Arbortext Royalty Fraud: Chapter Seventeen

High Noon, Pardner

 

The copyright law suit against Kevin Dwan, with its subordinate partnership issues,  had burbled slowly along since the previous June with nothing much happening that required our attention. Except writing checks each month to our lawyer. The court system was in no hurry to devour us.

In the early months of 2003, however, this crawling pace began to quicken as the date was set for the trial and depositions of the two combatants were scheduled. Absurdly enough, this change of focus from Arbortext to the evil Mr. Dwan came as a sort of relief. The cast of villains at Arbortext were a sleazy bunch, but they were way off in Michigan and I could only get my hands around their throats metaphorically. Very unsatisfying. Dwan was here in the flesh, though. Finally I had a problem I could deal with in the classic American way: High Noon, pardner. See you in the street.

The first to be deposed was yours truly. This required driving up from Concord to Bernheim’s law office in Santa Rosa. My old stomping grounds where I had spent about seventeen years of my early adult life, somewhat recklessly I suppose. A little déjà vu to warm my spirits as I motored up through the farm lands and grape vineyards of Sonoma County, reluctantly passing on a few wine tasting spots along the way.

I had never been deposed before, so I was a bit nervous. Not unduly, though, since there was nothing I had to lie about or cover up. The law suit was not about what I had done or not done. It was about what Dwan had done. And the day did not contain any particular surprises for me. It was as deadly long, boring, and tedious as I had imagined it might be.

Bernheim tried to rattle me at one point by playing a tape recording Dwan had made of one of our phone calls where I was drunk and cussing and angry. I don’t know what this was supposed to prove, but Bernheim seemed disappointed that it didn’t much disturb me. My character had many flaws and it was no secret or surprise to me that I could act like a gigantic asshole. Shrug. You caught me.

I was not in the mood to issue Dwan an apology, that’s for sure. In fact, sitting in the same room with him for the first time since he had slunk out of the Arbortext contract signing meeting nearly three years ago gave me a strong urge to ask Bernheim if he had a liquor cabinet in one of his desk drawers that I could guzzle from and subsequently give a repeat performance of the one that played on the tape. Under oath this time, for emphasis. The truth was the truth. Even if a bit slurred.

Dwan’s deposition came next, requiring that he and Bernheim drive down to Walnut Creek to my attorney Bill Hansen’s office. Since I was basically a spectator for this event, it was certainly a far more enjoyable day. But a bit stunning.

In the thirty-five odd years I had known Dwan, his oratory powers were universally admired and the breadth of his vocabulary bordered on amazing. He devoured books and information like an enormous sponge, carrying around one paperback after another stuffed in his back pants pocket as regularly as most people carry a wallet or a snot rag there. He was truly a learned man in every sense of the word, and his tenure on the Nevada City, California Planning Commission was marked by praise and respect. I had never once seen him at a loss for words. Quite the contrary. It was sometimes difficult to shut him up.

During the entirety of his deposition, however, he was mute and contorted and almost catatonic as he agonized for long wrenching moments over virtually every question Hansen posed to him. It was brutal to observe. I had never seen a man die in front of me before.

The man I had long considered to be my best friend, one I would have for the full length of my life, was not the shriveled and shrunken dweeb sitting across the table from me now, evading and hedging, playing dumb and forgetful, and performing like a stuttering, addled-brained doofus. The man I knew seemed no longer to exist. He was gone. And a part of me missed him, and always would. Good friends do not grow on trees. And certainly not on mine. I had always preferred one or two deep comrades, rather than many acquaintance friends. That made each of my friends quite precious, and losing one of them painful.

In early July, the day of reckoning finally arrived and it was pin striped suit time again. Strip search at the door to His Eminence’s Court Room 1 on the fourth floor of the District Court building at 1301 Clay Street, Oakland, California. Senior Judge D. Lowell Jensen presiding. Lawyer number six, so to speak. He, Bernheim, and Hansen – all in one room making anywhere from $200 to $500 or more an hour. Wow. Look what a couple of years in law school will get you. It can turn any anonymous Joe Blow into a money making machine.

The trial started on a Monday and concluded on a Wednesday the following week. Eight days of lawyer blarney! The court room was filled to overflowing each day by one, and usually only one, spectator. This fellow appeared to be a stooge planted at the scene by Arbortext’s West Coast office to observe the proceedings and pass along any pertinent poop to old Paddle Ball. The insider guts of Blueberry. Cancerous colons and all. After all, Arbortext had a very real interest in who would be owning and running Blueberry. This stooge did not wave any “We Love Dwan” signs, but it was not hard to guess who Jim Sterken was rooting for in this case and who he would rather be dealing with. Should Dwan win the day, there would be no further questioning of Arbortext royalty reports for him to fret about.

At any rate, our trial was very boring stuff. Whatever they paid this guy, it wasn’t enough. Entire days spent on the trivial lives of two jerks acting more or less unappealingly, without any real tension or high drama as would be present if murder or catastrophic evil doings were on trial.

Since I was the Plaintiff, Hansen put on our case first. This worked well for me because I was the first witness and even though I was on the stand for a day and a half, when I was through – that was it. The rest of the trial I could relax and observe the proceedings.

The only notable event during my testimony was having to rebut an Exhibit Dwan had submitted. This Exhibit was a truly pathetic effort to obscure the facts about who did the programming work at Blueberry Software, and thus strike at the heart of my Copyright Infringement claim.

When I founded the company in 1986, I also filed a copyright claim on the source code I had written which comprised the entire Blueberry product called Filtrix. No one else had contributed any code whatsoever, so I was the only claimant listed on the filing. My baby, so to speak.

By 1991, Blueberry had grown and we had hired other programmers to contribute code to the product. Reflecting this, I then filed an amended copyright claim, listing myself and Blueberry as co-claimants. That was the last filing with the Copyright Office.

Well, not quite that simple. Dwan had secretly tried to file the amended copyright himself, listing only Blueberry as the sole claimant and removing me as the sole claimant. The Copyright Office rejected this filing because I, as the only existing claimant, was the only one who could amend the original filing. I discovered this sleight of hand by Dwan when the Copyright Office sent his rejected filing back to me. I then re-filed the claim, as above, and made a mental note that Dwan was a sneaky little shit who was trying to wedge out more partnership power for himself at my expense. And in a gutless, underhanded way.

Looking back, I suppose this was the first clue that he had designs on control of Blueberry and its intellectual property. Designs that reached full blown status with his attempted takeover in 2000 and again in 2001. In 1991, though, I just shrugged it off with a “Nice try, shithead” and went on with the business of writing and directing Blueberry’s source code. And learning how to be a step-father, which was quite a bit more challenging than I had anticipated when Mary and I got married.

Dwan’s Exhibit to the court was yet another attempt at sleight-of-hand, and I’ll deal with it in the next installment.

 

To be continued . . .