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A.J. Nichols
Napster judge's tech guru
Neutral witness to explain arcana

Benny Evangelista, Chronicle Staff Writer
  Monday, April 30, 2001

A.J. "Nick" Nichols is known for his ability to make the most complicated technology easy to understand.

Now, Nichols has the job of breaking down the most widely watched issue on the Internet today: whether Napster has the technology to block enough songs to satisfy the record industry.

U.S. District Judge Marilyn Hall Patel has appointed the Mountain View computer consultant as a neutral expert in the copyright infringement suit filed by the world's biggest record labels and music publishers against Napster Inc.

Patel, who is clearly frustrated with the Redwood City company's current efforts to police itself, hinted weeks ago that she was thinking of ordering the online music-sharing system to shut down.

But before taking such a drastic step, Patel said she will rely heavily on Nichols' advice to determine if Napster was indeed being truthful and is doing all it can do within the bounds of its own technology, or whether there are other technologies available that can do a better job.

"I don't think she can find a more qualified individual for that assignment, " said Joe Kouri, a Palo Alto attorney who has used Nichols' services as a forensic computer expert.

"As a forensic investigator, he will be able to look at what they're doing to give the court some comfort whether or not Napster is making a good faith effort," Kouri said.

Nichols, who declined to comment for this story, is president of Probitas Corp., a Woodside computer consulting firm in he founded in May 1981.

Patel and attorneys for both sides held their first teleconference with Nichols on April 13.

Nichols has served the federal courts in the past as a neutral expert, notably in the long-running civil suit filed by Sun Microsystems, which accused Microsoft Corp. of violating trademark agreements by shipping its own version of Sun's Java programming language. That case, filed in 1997, ended this past January when Microsoft agreed to pay $20 million to Sun to settle the suit.

Nichols also served as an expert in a trade secrets lawsuit between Avant Corp. and rival Cadence Design Systems Inc. In addition, he was an expert for the Supreme Court of Singapore in the mid-1990s in a patent-infringement suit between Creative Technology Ltd. and Aztech Systems Inc.

"He's well-known and well-regarded as somebody who not only understands the general technology in this field very well, but knows how to explain it very well," said James Pooley, an intellectual property and technology attorney with the law firm Gray Cary of Palo Alto.

"Among the lawyers who work in the high-tech field, he's quite well- regarded," said Pooley, who has hired Nichols as an expert for cases in the past.

Experts such as Nichols normally operate in the background of a major case. But Napster has become an Internet cause celebre, drawing extraordinary interest from around the world. The case has already had a dramatic effect in reshaping the way consumers will get their music, movies and other entertainment in the future.

Napster is a software program that lets users share the MP3 songs they have stored on their computer hard drives. Napster claims it has 71 million worldwide registered users, who, until court-ordered filtering went into effect, used to enjoy easy access to a virtually unlimited selection of recorded songs for free.

The $40-billion-a-year music industry, however, labels Napster nothing but a haven for mass music piracy. The world's biggest record labels and music publishers sued Napster in December 1999 for copyright infringement. Artists such as rapper Dr. Dre and rock group Metallica later filed their own lawsuits.

Patel last month issued a preliminary injunction ordering Napster to block songs that are protested by the labels and artists that are suing Napster.

Napster attorneys argue that the company's technology has blocked 1.7 million song files and the number of files shared by users has dropped by 50 percent. The company contends that it has filtered a majority of the songs and artists that the music industry wanted blocked, but that the basic technology behind the Napster program makes it difficult to catch every one of the millions of contested songs being shared by Napster members.

But the Recording Industry Association of America, which represents the biggest record labels that are suing Napster, counter that the filtering is completely ineffective. Patel herself called Napster's efforts "disgraceful."

The record industry wants Patel to order Napster to install technology that can recognize the individual digital signature in each MP3 file, or to drastically change its system to recognize only those songs that individual artists authorize for sharing.

Nichols was offered as an expert by Napster and accepted with no objections by the record industry.

Nichols earned a master's degree in electrical engineering from Stanford University in 1962, and a doctorate in electrical engineering from that same institution in 1965. He also has degrees in electrical engineering and business management from the University of Colorado.

He held various management positions with Intel Corp., American Microsystems Inc. and Millennium Systems Inc. before founding Probitas Corp.

Kouri said he hired Nichols as a high-tech forensic expert in a recent case in which one company accused another company of stealing intellectual property.

Kouri said Nichols brought to the case his own proprietary software program that can search the deleted files of computer hard drives and locate even the smallest fragments of relevant documents.

Kouri said Nichols' expertise with searching software could be helpful in determining what kind of technology Napster can use to filter contested songs.

"My guess is the judge is feeling she needs a technical expert to step in to look at what Napster is doing and suggest ways to make the process faster," Kouri said.

Nichols' experience as a mediator may also come into play in the Napster case. He works as a mediator for Mediation Works of San Jose and the Peninsula Conflict Resolution Center of San Mateo.

Jennifer Marshall, the Peninsula center's mediation programs manager and volunteer coordinator, said Nichols has worked as a volunteer mediator for the center since last October.

Nichols is one of a corps of volunteers who step into a wide variety of contentious issues, including consumer rights problems, teen-parent conflicts and tenant-landlord disputes.

"It might be a neighborhood dispute about a barking dog," Marshall said. "Our mediators don't act as judge or jury. We help them communicate with one another."

E-mail Benny Evangelista at

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