communicating with your computer? A Not particularly. You know, I don't pay a lot of attention to people that log in on my systems. If they leave messages I would know. Q What does - - what is your BBS's phone number? A 897 - - let me see - - 894-7386 I believe. Q Okay. What does the number 896-6409 mean to you? A That's an alternate number. Q Okay. THE COURT: 896 what? THE WITNESS: 6409. THE COURT: 896 what? You gave me three digits back. MR. KITCHEN: 6409. 6409, Your Honor. BY MR. KITCHEN: Q And 896-6409 isn't the number that most of your users call when they call your BBS; is it? A Beg your pardon? Q That number isn't what your users normally call when they want to get a hold of your bulletin board service; is it? A That's incorrect. That is one of the numbers. Q Okay. And didn't you set up your computer before you went over to Richard's so that you had a bunch of commercial files in zip format sitting on your computer so that you could call from Richard and download those and put those commercial programs on Richard's computer? A My system is always designed so I can access my utilities. Q That's a yes or no. A Yes, my computer has been set up, it was set up for four years before I had any dealings with Richard. Q So the answer is yes and you very well could have been the one who downloaded these items to Richard's computer, right? A Those items that you named are not on my computer. A lot of those items you named are not on my computer. Q Which ones aren't on your computer? A That QEM60 wasn't on my computer that particular time. Q X- Tree (sic) Gold? That was on there, right? A I believe that's the utilities on my computer. Q And Norton was on there, right? A No. I use X- Tree (sic) Gold. Richard uses Norton. That was never on my computer. I used to always try to get Richard to use a better program. And to come to think about it Richard uploaded that to my computer, Norton, and tried to get me to use it. Q How about DOS 5.0? A Yes, that was on my computer. Q Okay. A That Norton came from Richard. MR. KITCHEN: Based on that we offer Plaintiff's Exhibit 69. MR. OSTROWSKI: I object. He's repudiated the accuracy of the document numerous times. THE COURT: Well, have we surmounted the threshhold which worried the Court, Mr. Kitchen? MR. KITCHEN: Well, I think so, Your Honor, because I think it reads rather plainly, as compared with some of the documents that we've had here. It's pretty fairly easy to follow. THE COURT: All right. I'll receive it. Plaintiff's 69 in evidence. (The document above-referred to, Plaintiff Exhibit 69, was received into evidence) BY MR. KITCHEN: Q Let me show you Plaintiff's Exhibit 29 and to be perfectly honest, I'm not sure if we have done this before because some time has elapsed. Have you seen this before? THE COURT: I know it's in evidence. Does that help? MR. KITCHEN: It may help, Your Honor, but it may have been put into evidence by Mr. Graham that's why I'm-- BY MR. KITCHEN: Q Well, I'll ask Mr. James if he recognizes Plaintiff's 29? THE COURT: In any event, the key question is whether or not you've reviewed that at all with Mr.James; is that right? Is that right? MR. KITCHEN: This? I think he's seen it but I'm not sure. THE COURT: This is the key question, that you don't remember whether you've gone over this with Mr. James. Mr. Graham may have put it in evidence? MR. KITCHEN: Yes, that was the idea, yes, sir. THE COURT: Well, let me see. BY MR. KITCHEN: Q Mr. James, do you recognize Plaintiff's 29 here? A Yes, I do. It reminds me - - it's kind of vague, it was quite awhile ago,but it reminds me of something that most likely happened. Q Did you write it? A I believe I did. Q Okay. And you put at the top Night Owl Computer Service and some address and some numbers,phone numbers and that sort of thing and underneath you put attention Larry James. A Yes. Q In what capacity were you writing this letter? A I was writing it - - Richard - - I had brought some tapes over - - I had a problem with some of my tapes and Richard kept telling me that he could fix it. He just kept telling me he could fix it. And I told him that I was going to send it out, but the thing is, because I was driving cabs no one may not be there to get it. And he said that he would receive it for me. And so I wrote the letter but we never did send it out because Richard fixed the tape. Q Richard fixed the tape? What was the matter with the tape. A The rubber band had came off the spool. Q And Richard fixed it? A Yes. I, myself, would never have - - I wouldn't have - - he assured me that he - - Q Who assured you? A Richard. He showed me a couple of tapes he experimented with that didn't work but he used them as parts. I didn't want to take a chance with the tape because I was very concerned about my data and Richard showed me a bunch of tapes and he guaranteed me that all he had to do was just put the rubber band on, it was real simple. And so I didn't send, really send the letter. But had he not fixed it I would have sent it to them and they would have sent it back to that address at my attention. Q Well, was it the tape that was a problem or was it a tape drive that was the problem? A May I see that? Q When you say "tape", you're just talking about a cartridge that fits into one of these back-up systems, right? A Actually I was recalling - - Q Are we talking about a drive or are we talking about a tape? A I was talking about a tape. Q Just tape? A Right. Q Not the drive? A We did have problems. Q The tape has a rubber band in the cartridge? A No. We had problems with the drive, too. Whatever the situation is, there was - - THE COURT: Where was the rubber band? BY MR. KITCHEN: Q Was the rubber band in the drive or was the rubber band in the tape cartridge? A Okay. These are drives. And, yes, I did use Richard's address. He told me to. THE COURT: Excuse me. What did the rubber band fix? THE WITNESS: A tape, a Colorado tape. THE COURT: All right. THE WITNESS: There was problems with a drive and this was just a few things. I received the keyboards, I received a number of things. In fact, Richard was trying to get me to receive more and more stuff. BY MR. KITCHEN: Q Now, this address up here, Night Owl Computer Service, 2l9 Potomac. A That's Richard's address. Q Okay. And those phone numbers underneath it, are those Richard's phone numbers? A No. I could be reached by phone. I just couldn't receive the package. I wanted the package to come there. THE COURT: Are those Richard's phone - - THE WITNESS: No. Those are my telephone numbers. THE COURT: All right. THE WITNESS: I - - THE COURT: Wait a minute. Wait for a question. BY MR. KITCHEN: Q Did you ship these things using Richard's UPS number? A Richard - - THE COURT: Did you or did you not? THE WITNESS: I didn't use anything. Richard did it. I don't know what Richard's UPS number is. Richard packaged them, Richard shiped them and Richard received them and Richard, gave them to me. BY MR. KITCHEN: Q And whose drives were they? A They were my drives. Q And is the date accurate? September ll, l99l? A I don't know, but it can be accurate. It was between the lst of September and the middle of September, and maybe the 3rd quarter of September. Q Okay. MR. KITCHEN: No further questions. REDIRECT EXAMINATION BY MR. OSTROWSKI: Q When you cancelled the agreement with Mr. Costantino, was that because of the Court's injunction? A No. Yes. Q Yes or no? A Yes. I haven't really cancelled - - THE COURT: Wait a minute. Wait a minute. Ask a question. THE WITNESS: Yes, Your Honor. THE COURT: Not you. THE WITNESS: Oh! BY MR. OSTROWSKI: Q Let me ask you, I'm going to read something to you and ask you if you know what it means. "It is hereby ordered that the Defendant, his agents and servants are preliminarily enjoined from publishing, copying, selling, marketing or otherwise disposing of any of the copies of the computer program entitled DFM.EXE or Storm l.EXE or any program however denominated which contains material substantially copied from the Plaintiff's program, Night Dot EXE or its source codes." Now,with respect to the words "contains materials substantially copied from" do you know what that means? A Yes. Q You do? What does it mean? A I mean, I would think it would mean just copying the program or copying the program. Q Have you had any legal training? A No. Q Okay. Have you had any training in copyright law? A No. MR. KITCHEN: Your Honor, I'm going to object to the extent that this is intended to be some sort of an excuse. Mr. - - THE COURT: It's a whitewash job, yeah, but he's entitled to do it. MR. KITCHEN: But he was represented by Counsel at the time. THE COURT: Well, you can bring that out on recross. BY MR. OSTROWSKI: Q Did your attorney have any legal training? Withdrawn. Now, how much time passed between the Costantino episode and the Greg Armenia deal wherein you gave him a file retrieval? A About ten months. Q Ten months? A In fact, it was over a year. Q And how close was the Costantino episode to January l5th, l992, the date of the Court Order? A It was about a couple of weeks, a few weeks. Q Now, you've seen Plaintiff's Exhibit 69? A Yes. Q Is this an accurate record? A No, it's not. Q Do you have any idea how this was created? A It looked like it was created with a text editor. THE COURT: With what? THE WITNESS: With a text editor, such as Q, to edit a text file. BY MR. OSTROWSKI: Q And do you have any idea who created it? Do you know who created it? A I know that one of Richard Graham's favorite programs Norton Utilities - - MR. KITCHEN: Objection. Not responsive. THE WITNESS: Norton Utilities is there. BY MR. OSTROWSKI: Q Do you know who created it? A Yes. No. I don't know, per se, but - - Q Okay. Let me ask you this: Whoever created it, could that person have put any data in here that he or she wanted? A That's correct. Q What commercial programs did you copy from Richard's computer onto your's besides - - A A Borland C plus plus. Q Anything else? A Nothing I recall of. Q Did you believe that when you were copying C plus plus, that was a lawful use of the program? A Absolutely. I didn't inquire as to the developers of the product, could I do it. And I - - Q Okay. That's enough. You answered the question. Now, can you give us a summary of the conversation you feel is missing on that tape recording or can you not? A I can give a summary. THE COURT: Excuse me? THE WITNESS: I could give a summary. BY MR. OSTROWSKI: Q Okay. And what is the summary? A Richard was responding to my questions about him welshing on his agreement that paid me in my life with money and he's telling me, I told you countless of times that you would paid your full commission when things were faster and better. And the reason I remember that is because he actually had told me many, many times and he just reiterated what he had told me so many times. Q Now, you were asked on cross-examination about the source code that allow you to shell to DOs in a program? Do you remember that? A Yes. Q And does your file retrieval - - how does your file retrieval program shell to DOS or did it? A Some of the times it would run a module called systems and some of the time it would just, it would create its own shell, using a lower level. It was spun a new shell without running the system. Q So did you use - - is shell to DOS a DOS command or is it a separate program? A It's a DOS command. Q You're saying your file retrieval program does not use that? A It uses a special structure, somewhat of a modified structure by either spawning the program or running the system. Q Now, I'm going over my notes from several weeks ago, so that's why I'm a bit slow. Okay. With respect to - - there was some testimony about the location - - I'm sorry, withdraw that. Was there a file 0000 on Pier l? A No. THE COURT: Four zeros? MR. OSTROWSKI: Yes. THE WITNESS: No. BY MR. OSTROWSKI: Q Okay. It must be my notes then. Do you have to register a program in order to be able to use it lawfully? A No. Mostly when I read the reference to registration they ask you to register if you want support and it's real common that I use a program for six months to a year before I get around to registering it. I'm going to need support for this C compiler that I just purchased for the units. It cost me twelve hundred dollars and the registration has sat on my desk for about three weeks. But now I'm getting ready to fill it out because I'm going to have to ask their staff technical questions. If it weren't for this, I probably would never get around to registering it. I should have registered it when I first got it but it doesn't challenge the legality. It just gives you an opportunity to be able to get support from the developer. Q What are the expenses on your BBS per year, approximately? A I have a shut off notice on one of my telephone bills. I'm going to have to run down and pay it as soon as I can, but that particular phone is - - THE COURT: Can you answer the question? THE WITNESS: It's about two hundred dollars. THE COURT: Two hundred dollars a year? THE WITNESS: That monthly bill for that particular telephone. THE COURT: Two hundred dollars for what period of time? THE WITNESS: For a month. For one of the telephone numbers. BY MR. OSTROWSKI: Q How many numbers are there? A Three. Q So can you give us an estimate of the monthly phone bill total? A About - - I would say about four hundred dollars. Q Are there any other expenses? A I also have to replace hardware and I get bigger hard drives. The hard drive system I have now is 2.5 gigs and the last drive that I bought cost me about twelve hundred dollars. And I would say monthly expenses can easily be about six hundred dollars a month. Q Do you have a large electric bill or is that not a problem? A The electrical bill is probably just a little bit more than other people, but because electronic stuff, computer stuff, is mostly solid state, it don't generate a lot of heat or turn big engines. It don't burn up a real lot, per se. Since they never go on. I would say it costs about a dollar a day in electricity. Q Have you ever taught anybody to read other than Mr. Graham? A I work on things like that very regular. That was one occasion. I mean, when I was in college I took a course, a psychology course. It was accredited where people in the classroom were assigned students, underprivileged kids in the community. And underachievers especially kids that were failing and couldn't do academic work. I was given two students that was making straight F's, and failing all the time. And the course lasts about six months. And between when I started working with those two kids and when I finished, they went from failing to straight A students. Q And other than those two have you taught anyone else literacy skills? A It's real common. Yes, I have. I taught an individual, another individual, spelling. I started working with him - - Q Who was that? A Alan Harris. Q Okay. And aside from literacy, have you helped people with school work; young people? A It's very common, young and old. I mean,it doesn't matter but I do it kind of often and I also do the same thing with people, you know, for computers. I believe I have sort of a special knack for helping people to grasp some things. For instance, one of my employees from the flea market who had never used a computer thought that he never could touch a computer, couldn't do anything. He started working with me and I started teaching him things. I didn't teach him academics, but I was teaching him things about computers and he really followed me totally beyond his scope. Right now he does a lot of - - he became - - within three months he got hired with a firm and got a lot of job offers from a lot of different places working with computers. That happened about three times in the past six months with people that was working with me at the flea market. If they worked with me for about two months they can get a job almost anywhere. Q Now, Mr. Kitchen asked you some questions that led to you giving a figure of ten thousand dollars. What does that figure mean? A Well, if someone spends a few hours developing something, you know, I mean a few weeks or hours of whatever, they develop something, they could probably produce a substantial retriever or something that a person may be satisfied with, and they may sell it for ten thousand dollars. Can you ask the question, again, so I could try to stay in that realm, in the scope, as good as I can. Q Well, I think you answered that, but you said you wouldn't sell your program for ten thousand dollars? A Right. The program that I have and that I was writing, and there was a real big serious gap and a handicap because I had to start over. It wasn't just a program for say like, for instance, a college professor says he wrote hundreds and thousands of programs. Me, I just write one program. Just one program, but that program is to be an environment to do everything and anything for anybody and everybody. So, I can't sell it. My program is an environment. Q Now, the program that somebody could buy for ten thousand dollars, would that be identical to yours? A No. It would probably be something that would start, have a finite starting point and a finite ending point. And it probably would be an ongoing thing of support. The individual would be remunerated for compiling something and putting it together. And from then on, like - - Q Well, all I'm asking you is, if somebody went out in the market place and bought a file retrieval for ten thousand, would that be identical to yours? A No. It wouldn't be possible that it would resemble anything about me and my programs, whatsoever. Q Why not? A Because no two people - - there's too many ways of doing something. There's just too many ways and people just wouldn't hardly stopple (sic) in the same way. It just wouldn't be the same. Q Now, did you refuse to support the program that you sold to Richard? A No. Q Now, what is the difference between DIR and CAT with respect to - - well, which program used the CAT name for organizing directories? A I think the original disk - - there was some problems with the original disk. THE COURT: What question are you answering? THE WITNESS: He asked me what was the difference? THE COURT: No, he didn't. BY MR. OSTROWSKI: Q What program used the name CAT to describe files? I'm just trying to get orientated here. A I believe it was Jeff Anderson's program, but I can't be l00% sure. I believe it was on that disk. Q And did your program use DIR? A Yes, it did. Q For the same purpose? A No. Q Well, did your program use DIR instead of CAT, the name? A I - - Q Yes or no? A Mine used DIR. Q Okay. So the names were different? A Yes. Q Were there any other differences? A Yes. Q And what were they? A The program that Jeff Anderson wrote was totally different in that it didn't use the information that was in the DIR, the text file, which was called by a different name. All it did was just route that file out. It had another separate, totally separate file, that was called - - I forgot what it was called, I think it was called DAT. Yes, DAT, for data file. And it was on the route directory and all those headings that was in Jeff's program came from that file. If you changed that file, that index file that's on the route directory then the headers that appear on Jeff's program would be different. My program, it just retrieved information off the customer's, the media, whether it was CD ROM or hard drive or tape, it just retrieved the information. One of the information was a text, was a subdirectory of text files. And when it pulled up that text file it handled information that was in that text file. It did not use a media index file, it just had that information that was in that text file that the customer provided to me. And the guidance that I did with Richard, he had a CAT file, he had some files and they had an extension. PC Board and me, we don't use - - we use extension for something different. And since it had those extensions, it would not work and so I told Richard to use the DIR format, a PC board, so that it will be compatible with my utilities and compatible with PC Board. And it's a significance difference, that DOS CAT file. A file name can be any name, but Jeff's program used those files - - it just displayed a file. My program had the information that was in that text file to do things for the customer. Q Okay. Some day I'll understand it, I guess. Now, when - - Did Richard Graham take your copyright notice out of your program? A Yes, he did. Q Did you consider that an infringement of your copyright? A Yes, I did. Q And has he fully paid you for the use of your program? A No, he hasn't. Q Do you consider that a copyright infringement? A Yes, I do. Q Has he fully accounted to you for all of the profits - - THE COURT: Wait a minute. You say your basic position is he promised to pay you; is that right? THE WITNESS: That's correct, Your Honor. THE COURT: Now, having promised to pay it would not be an infringement; would it? THE WITNESS: Your Honor - - THE COURT: Would it? Aren't we really just dealing with his failure to live up to his contract to pay you? THE WITNESS: Yes, Your Honor. BY MR. OSTROWSKI: Q You initially gave permission to Mr. Graham to use your program in C language? A That's correct. Q Was that permission on the condition that he pay you according to your contract? A That's correct. Q Okay. And did he pay you according to your contract? A No, he didn't. Q Okay. And at the point when he stopped paying you according to the contract, did he have any permission from you to use your copyrighted program? A No. THE COURT: Did there come a point when you said to Mr. Graham, because you have not paid me you no longer may use my program? THE WITNESS: Not directly. THE COURT: Not in so many words. THE WITNESS: I didn't get a chance. THE COURT: All right. BY MR. OSTROWSKI: Q Has Mr. Graham fully accounted to you for the profits that he's made out of your program? A No. The last - - Q That's a yes or no? A No, he didn't. Q And was that one of the conditions of allowing him to use your program? A That is correct. Q Now, in your file retrieval - - see if I can find it. I'm showing you Plaintiff's l8. What are these include commands at the top? What do they mean? A These are standard library files from Borland C plus plus or from a C Compiler. Q Did you write those? A Those modules right there? Q Yes. A No, I didn't. Q Now, I see include DIR.H? A Right. It's a coincidence that that module has a same name as one of mine. Q Well, okay. But let me ask you this: Do you have a program called DIR, INT DIR in this document? A Yes. These header files. I refer to them as modules, but they're really not a module, per se. What they are, they're index to modules that are included in their library. It calls libraries up, it calls modules up. When you include this DIR right there it has INTs for various things about directories. For instance, one of the INTs may be a utility to create a directory, MD, if you want to make a directory or display some facility of DOS, it may be included in this particular header file. And this header file has all the preliminary set-up, parameter listings and things in it. And what it does,it pulls this out of a compiled library that's shift with Borland C plus plus. Q Well, let me ask you this: On this print-out, are these include - - are the programs that are quote "included", are they on the print-out? A No. Q Okay. That's all I'm asking you. Now, the programs that are on the print-out in source code, did you write those? A Yes. Q And are there any on there that you didn't write? A No. Q Okay. So when you testified on cross, something about 50% were written by you, what were you talking about? Do you recall giving that answer? A Okay. THE COURT: Wait a minute. The question is do you remember giving that answer? THE WITNESS: Yes. BY MR. OSTROWSKI: Q Well, what did you mean by that? A If I use a command, Print F, Print F, that's a function just like my command DIR. I wrote DIR, you know, I took a bunch of functions and elements and arranged them so that it would do certain things for the screen and I called it DIR. Now, Print F is no different in functionality as for a functional or command than DIR. What Print F does is it allows you to print something to the screen in a certain format. In fact, it's can be described as a formated printed output. Print-out is a function that's written by Borland C and DIR is a function written by Larry James. Q Isn't print-out - - can you find it printed here? A Right here. STR. THE COURT: Wait a minute. One at a time, please. BY MR. OSTROWSKI: Q Can you find a Print F command in there anywhere? A A lot of people would use print-outs - - by the way, I don't believe - - THE COURT: Do you find it there, anywhere? THE WITNESS: No. THE COURT: All right. THE WITNESS: They have a C print-out all the way through. THE COURT: Wait a minute. Wait for a question. BY MR. OSTROWSKI: Q Well, what does C print-F mean? A It's the same thing as print-out. If I use print-out, I can name print-outs because it's very common and I want to speak of something common to everyone. But all throughout this code instead of using Borland's print-out, I use Borland C print-out, which is the identical thing, but it's slightly different in that it uses Console I-O rather than a lower level, rather than - - it uses Console I-O, very machine specific to the IBM PC. Q Well, where are you at? A Right there. Q What function are you in in the program? A Right now I'm in my INTgoodbye. But - - Q But what page is that on? A Page 9. You can - - Q Well, let me ask the questions. Okay. Does the term C print-out appear in goodbye? A Yes, it does. Q And who put it there? A I did. And it's all part of my routine, my function. Q Okay. What you're saying is, you didn't create Print F as a word? A Right. Q As a computer function? A That's correct. Q But you did type it in here? A Yes. Yes. Q And you arranged it in accordance with the other source codes in INTGoodbye? A That's correct. Q To accomplish a certain result? A That's correct. Q And the arrangement of these source codes and the result that they achieve, did you copy that from some place? A No, I didn't. Q Where did you get it from? A I created it. Q Now, is the same true of all the other functions? Did you create them or did you copy them? A I created them. INT Goodbye is created by me and it includes a function called print-out. There's no way that a person that's going to write a utility is going to make a new function called print-out, C print-out, they're not going to write a new function. If they write a new program they would use that C print-out in a different way. If I write - - everytime I write a new program I use INT Goodbye in a different way, according to the objective. Q Did you invent the word Goodbye? A No, I didn't. Q Okay. A A print - - MR. OSTROWSKI: I have no further questions - - well, see, I don't know if you answered my question. BY MR. OSTROWSKI: Q Did you create all these other functions or did you copy them from some place? A Every function that starts with int was created by me. THE COURT: Started with what? THE WITNESS: INT; I-N-T. THE COURT: I-N-T. Okay. THE WITNESS: If it has I-N-T, and then it has open and close parenthesis and then if it has other brackets, start and stop, it was created by me. You know, that right there is INT. That right there is a name. That right there is open and close parenthesis. And right here is - - THE COURT: The question was did you create all those I-N-T functions and your answer seems to be that you created certain I-N-T functions which have other - - THE WITNESS: All - - THE COURT: Excuse me. - - which have other identifications along with them; is that right? THE WITNESS: Yes, Your Honor. THE COURT: You didn't create all the I-N-T functions or all I-N-T functions with that other garbage? THE WITNESS: Your Honor - - THE COURT: Can you answer that? THE WITNESS: Yes, Your Honor. THE COURT: How could you answer it? THE WITNESS: I was describing what a function was. THE COURT: Are all the functions, are the I-N-T functions all as you've described or are there other I-N-T functions? THE WITNESS: I-N-T can start something that's not a function. THE COURT: I know. THE WITNESS: If it's a function, I wrote it. THE COURT: All right. So any I-N-T function you wrote? THE WITNESS: That's correct, Your Honor. Every last one of them. BY MR. OSTROWSKI: Q What about CHAR space, any key? THE COURT: C-H-A-R what? MR. OSTROWSKI: Space, any key. THE WITNESS: May I see - - oh, yes. Yes. BY MR. OSTROWSKI: Q Did you write that? A I'm not sure if that's a function. Q Okay. Well, what is it? A You see - - Q What is it if it's not a function? Is it an important function? THE COURT: Well, first you've got to find out if it's a function. THE WITNESS: Where is it located and I'll tell you. MR. OSTROWSKI: Page l, I think. THE WITNESS: What I would like to say is - - BY MR. OSTROWSKI: Q Can you find CHAR any key? If not, I'll go on. A I would say it's not a function. THE COURT: Can you find it? THE WITNESS: I don't see it offhand, but - - THE COURT: All right. Your answer is, I don't see it offhand. BY MR. OSTROWSKI: Q What about Set Areas. THE COURT: S-e-t? MR. OSTROWSKI: S-e-t a-r-e-a-s. THE WITNESS: Where is it located? MR. OSTROWSKI: 34, maybe. This isn't - - THE WITNESS: Yes, I wrote that. BY MR. OSTROWSKI: Q Okay. What about Go To View? A I wrote that. Q What about Get DIR? A I wrote that. Q Character - -C-h-a-r star help lines, 4,000? A I wrote that. I would like to clarify what a function is. THE COURT: Wait a minute. Maybe we don't care. MR. OSTROWSKI: I don't really care. THE WITNESS: Okay. Because I wrote all the - - THE COURT: Wait a minute. BY MR. OSTROWSKI: Q And you wrote all the I-N-T-s? You wrote all the ones that begin with I-N-T? A Every last one of the functions. Q And almost all of them begin in I-N-T, right? A That's correct. MR. OSTROWSKI: I have no further questions. RECROSS-EXAMINATION BY MR. KITCHEN: Q Now, with respect to uploading this Borland C plus plus program, you said you had permission to do so? You were authorized to do so? A What do you mean? Q Were you authorized - - A It was my program. Q Were you authorized to upload it? Oh, you're saying the Borland C plus plus is your program? A Yes. The package that Richard bought, he bought Borland C plus plus and gave the program to me. Q So you are the registered owner? A I already told you what I do with registration cards. Sometime, maybe I'll change. Q So it was given to you and you still have the registration card? It's in your three-inch stack and you've never sent it in; is that correct? A No. That's not correct. Q Do you have the registration card? A No, I don't. Q Why not? Who has the registration card? A Richard has it. Q He sent it in; didn't he? A I don't know what he did with it. Q Okay. So he never gave you the registration card? A No. No. Q So, if you wanted to get registered you couldn't. A He gave me a dollar with a string attached to it and yanked it. Q Hmm. You're not talking literally, though, are you? A It seems very literal. Q You mean literally? He literally attached a string to the C plus plus program when he handed it to you and later he jerked on the string; is that what you're saying, literally? Don't you know now that Richard - - THE COURT: Wait a minute. Do you want him to answer or are you withdrawing the question? MR. KITCHEN: I'll withdraw the question. BY MR. KITCHEN: Q Don't you know now that Richard is, in fact, the registered owner of Borland C plus plus? A I gave him the package back when he asked me for it. THE COURT: You know that he owns it? THE WITNESS: Yes, Your Honor. BY MR. KITCHEN: Q And then you deleted it from your system? A I - - that - - Q Yes or no? A It was never installed on my system. Q Yes, you did. You uploaded it to your system, didn't you? A Yes, I did. Q Okay. So did you delete it then? A Yes, I did. Q Uh-huh. Now, when you wrote the program or compiled the program that's Plaintiff's l8, you said it has these libraries, these include lines near the top? A Uh-huh. Q Those are all libraries that are supplied with Borland C plus plus, right? A Yes. Q But, in fact, you didn't use Borland C plus plus to compile this program; did you or did you? A Yes, I did. Q Okay. Didn't you testify on direct examination some weeks ago that you never used Borland C plus plus to compile this program; isn't that what your testimony was then? A No. Q What did you testify then? A That I don't program in C plus plus. Q Okay. But you also said that you didn't compile in C plus plus; didn't you? A No. Q You said you used somebody else's program for compiling, not the Borland, you used somebody else's; didn't you? A No. I told you as of January in l99l I was using Borland C plus plus for one of my customers. And I always used that for my customer. Borland C - - I used that compiler. You can compile straight standard and C programs. I do not write and compile - - I do not write - - Q Didn't you say you compiled this over at a friend's house? A No, I didn't. Q You didn't? THE COURT: Over whose house? MR. KITCHEN: A friend's house. THE COURT: Oh, a friend. THE WITNESS: No, I didn't. I said I used a - - BY MR. KITCHEN: Q Where did you compile that program? A On my computer. Q On your computer? A Yes, I did. Q Using Borland C plus plus? A That's correct. Q That you uploaded from Richard's computer? A No, that is incorrect. I never did use that program. I never did use it. Richard gave me the books. I have the books. I never had the package, never had the package. I came over his house, this and that, one day. What I did, now I've been using this program for eight months. Richard always had the disk and I'd say, well, let's zip up these disks and store them - - Q So you compiled it using Borland C plus plus, but it was from somebody else who gave you Borland C plus plus? A That's correct. Q Who gave you Borland C plus plus? A Leo Bicknell. Q Okay. Is that your nephew or something? Leo Bicknell? A No. That - - Q Oh, this is a friend, right? A That's one of my students who I sold a computer to. His father is the aircraft controller. Q And he bought you Borland C plus plus? A I was tutoring his son. Q Well, yes. And he gave you Borland C plus plus? A His son gave it to me. Q All right. And, of course, it's registered in his name. A In January. Q Of course, it's registered in his name? A Yes. THE COURT: January what? THE WITNESS: In January of '9l. MR. KITCHEN: Okay. BY MR. KITCHEN: Q So you've gotten two Borland C plus plus. One was registered in Richard's name and one was registered in Leo Bicknell's name, right? Right? A That's correct. Q Okay. But neither one of them is registered in your name. A (No response) Q You're still not a registered - - THE COURT: Wait a minute, wait a minute. Do you want him to answer that if it's a question? MR. KITCHEN: Well, it's not really a question. THE COURT: I didn't think it was. Go ahead. BY MR. KITCHEN: Q So you don't - - you still do not have Borland C plus plus registered in your own name? A Let me see - - did I send in that regis - - Q Answer yes or no? A I have it registered in my name. Q When did you do that? A Probably around October. THE COURT: Of '92? BY MR. KITCHEN: '93. THE COURT: Or '93? BY MR. KITCHEN: Q Last month? A No. I think it was '9l. October of '9l. Q October, '9l? A Yes. Q All right. When did Leo Bicknell give you Borland C plus plus? A Around Christmas in '90. Q Christmas of '90. December of l990? A Yes. Q Okay. That's when - - and it was Borland C plus plus, huh? A Yes. Q Okay. Was Borland C plus plus actually available in December of l990? A Well, actually it was - - Q Yes. Was it or wasn't it? Yes or no? A Yes. Q It was? A It was terrible to see. THE COURT: It was what? THE WITNESS: Terrible to see. THE COURT: Terrible to see? THE WITNESS: It's the same package by the same company, yes. BY MR. KITCHEN: Q Then the answer is no? Borland C plus plus was not available in December of l990? A You can say that. It's the same - - Q Well, the point is did - - THE COURT: If he said that would it be true? THE WITNESS: Yes. BY MR. KITCHEN: Q Okay. So, therefore, you couldn't have had Borland C plus plus given to you by Leo Bicknell in December of l990, could you? A Yes, it was the same package, yes. Q Did you get Borland C plus plus from Leo Bicknell in December, l990? A It was the Borland C plus plus. Q Did you get - - A No. Q Thank you. MR. KITCHEN: Exhibit 70, Your Honor, which could be called a message print-out. (A message printout was marked Plaitiffs Exhibit 70 for Identification.) BY MR. KITCHEN: Q Let me show you Plaintiff's Exhibit 70 and ask you if you recognize any of the material on there? A I'm looking at it. Any questions? Q Do you recognize it? A Yes, I do recognize it. Q Well, what is it? A It's a response to my inquiry to the support people of compu-serve. Q Is that an accurate representation of what their response was? A Yes, it is. Q Okay. What does the second paragraph say? A This product is the same user's product. It is in violation of licensed agreement to run multiple courses at the same time, additional manual sets are not made available for purchase. And - - Q You had asked for a second set of manuals, right? A That's correct. Q And they turned you down, right? A Right. And then Richard - - Q Okay. That's all I asked you. MR. KITCHEN: That's all I have, Your Honor. THE COURT: Anything, Mr. Ostrowski? MR. OSTROWSKI: No, Your Honor. THE COURT: Thank you, Mr. James. (Witness excused) THE COURT: All right. It's 4:l6. I don't know if it's worth starting with anybody else. You may if you want. MR. OSTROWSKI: Your Honor, I'm finished with my case except for getting my exhibits in order and - - THE COURT: All right. Let me go through the exhibits that I have in evidence. (Whereupon, at 4:l6 P.M., the hearing in the above- entitled matter concluded) I N D E X WITNESS: DIRECT CROSS REDIRECT RECROSS Larry James 1367 1493 1516 EXHIBIT NO. FOR IDEN. IN EVD. Plaintiff: 69 1488