California Case Update

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Looking at all the information that has come out since the last time I posted in this thread, the whole thing has gotten even sillier than I remember it. Pardon the repetition, but I don't understand why VBSI wants to continue fighting an obviously pointless lawsuit when the money can be better spent to increase development quality. Once I finally switch my live site in a few weeks I'm not going back to VB, and I can say with a straight face it is not because anyone seduced me to leave, or that KMA came knocking on my door with delicious muffins and offering a round of badminton, but rather because Xenforo is what my community needs to continue to grow. VB no longer offers what it used to for me.

My sincere props to everyone working on the case, and especially to KMA who continue to work on making the best product they can despite this silly lawsuit.
 
Well if they can slow down XenForo's growth considerably (which seems to be the real motive) it's money well spend for them. But even that is doubtful with all the free publicity they have given to this site. It may be the case that this whole thing will backfire big time and XF could some day conclude it wasn't such a bad thing for the company after all...
 
Once they get out of American courts, then silly season is over for VB... thus VB's options are limited to none.

Can XF apply to the English courts to have jurisdiction taken over by them, considering its a defunct English company (VBSI) taking action against another English company (Xenforo), in a foreign country to both companies, solely because the parent company (Internet Brands) resides in USA?
 
Anthony Parsons said:
Once they get out of American courts, then silly season is over for VB... thus VB's options are limited to none.

Can XF apply to the English courts to have jurisdiction taken over by them, considering its a defunct English company (VBSI) taking action against another English company (Xenforo), in a foreign country to both companies, solely because the parent company (Internet Brands) resides in USA?
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The outcome of the action is limited to the US only. If the UK and US courts come to different conclusions, then I have absolutely no idea what happens next. Appeals.
 
Shamil said:
The outcome of the action is limited to the US only. If the UK and US courts come to different conclusions, then I have absolutely no idea what happens next. Appeals.
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Appeals don't always happen with companies. And on top of that, they're also usually thrown out.

The only time a judge and a lawyer sees "eye to eye" on an appeal is ....criminal justice. Software lawsuit appeals are usually on the bottom of the totem pole. Unless your company is like Microsoft.
 
Mert said:
Question what does the e-mail ( that is listed as exhibit 4 ) within https://docs.google.com/viewer?url=http://c746070.r70.cf2.rackcdn.com/92-1.pdf means ? do they forget to include some evidence or did they include wrong evidence ?
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Fred Sherman said:
If I read it right, they "forgot" an entire complaint?
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Yup, they forgot to include the 13th complaint that Derby access VBSI servers following termination of his employment.

Pams latest filings realy kick the **** into vbsi, I don't see how the judge can not dismiss the complains after reading that.
 
ManagerJosh said:
This might put a new spin into things...unfortunately.

http://computerfraud.us/articles/suing-employees-for-computer-fraud-gets-easier

Four separate circuit court rulings this year enhanced the ability of businesses to use Computer Fraud and Abuse Act. 



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I think this does not change anything in this case. As Pam's motion (docket #92) states, on pages 11-12, and in footnote 4, there was no damage alleged. Hence, this claim should fail. "


Plaintiff’s Chief Technology Officer, Joseph Rosenblum, admitted at his deposition that Plaintiff
did not suffer any damage or loss as defined by the CFAA
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Pretty clear that this claim should be dismissed. If it is not, none of the depositions or discovery shows or indicates and damage to the computer system. Taken together, this means this claim should be dismissed...I can see the judge perhaps saying, "Well, the pleadings are sufficient to let IB try to prove its case at trial," and therefore not dismissing. But, without any allegation and no adduced evidence of damage in discovery, along with the CTO's admission, I can't see how this claim could succeed. Remember, they cannot just drop some "surprise" evidence at trial. They would have had to disclose the evidence or witnesses during discovery. Can't see how IB can win.
 
jadmperry said:
I think this does not change anything in this case. As Pam's motion (docket #92) states, on pages 11-12, and in footnote 4, there was no damage alleged. Hence, this claim should fail. "




Pretty clear that this claim should be dismissed. If it is not, none of the depositions or discovery shows or indicates and damage to the computer system. Taken together, this means this claim should be dismissed...I can see the judge perhaps saying, "Well, the pleadings are sufficient to let IB try to prove its case at trial," and therefore not dismissing. But, without any allegation and no adduced evidence of damage in discovery, along with the CTO's admission, I can't see how this claim could succeed. Remember, they cannot just drop some "surprise" evidence at trial. They would have had to disclose the evidence or witnesses during discovery. Can't see how IB can win.
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What would constitute as damage though?
 
ManagerJosh said:
What would constitute as damage though?
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This is the quick answer....meaning I have not looked at other cases and have not researched any nuances here. But, I think Pam's brief accurately states the definition of damages:

“To allege a loss under the CFAA, plaintiffs must identify impairment of or damage to the computer
system that was accessed without authorization.” AtPac, Inc. v. Aptitude Solutions, Inc., 730 F. Supp. 2d 1174, 1184 (E.D. Cal. 2010)

The point is that the CFAA requires damage to the computer system. This can be caused by denial of use (think DOS attack or somehow using massive resources in such a way as to impair the normal use of the system). Or it might be as a result of viruses, malicious code, etc. being inserted. That is what most of the commentary I have read has discused, these two types of situations.

If I understand the bare-bones allegations, Kier somehow looked at some code at the request of vB employees. (TBH, I don't know if I really know what they are alleging because it is pretty unclear). Let's suppose this is true. The problem is that this does not damage the "computer system." I think what the allegation was trying to get at is that in looking at the code, Kier learned something that he used in developing XF. While I think this is clearly not the case, for CFAA purposes, even if true, it does not amount to damage to the system. The result is the claim should fail.
 
Oops, tough luck, white shoe boys. Nice shot, Pam!!!
Plaintiff’s Chief Technology Officer, Joseph Rosenblum, admitted at his deposition that Plaintiff
did not suffer any damage or loss as defined by the CFAA​
 
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