[Commons-Law] Kill Bill?

[Anasuya Sengupta]

 From clevescene.com
Originally published by /Cleveland Scene/ Mar 30, 2005
©2005 New Times, Inc. All rights reserved.

<http://clevescene.com/issues/2005-03-30/news/feature_print.html#>

*Kill Bill*
Microsoft's army of lawyers was no match for a kid from Kent State.
*BY DENISE GROLLMUS*

Ben Smallridge
 

 

Denise Grollmus
Microsoft threatened to take David Zamos's 2002 Ford Escort to recover 
$143.50 in eBay profits.  

 

Getty Images
Bill Gates' software empire accused Zamos of unfair competition.  

 


Zamos tangled with Alex Arshinkoff (above) before taking on Bill Gates.  

 


By forcing Zamos to keep the software, Microsoft left him with no option 
but to sell it on his own.  

 

Denise Grollmus
After Zamos went to the press, Microsoft changed its tune.  

 

David Zamos doesn't look as if he could single-handedly humiliate the 
world's largest software maker.

The well-built 21-year-old sips a jumbo cup of Starbucks coffee in the 
University of Akron's student union. He's looking dapper in pin-striped 
slacks, a navy pea coat, and a necklace of wooden beads that hugs his 
wide neck.

Thanks to massive doses of caffeine, Zamos (whose name rhymes with 
"famous") anxiously taps his Camper lace-ups against the table. A laptop 
sits to his right, a fat black binder to his left.

The only thing setting him apart from the other late-night crammers is 
that his notebook isn't filled with study guides. It's overflowing with 
documents from the federal lawsuit Microsoft brought against him on 
December 21.

For the past four months, Zamos has been fighting four high-powered 
attorneys. They claimed he violated trademark and copyright laws by 
selling two unopened pieces of software on eBay for $203.50.

Cleveland lawyers Robert Chudakoff and Edward Simms, along with San 
Francisco lawyers Roy Bartlett and Cameron Alston, allege that the sale 
cost Microsoft hundreds of thousands of dollars in "irreparable damage." 
They demanded that Zamos hand over his eBay profits ($143.50) and cover 
the company's court costs and legal fees.

The honchos at Bill Gates' empire probably thought it would be an easy, 
open-and-shut case, just like the 1,045 similar suits they have filed.

"They're crazy," Zamos says of the blizzard of suits. "I think they just 
pump these things out. And if you look at how many go to a decision, 
it's none. People just don't show up or bother to defend themselves."

Economically speaking, it was a lopsided fight. Last year, Zamos earned 
approximately $3,500. Microsoft: $38 billion.

During the whole debacle, Zamos says, he actually talked to a company 
lawyer only once. Robert Chudakoff, who has specialized in 
intellectual-property law for 25 years, apparently believed he had the 
kid on the ropes.

"I asked him what he wanted from me," says Zamos. "He said I needed to 
pay restitution. I said I had nothing to pay with, and he said, 'You 
have a car.' Yeah, like they're gonna take my 2002 Ford Escort. I looked 
it up anyway, and they can't take your car unless it's collateral."

Though Chudakoff and the other Microsoft lawyers declined comment, it 
appears that ganging up on a college student will prove embarrassing to 
them and to the software titan they represent.

It wasn't any particular genius or advanced legal skills that made Zamos 
different from the other defendants. It wasn't even that he was right. 
He simply did his homework -- and outplayed the lawyers at their own game.

"Like I said, man, I totally looked up everything," he says.

Goliath, meet David.

------------------------------------------------------------------------

Last semester, the Kent State biochemistry major enrolled as a guest 
student at the University of Akron in order to pick up a microbiology 
course seldom offered at Kent. "I didn't want to be stuck in school for 
six years because I had to wait around to take one class," he says.

While at Akron, he decided to upgrade his computer, so he bought the 
discounted educational editions of Microsoft Windows and Office XP Pro 
for $60 at the school's computer store.

When he took the software home, he realized that he'd have to reformat 
his hard drive to install it. Rather than lose years of term papers and 
mp3s, he decided to stick with his old operating system and return the 
unopened packages.

But back at the store, the cashier told Zamos that the university had an 
agreement with Microsoft whereby it wouldn't accept returns on the 
company's software.

An Akron U. spokesman offered no comment, stating only that the school's 
policy is to accept returns of all unopened software within 10 days of 
purchase.

"It was probably just some stupid mess-up," says Zamos. "The store is 
run by a bunch of 18-year-olds anyway." He can't remember whether he 
missed the 10-day window.

One attorney even suggested that he sue the University of Akron. "I'm 
not going to do that," he says, rolling his eyes. "It wasn't their 
fault. I don't even think it was Microsoft's fault. It was these lawyers."

Zamos decided to request a return directly from Microsoft, which has its 
own 30-day return policy.

He sent his letter by certified mail, so he knows when it arrived. But 
Microsoft conveniently waited 34 days to respond. He was denied.

With two pieces of useless software on his hands, Zamos turned to his 
eBay account under the username "bestprices_fastestshipping." He uses 
the online auction site mostly to sell used textbooks and school supplies.

First he auctioned off the Office XP Pro for $112.50 on September 27. 
But when he went to sell the Windows software, his second auction was 
taken down by a "Microsoft investigator," who accused him of infringing 
on the company's copyright, according to the lawsuit.

"I thought it was bullshit when they pulled my auction," he says. "I had 
no idea what I did wrong."

Rather than simply concede, Zamos researched Microsoft's resale policy, 
which is posted on eBay.

The policy states that "qualified end users," meaning anyone associated 
with an educational institution, may resell and purchase software 
through eBay.

Zamos began communicating with Microsoft's San Francisco lawyer, Cameron 
Alston, about the matter. Alston sent him a letter defending Microsoft's 
right to shut down his auction, citing several court cases where large 
businesses pirated Microsoft software and sold it.

Zamos wrote back to ask what these incidents had to do with a student 
reselling two unopened pieces of software on eBay.

A month later, Alston still hadn't responded to his questions. So Zamos 
simply sent a counterclaim to eBay, which allowed him to repost his sale.

He even updated his auction's web page by posting Microsoft's resale 
policy verbatim. "I just cut and pasted exactly what their resale policy 
said and put it on my platform," he says.

Zamos finally sold the Windows program for $91. He'd made a profit of 
$143.50 from both sales.

According to the lawsuit, the investigator who shut down his auction had 
e-mailed Zamos on September 30, asking whether his software bore a 
warning that Microsoft believed precluded Zamos from reselling it. 
Lawyers say Zamos acknowledged that both packages contained the warnings.

Still, Zamos felt justified. The software had never been opened, and 
Microsoft had made a return impossible. He'd researched the company's 
resale policy and understood himself to be a "qualified end user." But 
he couldn't be fully aware of the licensing agreement, since it only 
appears when the software is loaded.

Microsoft came out firing.

A few months after the final auction, Zamos's father, David Sr., 
received a cryptic FedEx letter from Alston. "I had no idea what was 
going on," says David Sr. "I didn't even know she was an attorney, aside 
from her language. The letterhead didn't say anything about a law firm. 
For all I knew, they could have been an assemblage of trash collectors. 
So I wrote them back, but they blew me off."

It wasn't until the day after Christmas that Zamos realized he'd 
actually been sued.

He found his case on LexisNexis. "They were so shady about the whole 
thing," he says.

------------------------------------------------------------------------

Zamos has run afoul of the law before, though he scarcely could be 
described as a hardened criminal.

During last fall's election campaign, he was driving home on Route 303 
at around 11 p.m. when he spotted a giant Bush-Cheney sign in the front 
yard of the home of Summit County Republican Party Chairman Alex 
Arshinkoff.

The 4-by-8 foot sign had become the center of a comical fight in Hudson. 
The city claimed that it violated zoning laws. Arshinkoff refused to 
take it down, ironically seeking help from the ACLU, which he'd publicly 
bashed. Ultimately, the sign cost him $2,900 in fines.

Inspired more by the absurdity of the situation than by the politics, 
Zamos thought a prank was in order.

A can of spray paint in hand, he sneaked across Arshinkoff's lawn, only 
to be intercepted by a security guard, whom Arshinkoff had hired to 
protect his sign.

Zamos jumped into his car and sped away, but he was caught by police.

He was slapped with a $100 fine -- and a touch of embarrassment. "I 
don't agree with what I was going to do," he says. "I saw this gigantic 
sign every night when I was driving home from studying at Akron U. to my 
home in Twin Lakes. You can probably surmise the rest."

Friends and family describe Zamos as a studious guy with a fondness for 
coffeehouses. He's one of the top students in Kent's Chemistry 
Department. "He's my son, so I can't be objective, but he's a very 
bright young man," David Sr. says.

When he first got wind of the lawsuit, David Sr. tried to get a lawyer 
for his son. He called around, but the cheapest intellectual-property 
attorney charged $190 an hour. David Sr. couldn't afford the bill, and 
the lawyer wouldn't take the case anyway. "I'm assuming that they were 
Chudakoff's buddies, but I can't be sure -- though all these guys know 
each other," he says.

David Sr., a jazz musician, felt torn, since he has experience 
representing himself. "Biochemistry is a daunting major, and I didn't 
want him to get impaled on this thing to the detriment of his 
education," he says. "But at the same time, what's right is right, and 
what's wrong is wrong. They had no case."

Before the suit, Zamos had little understanding of the law. Still, he 
decided to tackle the suit himself. "I fought it out of principle," he 
says.

As he perused the 18 pages of the suit, thick with legalese, he began 
putting his study skills to use, spending hours a day at the Akron U. 
law library. He memorized the way lawyers wrote complaints and motions, 
and he mimicked the tortured language of other cases.

"I was surprised he was fighting back, but it sounded like something 
Dave would do," says Amy Ritter, a fellow Kent student. "When he wants 
to learn something, he's very driven."

When Zamos cracked the complaint's legal language, he realized that the 
suit's claims of "irreparable injury to its business reputation and 
goodwill" were baseless. He hadn't pirated or stolen any software, 
falsely represented Microsoft, reproduced its trademark, or repackaged 
its goods, as the company's lawsuit suggests.

Microsoft even went so far as to accuse Zamos of unfair competition, 
claiming that his $143.50 in profits forced the company to sustain 
"substantial impact."

The suit, Zamos believed, made Microsoft -- busy flexing its muscles -- 
look like nothing more than a meathead.

He also discovered that the suit was essentially a carbon copy of others 
the company had filed -- such as Microsoft vs. Vantandoust/, /where the 
company sued a corporation that was selling counterfeit versions of its 
software. "They just tweaked a template and filed it," Zamos says.

He places page 15 of his case next to page 17 of the Vantandoust case. 
"If you look at page 17 of this case, it's the same exact thing as my 
case, except they took out the plural form, but now the verb-noun 
agreement is all messed up," he says. "Plus, none of these things have 
anything to do with me. I didn't sell anything counterfeit."

It looked as if Microsoft lawyers were so used to defendants caving, 
they hadn't even bothered to craft a suit that represented the 
circumstances of Zamos's case.

So Zamos spent his Christmas vacation assembling a 21-page counterclaim, 
which he filed January 3.

He fought Microsoft's claims of trademark and copyright infringement by 
citing more than 20 other cases, including a New Kids on the Block 
lawsuit, where the boy band sued a publishing company over the use of 
its song titles.

The New Kids lost, since the publishing company was simply using their 
titles to describe the songs, just as Zamos was using the Microsoft name 
when he described the software he was selling. "I was being a smartass, 
but it set precedents for trademark violations," he says. "I thought my 
counterclaims were solid. I didn't file anything frivolously, and I was 
the only one who submitted any evidence."

But Zamos made one mistake. He wasn't, in fact, a licensed "qualified 
end user," because he'd never signed the agreement that would allow him 
to resell his software. And he couldn't sign the agreement until he 
loaded the software.

He turned his mistake back on Microsoft, however, accusing it of 
deceptive sales practices, since the agreement had essentially been 
hidden from him. "How could I sign the agreement if I'd never opened the 
software? It didn't make any sense," he says.

He also claimed that he'd followed the resale policies publicly posted 
by Microsoft, and that he wasn't responsible if he violated any rules it 
failed to mention.

Microsoft responded by ridiculing Zamos's counterclaim as "premature," 
noting that he had requested a summary judgment without enough time for 
discovery. Obviously, the company's lawyers hadn't anticipated a fight.

Zamos went back to the drawing board and made two more motions, accusing 
Microsoft of perjury, causing him emotional distress, defamation, 
unconscionable consumer practices, abuse of process, fraud, and more.

The suit spiraled into a dizzying 37 filings. Every time Microsoft filed 
a motion to dismiss his claims, Zamos would file more the very next day. 
Not only did he force Microsoft to defend its accusations against him, 
but the company was now forced to defend its own practices as well.

After two months of back-and-forth filings, the judge ordered both sides 
to stop submitting any more paperwork.

Finally, Zamos gave Microsoft the migraine it hadn't expected. He 
requested a trial by jury, knowing that the company wouldn't want to 
spend tens of thousands of dollars in legal bills just to snuff one kid 
in Ohio. He was right. The lawyers said they'd drop their suit -- if 
Zamos dropped his countersuit.

But that wasn't good enough for Zamos, who'd wasted hours of his time 
and $40 in Kinko's copies. He didn't want billions of dollars or a new 
Ford Mustang. He wanted an apology and reimbursement for his copies.

"So they can file any ridiculous suit they want, and when it blows up in 
their face, they can walk away from it whenever they want?" David Sr. 
asks. "They claimed he was hassling them, but they filed the lawsuit!"

------------------------------------------------------------------------

When Zamos realized that Microsoft wasn't going to say it was sorry, he 
decided to go to the press. It was the best move he made.

He typed up a one-page press release and contacted /The Plain Dealer/ 
and Akron's/ Beacon Journal/. /The PD/ blew him off, while the 
/Beacon/'s/ /Phil Trexler/ /wrote a brief story on March 7.

What the local press didn't realize was that a college kid taking on 
Bill Gates' loved and loathed kingdom would make an international story.

Zamos was in class the entire day. He'd lost his cell phone and couldn't 
get any calls. It wasn't until later that evening that he realized he'd 
activated his 15 minutes of fame.

At around 10 p.m. that night, he sat at his laptop in the student union, 
his e-mail in-box packed with interview requests from as far away as 
England. "Suddenly, I got all these requests from Washington and San 
Francisco," he says. "They even wanted me to go on the Nick Cavuto show 
on Fox, but I didn't want to go on some crazy conservative talk show -- 
that's scary. I just wanted to put pressure on Microsoft."

Meanwhile, the company's lawyers seemed to understand they'd created a 
PR nightmare. "I got a call from Chudakoff in the early afternoon, the 
day the story came out," says David Sr. "He was looking for my son, and 
when I asked him what for, that cockroach said he couldn't discuss the 
case with me, because it defies legal ethics. So I said, 'What legal 
ethics?'"

When Zamos finally talked to Chudakoff, his tone had changed. "He was 
very complimentary," Zamos says. "He said he was impressed by my 
pleadings. His flattery was ridiculous."

Chudakoff offered him a chance to settle.

------------------------------------------------------------------------

To this day, Zamos's greatest critic remains his girlfriend. "She thinks 
it's wrong to sue anyone ever, and that I should have just gotten out of 
it as fast as possible, but I have a different view of the legal 
system," he says. "I think it's the only real way to effect any change. 
There are a lot of problems with this country, but at least I can defend 
myself in a court of law, which is saying a lot."

Zamos ponders what would have happened if he hadn't put up a fight. "I 
would have just declared bankruptcy, gone to grad school, and moved in 
with my girlfriend, like I was planning on anyway," he says.

When asked if he'd ever consider being a lawyer, Zamos answers, "Are you 
kidding? I hate this stuff!"

He plans to go into pharmaceutical research.

Before the settlement, Zamos expressed apprehension about accepting 
Chudakoff's offer. After all, it would force him to sign a nondisclosure 
agreement, which would prohibit him from discussing the case ever again. 
"I feel like a jerk settling, because I think more people should know 
about this," he says. "It's a time-management issue, really. I don't 
have the time to do all the work that goes into actually closing the case."

Zamos is no longer allowed to speak about the case, which is just the 
way Microsoft wants it.

Surely the company needs to protect itself from piracy. The music 
industry has taken much the same approach, bombarding everyone from 
middle-school girls to college students with suits over illegal 
downloading. But when the fights are so lopsided, there's a tendency to 
underestimate the defendant and rely solely on the superior firepower of 
lawyers and money.

Today, Microsoft wants nothing to do with the kid who just wanted his 60 
bucks back.

The company refuses to comment on the case, offering only a written 
statement proclaiming its interest in the greater good: "Microsoft's 
academic program is a special low cost program that promotes education 
by providing students and qualified academic institutions software at 
reduced prices. This program can be abused when software is purchased 
for academic prices and resold to the general public."

The implication, of course, is that Zamos intentionally bought software 
at educational prices in order to unload it on eBay for a tidy profit. 
He says it ain't so. "If I had been doing something like that, don't you 
think the lawyers would have figured it out? I mean, they spent a lot of 
time and dough. You'd think they'd come up with something."

Besides, Zamos says, Microsoft's own return policies forced him to take 
this route. By essentially forcing Zamos to keep the software, the 
company left him with no option but to sell it on his own. A man earning 
$3,500 a year can't be expected to eat a $60 purchase.

------------------------------------------------------------------------

Zamos says he'll still use the company's software. He has no choice. "I 
have to, since they practically own the universe."

As he stares at his Hotmail account, loaded with interview requests and 
ingratiating pleas from Chudakoff for a chance to chat, he laughs. 
"Today, I just realized -- Microsoft owns Hotmail!"

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