A not so bright Kent State University student has defeated the world's largest software company. Microsoft today dropped its lawsuit against David Zamos, and Zamos dropped his countersuit against Microsoft, The Register has learned. It seems that the public scrutiny over suing a student for moving a couple copies of software on eBay was too much for Microsoft to bear.
The US District Court for the Northern District of Ohio today revealed that Microsoft and Zamos have settled their differences after battling in court for more than two months. "The Court was informed by all parties that this matter has settled in its entirety," wrote Judge John Adams. "Accordingly, it is hereby ORDERED that this case is DISMISSED without prejudice."
Zamos - a chemistry student at Kent State - received a surprise in the mail last year when Microsoft lobbed a lawsuit his way. Microsoft was shocked to find Zamos selling one copy each of Windows XP Pro and Office XP Pro on eBay. The student had purchased the software at the University of Akron's bookstore and received a substantial educational discount, paying just $60 for the code. After deciding he didn't really want the software, Zamos tried to return it to bookstore but to no avail. He then put the software up for auction on eBay and brought in $203.
Why Zamos thought he could move educational software on the free market is beyond us, but the student reckons he saw no resale restrictions on the software boxes. This, after all, is the same student who was "arrested after sneaking across a lawn . . . with a can of spray paint, heading toward the notoriously large Bush/Cheney sign in the yard of Summit County Republican Chairman Alex Arshinkoff" and then "convicted of misdemeanor trespassing and criminal mischief," according to a report from the Beacon Journal.
All that aside, Microsoft's behavior in this matter is far more comical than that of Zamos.
Microsoft's vast team of software snoopers were quick to notice the packages up on eBay, as shown by the firm's original filing in the lawsuit.
"A Microsoft investigator sent a message to Defendant through eBay's website asking whether the disk containing the software included the phrase 'not for retail or OEM distribution.' Defendant confirmed by return email the same day that the disk did include the phrase," Microsoft's lawyers said.
Zamos, however, likely did not consider himself a retail or OEM outlet. He just wanted money back so he could buy some beer on the weekend. Microsoft saw the matter in a much more serious light.
"Microsoft has suffered and will continue to suffer substantial and irreparable damage to its business reputation and goodwill as well as losses in an amount not yet ascertained," it said. "Defendant's acts of copyright infringement have caused Microsoft irreparable injury."
Microsoft sought attorney's fees and Zamos's profit from selling the software.
The whole matter took a different turn though when Zamos countersued Microsoft on Jan. 3.
Zamos lobbed a large number of charges at Microsoft - most notably that the company made it tough to return software. "Microsoft purposely established and maintained a sales and distribution system whereby rightful rejection and return of merchandise that is substantially non-conforming is either impossible or practically impossible due to the ineptness of its employees, unconscionable policies malicious intent and deceptive practices," he wrote in the countersuit.
What's this kid doing messing around with Chemistry?
Word of Zamos's battle eventually reached the main Ohio papers, and that's when Microsoft got scared. It offered to drop its suit against Zamos, if he would drop his suit against Microsoft. No luck. Zamos wanted an apology and payback for printing out legal documents at Kinkos, and Microsoft wasn't willing to do either.
It's not clear what terms the two parties did eventually reach. Zamos told us that he's under a non-disclosure agreement at the moment. Zamos, however, seemed to have the upper-hand against Microsoft.
Redmond surely could not justify sending a pack of lawyers after a student over $200 in software, especially when he really did seem to sell it during a one-time, moment of ignorance event. It also didn't help that this relatively poor student was willing to fight the giant to the end - all by himself. We suspect Zamos got his apology - even if he didn't deserve it. ®