taught a federal judge how Java works, he dissected Sound
Blaster for Singapore's Supreme Court, and now A. J. Nichols
is up to his neck in Napster
Tekla S. Perry, Senior Editor
For a year
now, the fortunes of Napster Inc. have risen and fallen to
the beat of a judge's gavel. The on-line music-sharing service
is being sued in the Northern District of California by a
group of record labels, and as the suit progresses, Marilyn
Hall Patel, the presiding U.S. District Judge, has issued
several court orders requiring Napster to block copyrighted
material. One even briefly shut the service down entirely.
Still to come is a full trial, in which the Redwood City,
Calif.based company could end up paying millions to
case is being closely watched, because its outcome will affect
the long-term development of peer-to-peer technology, not
only in the recording industry, but in the movie and publishing
industries as well.
Napster watchers rarely notice the one person, besides Judge
Patel, who is pivotal in the case: A.
J. ("Nick") Nichols.
engineer and long-time IEEE member, Nichols was appointed
by the court in April as a neutral expert. This means that
both sides of the case agreed that he could act as an advisor
to the judge on the technical issues of the case. Typically,
a neutral expert does not testify in court; his or her conversations
with the judge are private, which can bother some lawyers.
The role is outlined in the U.S. Federal Judiciary Code's
Rule of Evidence 706, which says, "The court may appoint expert
witnesses of its own selection," and Rule of Civil Procedure
53, which says, "The court may appoint a special master....the
word 'master' includes a referee, an auditor, an examiner,
and an assessor."
of a neutral expert acting as a technical advisor, however,
is not clearly codified. It can take several forms, including:
a teacher with a class of one or two (the judge and/or the
law clerk); a tutorial presenter, giving a lecture on the
technology before a jury; or an independent investigator,
whose analysis results in a written or oral report to the
experts are of growing importance. With the complexity of
today's technology, said U.S. District Court Judge Ronald
M. Whyte, of the Northern District of California, "we judges
certainly need ways to educate ourselves so we can make the
who has spent his 40-year career in computer, semiconductor,
and circuit design, including the last 16 years as an expert
witness in technical litigation, is recognized as one of the
best neutral experts. Said Whyte: "Nick is constantly concerned
with making sure that everything he does is above board and
impartial. He is extremely careful not to express opinions
on who is right or who is wrong; he doesn't advocate for a
particular side, he just explains the technology."
said Ron Schulman, a partner at the law firm Wilson, Sonsini,
Goodrich & Rosati, in Palo Alto, "is smart and does the
work. You can trust that he has examined everything that he
needs to examine before forming an opinion."
can go on for a considerable time. Nichols was involved in
Sun v. Microsoft Java infringement case for
two and a half years. His involvement with the Cadence
v. Avant! trade secrets case started in 1996 and
is still going on. The work, however, is generally not continuous.
There is usually a time in the beginning in which the expert
must come up to speed. After that, he or she only helps only
when the judge needs assistance. Long periods can go by without
an expert doing anything and then something will happen (say,
a hearing on a motion) that requires assistance. Most work
by neutral experts, in particular, is before trial when the
judge must deal with injunctions and motions.
Napster case, Nichols was asked by Judge Patel to look at
the blocking technology being implemented by the music-sharing
service to determine whether or not the company's engineers
and computer scientists were doing everything they could to
block works identified as copyrighted by the recording industry.
At this writing, in early September, Napster's Web site has
the following notice: "The ability to transfer files has been
disabled. We're still fine-tuning our noticed-works filters
and hope to begin testing them again soon."
what Nichols contributes to the case is up to the judge, and
at this writing he would not discuss specifics, though he
indicated his work on Napster has crowded his personal life.
Recently Napster filed a brief with a U.S. appeals court complaining
that Nichols' role has become too large, but at this writing
no action had been taken on that brief.
Nichols' first service as a neutral expert began in 1992 in
arbitration in San Diego, Calif., concerning the use of a
company's source code. However, he had been appearing as an
expert witness in technical cases since 1986. The judge in
San Diego, stumped, wanted an independent expert to look at
the code and give an opinion. Both sides submitted a list
of names, and Nichols was listed by both. He was hired, analyzed
the material, and wrote a report. "I have no idea to this
day," he said, "what the decision was." Generally, rulings
that come out of arbitration are not made public.
use neutral experts infrequently, so it was no surprise that
four years passed before Nichols' next neutral case came up,
in 1996. It was highly visible, pitting Creative Technology
Ltd. against Aztech Systems Ltd., with Creative accusing Aztech
of copying the firmware in Creative's Sound Blaster audio
output cards for PCs. Creative originally filed suit in the
United States, but, since both companies are based in Singapore,
it was tried there, albeit with U.S. lawyers working behind
the scenes with British and Singaporean counsel and with U.S.
court that first heard the case found Aztech to be innocent.
It was only when Creative appealed to the Singapore Supreme
Court that Nichols was called in. "The justices wanted to
have their own expert to help them," he said, "because they
felt that it was important to get this right." After going
through a 1.5-meter-high pile of documents, listening to the
appeal, and meeting with the justices, Nichols wrote a report
at the justices' request. The Supreme Court reversed the lower
court's decision and found for Creative.
fall of 1996, before his work on Creative v. Aztech was
complete, Nichols signed on as a neutral expert for the U.S.
District Court for the Northern District of California in
the case of Cadence Design Systems v. Avant!, in
which Cadence Design Inc., in San Jose, Calif., charged Avant!
Corp., in Fremont, Calif., with stealing source code for routing
software. This summer, a separate criminal proceeding on this
same matter was finally settled, with Avant! ordered to pay
Cadence $182 million and some of Avant!'s executives sent
to jail. Nichols, though, had nothing to do with the criminal
case is still active. Nichols, though, worked on it only for
several months. He stepped down from the case after disclosing
a potential conflict: he was considering selling the consulting
business he then owned, and he wanted to start negotiations
with an engineer who was involved with the trial as an expert
for Avant! But he ended up not going through with a sale at
In 1998, Nichols took on what was, until recently, his most
visible case, Sun Microsystems v. Microsoft,
in which Sun Microsystems Inc., in Palo Alto, alleged that
Microsoft Corp., in Redmond, Wash., was abusing its license
for Java technology and wanted it to stop. In this case, he
spent most of his time making sure Judge Whyte understood
how Java worked--what a virtual machine is, what an interpreter
is, and what native code means, because one point being disputed
was how Microsoft was accessing native code.
Java program can run on any machine, with the machine-specific
Java interpreter handling the translation. But some applications
(such as those that directly control a device) require that
machine-specific code be executed, and in that case the program
bypasses the Java interpreter and calls routines in the machine
language of the specific computer. Sun provided a mechanism
in Java for software developers to do that; Microsoft's developers
were ignoring that mechanism in favor of one they developed
internally. Sun was concerned that if nonstandard forms of
Java begin to proliferate, the portability of the open standard
would be affected.
the basic concepts of Java," Whyte told IEEE Spectrum,
"and would help me understand what each side was saying when
it was talking about aspects of the technology."
Nichols never said was whether or not he thought Microsoft
was going outside the boundaries of its contract with Sun.
"One of the first rules to remember as a neutral expert,"
he said, "is that you are not the judge. You don't tell judges
how to decide the case. That is not your job. The decision
will be based on the law and you don't know the law; you're
not even a lawyer, much less a judge."
feels strongly about this charge, though there are no legally
binding guidelines for neutral experts. He has written a draft
of such guidelines, which, he hopes, some day may be used
by the courts.
rules that he drafted are those that I follow generally,"
Judge Whyte told Spectrum. Whyte certainly feels that
Nichols follows such rules himself. "I have no idea to this
day if he felt that Sun's or Microsoft's arguments were stronger."
The case was settled earlier this year, with Microsoft paying
Sun some US $20 million.
A career as a judge's advisor was not a path Nichols sought
out. Rather, he wandered into it, led by his personal strengths
and weaknesses. He is considered smart and analytical, but
has a hard time dealing with corporate hierarchies, whether
as a manager or a subordinate.
BS business degrees in hand from the University of Colorado,
Nichols started his career in 1960 as a research scientist
in the graduate study program at Lockheed Missiles & Space
Co., Sunnyvale, Calif., where he initially was assigned to
a project analyzing the characteristics of distributed analog
circuits. He soon asked to be moved to a computer group, where
he did research in switching theory and worked on database
nearly nine years at Lockheed and MS and PhD degrees in electrical
engineering from Stanford, he began itching to move to a smaller
company, where he could be involved in development that clearly
led to a product, rather than simply to the publication of
papers. He found a likely candidate through a newspaper advertisement,
Novar Corp., in Palo Alto, and joined the founding group as
director of systems development. Novar was developing a smart
typewriter--an electrical typewriter with a tape drive to
Nichols has earned a reputation as a smart and extremely ethical
the design he had taken over at Novar didn't work reliably,
Nichols followed his standard operating procedure when faced
with a technical problem: he "crawls into a hole," that is,
he thinks about nothing but the problem until it is solved.
a few weeks of avoiding phone calls, visitors, and as many
distractions as possible, he completely redesigned the electronics
for the product. This included a method of creating a variable-length
buffer, which earned him his first patent.
Novar was sold in 1972 to GTE Information Systems, then in
White Plains, N.Y., Nichols was quickly reminded why he disliked
big companies. "It was frustrating to have a boss across the
country, and to have to get five signatures before doing anything,"
he said. He soon left and joined semiconductor manufacturer
American Microsystems Inc., then in Santa Clara, Calif., as
director of engineering, where he was responsible for a microprocessor
getting on board, however, and checking out the activity in
his group, Nichols made a tough decision--he killed off most
of the projects. "That was hard," he told Spectrum.
"Sometimes I think I'm too honest. But they were having a
very hard time making the designs work, and even if they did
get them to work, I didn't see a lot of market potential for
ended up second-sourcing microprocessors from a Motorola Inc.
group in Phoenix, Ariz., but, to Nichols' frustration, American
Microsystems didn't support those products well. In 1975 he
decided to leave for Intel Corp., Santa Clara, figuring that
it would be nice to work for a company that despite its large
size understood the microprocessor business.
manager of applications engineering, Nichols' first task was
to ensure that future chips better met customer needs. So
he tied the 20 or so field engineers who worked with customers
closely into the development process. He set up quarterly
meetings between the design and field engineers and started
a technical publications operation for the microprocessor
an opportunity Intel had with consumer electronics manufacturer
Magnavox (now part of Royal Philips Electronics), prompted
Nichols to crawl into a hole again. Magnavox was, in 1976,
designing what was to be the successor to its first home video-game
systems, and Intel wanted to provide the microprocessor. Nichols
had roughed out a design for a peripheral chip that would
improve the cost and performance of games.
scheduled to present this design to the Magnavox team on a
Monday morning. But that Friday he realized that his design
was fatally flawed. He shut himself off from the world Friday
night. "I locked the door," Nichols explained, "unplugged
the phone, and didn't talk to anybody. I didn't even get out
of my pajamas." Monday morning he emerged with a new design.
That was his second patent, for a video-game display circuit
that handled the display of the moveable objects now called
on to form an Intel group designing peripheral chips, and
later took over a project to bring a test system for microprocessor-based
systems to market. The test system didn't sell, the project
was killed, and Nichols in 1978 moved to Millenium Systems
Inc., in Cupertino, Calif., at that time, a company that made
microprocessor-based design equipment. The job, vice president
of engineering with some 53 people under him, was a step up,
but it turned out to be a bad fit.
not good at being a subordinate or supervising other people
on a day-to-day basis." He left Millenium about two years
later, this time without another job to move into. He did
have a job offer from the Datachecker division of National
Semiconductor Corp., Santa Clara, again as a manager, supervising
125 people, but he turned it down.
he took on some consulting work from the Datachecker group,
which designed and manufactured point-of-sale systems, figuring
that the consulting would tide him over until he found a job
he really liked.
many projects he worked on for National was a supermarket
scanner. At the time, the recognition process for bar codes
was complicated and the Datachecker design required six printed-circuit
boards. "I found a way of doing it, with fewer steps and put
it into three chips. It was a nice design--I should have patented
it," he said.
soon, Nichols had several other clients, and a year later,
he incorporated his consulting company as Probitas Corp.,
Mountain View, Calif.
start off with the idea that I was going to be a consultant,"
Nichols said. "I said, 'I don't know what I'm going to do,
but obviously I don't like management.' And what I found out
is that the nicest thing about being a consultant is that
you don't have to do management. I can do what I do best,
which is making a contribution with my skills in technology."
Nichols insists he never did become a manager again, he did
add people to his consulting group. "The work just kept coming
in, and suddenly I had a lot of it. So I brought more people
on board. But I hired people who I knew would do good work
eventually stabilized at about half a dozen people, doing,
for the most part, design and technical troubleshooting. One
other early project for National, for example, involved the
computer system that runs cash register terminals. These systems
worked in prototype and in initial manufacture, but later
versions didn't work properly. Nichols was hired to find out
out," he said, "that whoever designed it didn't design it
for the worst-case characteristics of the chips involved,
only for the optimal ones. So if you got the right chips and
they were fast enough, it would work. If you got chips that
were slower, but met the specifications, it wouldn't." The
problem had to do with the speeds of different circuit paths;
if a certain path was faster than another one, the system
failed. These problems, under the generic name of race conditions,
generally occur because the signals on two or more circuit
paths combine at some point. If the signals arrive with the
wrong timing (the signal in one path gets there too late),
a short signal spike can occur and cause a malfunction.
Nichols was continuing to pursue this type of traditional
consulting work, when, in 1985 or so, he was asked to handle
a different kind of task, and his career path took an unexpected
account executive, working for an advertising agency with
a number of high-tech companies as clients, asked for his
help. "These guys come in," she told Nichols, "and we don't
know what they are saying. We need some class or something
to teach us what this stuff is about!" At her request, Nichols
put together a two-evening seminar entitled "Buzzwords with
Byte," at which he explained what the inside of a computer
looks like, how a semiconductor device is built up from different
layers, and a few other technology basics. He began giving
the course regularly.
an attorney who had taken his class invited him to speak at
a computer law conference, giving an abbreviated form of his
class. After he finished speaking, one of the lawyers in the
audience approached him and asked, "Have you ever been an
that?" Nichols responded. After the lawyer explained it meant
acting as a technical expert for one side in a civil suit,
Nichols agreed to take on an assignment.
I found out," he said, "that I do it well."
a reasonably legal mind," David Simon told Spectrum.
Simon, now a software engineer at GVO Inc., Palo Alto, was
one of the first engineers to join Nichols at Probitas. "He
will read the exact words of something and understand how
lawyers will treat that. I also would imagine that he is extremely
difficult for an opposing attorney to ruffle or move off his
position; he does a huge amount of research, and by the time
he is ready to give evidence, he is very sure of it."
locked the door, unplugged the phone, and didn't talk to anybody.
I didn't even get out of my pajamas
first case as an expert witness had to do with a patent involving
printer technology, owned by Wang Laboratories Inc., in Billerica,
Mass., supposedly being infringed upon by Applied Computer
Science Inc., in Seattle, Wash. Nichols was hired in 1986
by the attorneys for the Seattle company, and given reams
of documents to study. He determined that one of the documents,
in his opinion, demonstrated prior art, and gave a deposition
explaining why. Later, Wang Laboratories settled the case.
expert witness work quickly came Nichols' way, and he developed
some technical tools to make his job easier. In particular,
he produced software for searching disks for fragments of
deleted files that can prove to be incriminating--like source
code, often in contention in trade secrets cases. (He doesn't
market these tools, just uses them for his work.)
time, Nichols began to earn a reputation as a smart--and extremely
judges define experts as a man you pay to speak your way,"
said attorney Schulman, who first encountered Nichols as an
expert witness against one of his clients. "[But] Nichols
is not a man who speaks your way; he speaks the way he sees
is thriving on his expert witness work, so much so that, in
February, he sold Probitas to GVO in order to free up more
time for it and his public service activities--he tutors high
school students and volunteers as a mediator in civil disputes,
including nontechnical ones.
thing I like is that you never know what you're going to be
doing until the phone rings; it's always something brand new.
I didn't know much about Java when I took the [Sun
v. Microsoft] job. I didn't know how peer-to-peer networking
worked a few months ago. I didn't know anything about audio
fingerprinting until recently." Audio fingerprinting in music
files is one of the technologies Napster is using to identify
copyrighted material for blocking.
said being an expert witness takes a lot of skill. "Not only
do you have to be technology savvy, you have to be capable
of explaining that technology to lay people. I think I'm good
good, said Ajayi Lawrence, a junior at Palo Alto's Henry M.
Gunn Senior High School, whom Nichols voluntarily tutors in
math as part of a program called Foundation for a College
Education. "I don't know how he does it," said Lawrence, "but
when he explains something to me, it makes total sense, even
when I didn't understand it in class."
like the expert role," Nichols continued. "There is nothing
more challenging than giving a deposition across from a really
good lawyer. Your job is to tell the truth, but not give the
store away, or let the attorney twist your words around. You
must be on your toes for whatever time it takes, and it can
a neutral expert is the best of all, he said, " because, in
some small way, I think I'm helping to make the legal system
better. I think that in all the cases, I've helped people
understand the technology so they could make the right decisions.
This is something you can't always do if you're representing
one side or another. It is rewarding."
After being selected as the neutral expert on the Napster
case this spring, Nichols cleared his calendar of almost everything
is a lot different from anything I've been involved with before,"
he told Spectrum. "I feel an enormous sense of responsibility
to do the right job, because Napster is talking about the
future of the company on the one hand, and the recording industry
and artists are talking about millions of dollars on the other."
is a heavy burden," he said.
is one Nick Nichols is ready to carry.