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Published Thursday, April 12, 2001, in the San Jose Mercury News

Judge gets technical help

Nichols to analyze conflicting claims in Napster case

BY DAWN C. CHMIELEWSKI
Mercury News

A.J. ``Nick'' Nichols is about to be thrown into another techno-legal thicket.

U.S. District Court Judge Marilyn Hall Patel has appointed him to help her in the record industry's copyright infringement suit against Napster.

It's a familiar role for the Stanford University-trained engineer. Previously, he helped a federal judge sort through conflicting technical claims in Sun Microsystems' suit that accused Microsoft of corrupting its Java standard.

Nichols is frequently called to testify in intellectual property cases. He'll wade through conflicting claims about the effectiveness of Napster's filtering and advise Patel on alternate technologies that the recording industry claims could block more unauthorized songs.

Napster's text-based approach to filtering became a flash point in Patel's San Francisco court Tuesday when the attorney for the music publishers presented evidence that 84 percent of their songs were still available on the free music-swapping service.

That sort of courtroom animus should be nothing new for Nichols, whom federal district court Judge Ronald Whyte appointed as a neutral expert in the 1997 Sun case. Sun claimed Microsoft violated a Java licensing agreement -- and indeed, undermined the standard -- when it changed the application for the Internet Explorer browser. Microsoft agreed to pay $20 million in January to settle the case.

In the Napster case, Nichols will meet Friday with representatives from the online music service and the recording industry to talk about various approaches to blocking unauthorized songs from the Napster service.

Nichols declined to be interviewed. But mediators, lawyers and peers describe him as smart, calm and analytical.

``He's very even-tempered. He's not the sort of person who gets overly excited -- he gets down to the basic facts and lets them govern his emotions,'' said Alan MacPherson, a partner in the San Jose law firm of Skjerven Morrill MacPherson, who has used Nichols as an expert witness in technology cases. ``In some ways, that's a typical engineer: He likes to deal with objective things, things that are definable.''

Nichols received a doctorate in electrical engineering from Stanford in 1965 and holds three patents for computer memory, circuitry for video game displays and modem technology. He worked for a number of chip makers, including Intel, where he supervised the design and marketing of microprocessor test equipment. For the past 20 years, he has worked as a consultant for the Woodside-based firm he started, Probitas.

Howard Lloyd, director of San Jose-based Mediation Works, said Nichols has done extensive work as an expert witness. ``He strikes me as a very thoughtful and articulate person who would not shoot from the hip, but dig in and carefully examine the issues,'' Lloyd said. ``He has the ability to digest complex issues and then describe and discuss them in understandable terms.''

Nichols even worked to resolve disputes in the professional organization -- PATCA -- for professional and technical consultants. He was the first to meet with clients to discuss disputes with their consultants.

``The disputes which have risen to board level have been very few and far between. That's largely Nick's responsibility and his effectiveness in that role,'' said board member Ken Dinwiddie of Dinwiddie Associates in Palo Alto.


Contact Dawn C. Chmielewski at dchmielewski@sjmercury.com or (800) 643-1902 .

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