DescentBB

KSU student no pushover for Microsoft
21-year-old wants company to apologize for filing lawsuit
By Phil Trexler
Beacon Journal staff writer

David vs. Goliath?

Sort of. It's actually software giant Microsoft Corp. vs. local college kid David Zamos. And the battlefield is in a federal courtroom in Akron.

And what did Zamos, a Kent State University student, do to awaken the corporate king?

He sold two software packages on eBay for a little more than $200.

In response, Microsoft has thrown four lawyers at the 21-year-old chemistry major, filing a lawsuit in U.S. District Court and claiming hundreds of thousands of dollars in damages.

Zamos responded in kind, acting as his own lawyer and loading his slingshot with a countersuit against the behemoth. It appears his adversary is down on one knee.

This week, a Microsoft spokeswoman said the company is ready to drop its suit and walk away, but it cannot because Zamos won't drop his. The student said a simple apology from Microsoft would have settled the matter a month ago, but that apparently isn't happening.

Now, Zamos said he wants more than an apology for his troubles. He wants at least $40 for all the court documents he fashioned and copied in fighting the suit, plus compensation for the 120 hours he spent researching his defense.

If no settlement is reached, Zamos said he is ready to defend himself in court. A case management meetingis scheduled for later this month.

``Obviously, when I saw they were suing me in federal court, like anyone, I was scared. But that faded pretty quickly when I researched their claims and saw I didn't do anything wrong,'' Zamos said. ``Now, I'm not afraid at all.''

No refund on software

The battle began in September when Zamos, then a student at the University of Akron, bought Windows XP Pro and Microsoft Office software from the university computer store. He spent about $50 on the two, a fraction of the retail cost because Microsoft offers huge discounts to college students.

A week or so later, he said, he tried to return the unopened package, seeking a refund after learning that installing the software was more than he bargained for. The store said his purchase was final.

Zamos, who earned about $3,500 last year working in UA's chemistry department, then listed the Office software on eBay. It sold for $112.

Before he could auction off the XP Pro, eBay closed down the auction when Microsoft objected and raised concerns about trademark and copyright infringements.

E-mails and letters were exchanged among Zamos, eBay and Microsoft, which also refused to refund Zamos' money.

Eventually, the XP Pro was listed on the Internet auction site and sold for $91.

Microsoft's lawsuit

Microsoft then filed its 18-page lawsuit against Zamos in U.S. District Court in Akron.

Microsoft, which reported $38 billion in sales in the past year, alleges that Zamos' eBay sales amount to unfair competition.

In the company's suit, its lawyers accuse Zamos of copyright infringement for the eBay sales and contend the saleshave ``resulted in losses to Microsoft and an illicit gain of profit'' to Zamos.

Further, the corporate lawyers said, ``Microsoft has suffered... substantial and irreparable damage to its business reputation and good will, as well as losses in an amount not yet ascertained.''

The suit said the corporation is entitled to ``receive the profits made by (Zamos) from his wrongful acts.''

Finally, the suit asks for an order freezing Zamos' assets and an order forcing him to pay court costs and the fees of the four lawyers.

``All this for $50 in software,'' Zamos said last week.

The four lawyers all declined to comment, referring questions to Microsoft spokeswoman Stacy Drake McCredy. McCredy declined to comment on most of the allegations in the suit.

Student discounts

She did say that Microsoft offers universities and colleges discounts on software, and in doing so requires that the products be sold only to students, not the public.

Zamos said that he was never informed of the policy and that no such disclaimer is on the software package.

McCredy said she did not know whether the resale policy is labeled on the products.

McCredy said the company is willing to drop its suit, but it cannot do so until Zamos agrees to drop his countersuit. She would not comment on why the company had not accepted Zamos' offer to drop his suit in exchange for an apology.

``It is unfortunate that the situation has gotten to this point,'' she said. ``We do hope it can be resolved. We've offered to drop the case, and we're willing to do so. Since Mr. Zamos is not willing to dismiss his case, the court doesn't permit us to dismiss ours.''

Crash course in law

Zamos said his countersuit, which includes allegations that Microsoft committed fraud and violated the Consumer Sales Practice Act, is more about principle. And his legal battle with Microsoft reflects the passion with which he is defending his case.

He said he spent hours in law libraries constructing his defense, learning the ropes of law to file more than a dozen motions himself.

``I knew absolutely nothing when I started this,'' said Zamos, who plans to use his chemistry degree to work as a pharmaceutical researcher.

The court docket is voluminous, so much so that Judge John R. Adams has ordered both sides to stop filing motions until the March 25 case management meeting.

Zamos said after talks with Microsoft's Cleveland attorneys that he believes at least one California attorney failed to research the company's claims and overstated its case in the initial suit. But without an apology, he said, he's not going anywhere but a courtroom, where he plans to act as his own lawyer and argue before a jury.

``Once they found out their mistake, they should have said they're sorry. And we could have been done with this a month ago,'' he said. ``They say I'm hassling them with my motions, but they sued me. I didn't sue them.

``I'm not asking for much, but apparently they think so. I mean, hey, apologize and pay off Kinko's'' for copies, he said.

``Microsoft has suffered... substantial and irreparable damage to its business reputation and good will, as well as losses in an amount not yet ascertained.''

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.

http://clevescene.com/issues/2005-03-30 ... print.html