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 disputed software. Paris told Censor approximately in 1983 or 1984 that DSI “bills for those things and therefore [he] shouldn’t concern [him]self with them.” Apparently Censor made no objection to this arrangement. This treatment contrasts with the arrangements made with Mobil for use of the timesharing programs which DSI concedes belong to Censor. Mobil paid license fees to Censor for the training programs, including the computer simulations, and agreed to pay separate “royalties” for the use of DSI’s proprietary software incorporated in the 1975 programs. (Ex. 18, ¶¶ 2, 6, 8, 10, 16; Dep. 351; 395–97). The parties themselves, then, treated the Alpha Micro programs as DSI’s.

Defendants explain the payments to DSI as fees “for services such as storage, maintenance and delivery of the programs and consulting in connection with the programs.” (Def.’s Mem. at 16 n. *). This interpretation, however, assumes that any new software DSI created belonged to Censor upon its creation, before DSI is paid any sum whatsoever for its efforts. Melhado concedes that the numerous changes and improvements he made to the timesharing programs automatically became Censor’s property even if they were initiated solely by DSI. (See Tr. 80–81).

I agree that Melhado’s concession lends some support to defendants’ position. But Melhado also stated that these changes belonged to Censor “because they were for the most part minor modifications to his programs.” (Tr. 80–81). Defendants contend “[t]here is no logical reason to treat the [Alpha Micro] software any differently than the earlier modifications and enhancements that became defendants’ property without written work orders.” (Def. Mem. at 14–15). In fact, they contend, the Alpha Micro programs belong to Censor even more clearly than the earlier changes because, as plaintiff’s counsel acknowledged. Censor “participated in the conversions” to the Alpha micro technology. In my view, however, the extent of DSI’s efforts in creating the Alpha Micro programs—it appears to have taken several months—qualitatively distinguishes them from the minor changes made to the time sharing programs which all concede are Censor’s. At least, it is more logical so to conclude than to find that DSI intended to expend considerable effort in creating micro computer software for Censor for free. Censor’s “participation” in the conversion appears to have amounted to knowledge and approval, and perhaps encouragement, of the project. There is no evidence he was more actively involved. Such “participation,” absent some evidence of an agreement as to how DSI was to be compensated for its efforts, speaks little to the question of ownership.

Finally, even if the agreement is stretched to comprehend situations involving the creation of software for no particular client, for new technology, the creation of the Alpha Micro programs falls outside that agreement. The agreement clearly contemplates that some fee arrangement would be made to compensate DSI for its efforts. Paragraph 6 of the agreement provides that DSI would continue to be paid for “consulting services” rendered in creating new simulation software. Defendants interpret the payments made to DSI in connection with the Alpha Micro programs as being entirely for services provided after the software was created—meaning DSI’s initial efforts in creating the Alpha Micro software were gratis. In light of the agreement’s clear reference to payments for DSI’s efforts in creating new software, this result is implausible. Since no fee was paid to DSI for creating the Alpha Micro software, the agreement’s provision for transfer of ownership cannot be considered effective as to this software.

For all of these reasons, I reject defendants’ challenge to plaintiff’s ownership of the disputed software.