Operating In Neutral
He 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
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 record companies.
The Napster 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.
But Napster watchers rarely notice the one person, besides Judge Patel, who is pivotal in the case: A. J. ("Nick") Nichols.
An electrical 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."
The role 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 judge.
Neutral 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 right decision."
And Nichols, 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."
"Nichols," 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."
Cases 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.
In the 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."
Exactly 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.
Shifting into neutral
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.
Name: A. J. ("Nick") Nichols
Present position: independent consultant
Birthplace: Erie, Pa.
Family: wife, Linda McPharlin; daughter, Michele Taylor; two grandchildren
Education: BSEE and BS business management, 1960, University of Colorado, Boulder; MSEE, 1962, and PhD, 1965, Stanford University
Doctoral thesis: "Multiple Shift Register Realizations of Sequential Machines"
Most recent book read: George Eliot's Middlemarch
Computer: IBM Thinkpad
Favorite restaurants: Mama's, Cafe Jacqueline, and Postrio, all in San Francisco
Leisure activities: golf, tennis, reading, skiing
Car: Audi Quattro
Organization memberships: IEEE, Association for Computing Machinery, Professional and Technical Consultants Association, Palo Alto Rotary Club
Judges 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. experts testifying.
The lower 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.
In the 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.
The civil 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 that time.
Jumping into Java
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.
A pure 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.
"He explained 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."
What 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."
Nichols 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.
"Those 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.
Twists and turns
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.
pro02 BSEE and 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 retrieval systems.
After 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 record data.
A.J. Nichols has earned a reputation as a smart and extremely ethical expert witness.
When 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.
After 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.
After 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 design group.
After 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 the products."
The company 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.
As Intel's 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 group.
Then 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.
He was 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 sprites.
He moved 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.
"I'm 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.
Instead 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.
One of 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.
Pretty soon, Nichols had several other clients, and a year later, he incorporated his consulting company as Probitas Corp., Mountain View, Calif.
"I didn't 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."
While 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 without supervision."
Probitas 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 why.
"It turned 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.
"Buzzwords with Byte"
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 turn.
A woman 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.
One day, 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 expert witness?"
"What's 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.
"And I found out," he said, "that I do it well."
"He has 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."
"I locked the door, unplugged the phone, and didn't talk to anybody. I didn't even get out of my pajamas"
Nichols' 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.
More 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.)
Over time, Nichols began to earn a reputation as a smart--and extremely ethical--expert witness.
"Some 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 it."
Nichols 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.
"One 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.
Nichols 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 at that."
Amazingly 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."
"I also 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 take days."
Being 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."
Then came Napster
After being selected as the neutral expert on the Napster case this spring, Nichols cleared his calendar of almost everything else.
"This 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."
"This is a heavy burden," he said.
But it is one Nick Nichols is ready to carry.
To Probe Further
Further information on the Sun/Microsoft Java case is available at http://www.techlawjournal.com/courts/sunwvmsft/Default.htm.