California Case Update

[jadmperry]

are you saying that "justice" is "all about money" ?

I know the post was tongue in cheek- but I never used justice to describe what is going on in this case.

(Though, to be serious for a moment, many people mistake the legal system as "justice" oriented- in a perfect world, the courts would work that way. However, everyone should understand that most legal actions are only predicated on awarding money damages...it is a very interesting revelation for most folks that the law does not always provide a remedy, that most remedies are in the form of money damages and that the courts "ordering someone to do something"- referred to as equitable relief- is fairly rare. If you want to really dig into some interesting issues, take a look at the difference between court of law, courts of equity, and the Court of Chancery. Without going into too much detail, in English history, there was a divide between what the law would allow or disallow and there developed courts of equity, to essentially provide some relief when the law would not. Some fascinating stuff that helps explain a lot about what happens in modern courts).

 

[jadmperry]

I do not understand, but that may be because my experience of (civil) legal cases is British.
If IB cannot demonstrate monetary damages, then how can there be a case at all?
The only type of civil case here I know where monetary damages are not part of the plaint, are in family law e.g. custody of a child; or libel,/ slander where the case hangs on the truth of the defamation.
Any BUSINESS case is about claiming financial loss due to the action of the defendant.
Is this an American (Californian) thing?

LOL...you beat me to the point, which I referenced in my preceding post.

You are mostly dead on correct with the problem- which is why I raised it. However, with Copyright claims, there can be equitable (i.e., the court orders someone to do something) relief, based on a copyright holders right to control use of their original works. Most of the equitable issues in this case would seem to turn on Copyright claims. But, as to the legal claims, damages are absolutely a necessary part of the claims. No damages= no win.

 

[Morgain]

LOL...you beat me to the point, which I referenced in my preceding post.

You are mostly dead on correct with the problem- which is why I raised it. However, with Copyright claims, there can be equitable (i.e., the court orders someone to do something) relief, based on a copyright holders right to control use of their original works. Most of the equitable issues in this case would seem to turn on Copyright claims. But, as to the legal claims, damages are absolutely a necessary part of the claims. No damages= no win.

Forgive me pushing for more. I might be a wild crazy Witch but I am also highly academically trained to hunt precision to the last gasp.

the court orders someone to do something) relief, based on a copyright holders right to control use of their original works. Most of the equitable issues in this case would seem to turn on Copyright claims.

My understanding is that IB have dropped claims to clear and definable copyright infringement relating to code as they originally claimed.
Instead they have retreated to some much more wobbly claims of copying components.
Our lot have pooh poohed this as the components are either standard forum components such as 'threads,' or else open source/ publicly available resources eg certain frameworks.
My only reservation here is if 'our side' are seeing what they want to see. But some pretty heavyweight coders have commented on this saying there is nothing in it, so it seems sound.

But, as to the legal claims, damages are absolutely a necessary part of the claims. No damages= no win.

So if IB cannot produce damages claims they cannot win, and your comment earlier tells me they cannot produce such claims. I assume that is because in a western market society a company cannot claim damages on another company for competitive trading.

How am I doing?

 

[jadmperry]

My understanding is that IB have dropped claims to clear and definable copyright infringement relating to code as they originally claimed.
Instead they have retreated to some much more wobbly claims of copying components.
Our lot have pooh poohed this as the components are either standard forum components such as 'threads,' or else open source/ publicly available resources eg certain frameworks.
My only reservation here is if 'our side' are seeing what they want to see. But some pretty heavyweight coders have commented on this saying there is nothing in it, so it seems sound.

Without going to much into the merits of the Copyright claims theory (short story- seems like crap to me), this is not the issue raised by your question. If vBSI were to prevail on their weak and apparently unsupported Copyright Claim, then equitable relief would likely be available.

But, as to the legal claims, damages are absolutely a necessary part of the claims. No damages= no win.

So if IB cannot produce damages claims they cannot win, and your comment earlier tells me they cannot produce such claims. I assume that is because in a western market society a company cannot claim damages on another company for competitive trading.

Two separate issues here- the first part is basically the case. If vBSI cannot show damages, their claims should fail. The second part, about "western market society" and competitive trading, is not very clear. It sounds like a question about a particular theory of damages. Evidence could show damages, but would have to be based on more than speculation. Potentially, either direct evidence (company balance sheets, for example), or expert evidence (economist opinion based on analysis of what would likely need to be company sales) might work to support a finding on damages. However, vBSI has not to date provided any basis for its request for damages and they have not disclosed any experts in support of this point. So, I see a very hard road ahead for them in claiming damages.

How am I doing?

See above...not dead wrong, right on some points, and a little off in others.

 

[Jake Bunce]

My understanding is that IB have dropped claims to clear and definable copyright infringement relating to code as they originally claimed.
Instead they have retreated to some much more wobbly claims of copying components.

Yes. That was recently discussed at length in this thread. IB has shifted to claiming "non-literal" copying which is a much more difficult claim to support according to jadmperry.

http://xenforo.com/community/threads/california-case-update.10037/page-276#post-456062

 

[OSS 117]

However, under the new conditions, the claimants (IB) have stated what is/was copied. However a particular flaw in their argument is that those elements are almost "industry standards," and sure seems they're banking on the judge or jury to not understand these "technologies" which have been around for years. They've been used in other web applications as well as forums, and vBulletin certainly wasn't the first to develop these standards. IBs lawyers and IB themselves must pull their head out of the Scotch barrel.

 

[Slavik]

Roll on 3 weeks.

 

[HWS]

If I were Bob Brisco, I would offer Kier and Mike a very, very large sum for coming back and head the vB development division. Or give them all rights and freedom AND a large salary AND a huge check for selling XF to vB and continue developing it independently, but under the roof of IB.

This is a way a settlement could look like. But that depends how stubborn those people are.

 

[erich37]

If I were Bob Brisco, I would offer Kier and Mike a very, very large sum for coming back and head the vB development division. Or give them all rights and freedom AND a large salary AND a huge check for selling XF to vB and continue developing it independently, but under the roof of IB.

This is a way a settlement could look like. But that depends how stubborn those people are.

if this guy would be an intelligent business-manager, he would have done such a deal over 2 years ago......

 

[HWS]

if this guy would be an intelligent business-manager, he would have done this deal over 2 years ago......

Never underestimate "personal differences".

But in the current state of affairs (Kier and Mike drove XF down -they are coding, but no business guys-, IB needs a better forum product -they are business, but no coding guys-) it may change even deep personal differences. And if they are forced to meet now....

 

[erich37]

IB needs a better forum product -they are business, but no coding guys-

I do not think "Bully Tactics" are the proper way to do business...... in the short-term-view you might win, but in the long-term-view you loose. I would not call IB to be "business guys".....

https://blog.wikimedia.org/2012/11/28/update-to-internet-brands-travel-site-lawsuit/

https://blog.wikimedia.org/2012/12/17/state-court-overrules-internet-brands-demurrer/

 

[HWS]

I would not call IB to be "business guys".....

In the end...

The focus of IB is clearly not forum software. They are a kind of hedge fond dealing with buying internet sites and squeezing them out afterwards. It is their business practice to take all measures (even sometimes not the most ethic ones) of minimizing the price paid and maximizing the cash output. This is their top most priority and nothing else.

And vB is handled just like that. Maximizing the cash output and minimizing the costs. Cheap developers, no expert heading it and good marketing with a huge price label.

You can say that it is not the most sympathetic company (it may even be one of the least sympathetic), but a highly successful company. And that -sadly- is what counts in our world today.

 

[erich37]

And that -sadly- is what counts in our world today.

yeah, but what are they gonna do with all that "cash" if paper-money becomes worthless ?

 

[Morgain]

In the end...
... good marketing with a huge price label.

You can say that it is not the most sympathetic company (it may even be one of the least sympathetic), but a highly successful company. And that -sadly- is what counts in our world today.

Not XF ...

...partly why I'm here. I value enclaves of real humans.

.... and not my business or my community project either. Both do well without spin, without exploiting anyone.
Not easy today. If GIGO (Garbage In Garbage Out) is the old watchword for IT,
then GIGO (Garbage In GOODNESS Out) is the new ideal in a feral society. Which makes the agent in the middle a recycling plant and it's a tough job!
I do often feel like the little guy with finger in the dyke holding back the flood of sewage (bad services, half crazy strssed out people, my owm fatigue) so my clients get a decent service.

All hail XF as a heroic GIGO!

 

[Digital Doctor]

But, I do doubt a settlement offer from vBSI that is reasonable. The continued cost of litigation is not a factor and having to pay legal fees should they lose would also not be a real issue for them. Again, this is all speculation, but it would seem to me that there is too much face to lose in settling, the costs are not an issue, and for the extra-legal reason that it appears the goal is to slow/impede/bleed XF, continued litigation is likely better for vBSI than settlement on almost any reasonable terms. I can't think of what terms would be reasonable that vBSI might offer

Essentially that's been IB's plan from Day 1, and that becomes more obvious every day. Drag this out as long as possible. These settlement talks are not going to end in a settlement ... because the plaintiff knows what the end game will be .... they have no reasonable case. The plaintiff won't get an offer on the table that would be worth accepting. As we all know the slow expensive legal system is setup to unduly protect the people with mountains of cash at the expense of everyone else.

Jadmperry: Under usual circumstances, when would a judge refer a case to a Magistrate Judge ? When would they not do it ?​

Notes:

A Settlement Conference will be held on Wednesday, February 13,
2013, at 10:00 a.m. in Courtroom 590 of the Edward R. Roybal Federal
Building and Courthouse, 255 East Temple Street, Los Angeles,
California 90012. The parties should be prepared to be available as
long as the Court requires.

The Magistrate Judge will not be involved in the actual trial of
the case and will assist the parties in an objective appraisal and
evaluation of the case.

All papers submitted for the Settlement Conference will
either be returned to the parties or destroyed by the Magistrate
Judge, after the settlement proceedings are concluded, unless the
parties agree otherwise.

This one is going to trial.

 

[HWS]

Not XF ...

XF went from very sympathetic to unsympathetic within months.
Their current business practice is simply unacceptable. But it seems to work.

If their product won't be that good, nobody would care any more.
I hope they can stand that adventure and an acceptable (for KAM) settlement can be reached and XF will be developed again by it's original developers soon.

 

[SchmitzIT]

Based on the wording in the new document and knowing how the case progressed so far, I expect the meeting to not lead to a settlement, and the case then being scheduled to a later date/time.

*sigh*

 

[Ditto]

settlement can be reached and XF will be developed again by it's original developers soon.

IB are not going to accept anything less than either they own xenforo, or it's gone. They won't accept a settlement in which XF is still here owned and run by KAM as a competing product against them.

 

[HWS]

IB are not going to accept anything less than either they own xenforo, or it's gone. They won't accept a settlement in which XF is still here owned and run by KAM as a competing product against them.

That is why I've outlined a possible settlement above.

If there won't be a settlement, the last chance for XF is judge Real. Because if that case reaches the trial status, it may end bad for XF. Simply because from my limited point of view, XF can't burden the massive costs coming with it.

 

[Brent W]

I'd still like a response from XF about why they completely stopped development all together at some point.