California Case Update

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I talked to my wife extensively via Skype while I was in Germany last summer. There were times I was working on one of my XF sites during the call. Can we expect a summons from IB as a suspect in a conspiracy? It might be worth a vacation in California. I would be happy to submit a deposition at my Certified Marine Chemist rate. :)
 
Floris... jmurrayhead was replying to my question:

James said:
Quick question, if VBSI are (for some absurd reason) the winners of the case and the courts decide that XenForo is indeed property of VBSI - do you actually think that VBSI would distribute XenForo as vBulletin software, or just destroy it?
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relax o_O
 
Guys, can we all do as Kier asks, the last thing they need is to have a case of defamation added into the pot. Just keep it to discussing the case and that's it.
 
This is just one man's opinion- I see no chance of vB winning any claims. Some cases are incorrectly decided and you can't account for the human variable in the judicial process. That said, nothing seems viable about vB's claims. Look as hard as you might, but, I have not seen a single piece of evidence that stands up to scrutiny about any of the claims. There are a few opinions about the xf software, but the underlying facts do not appear to support the basis of the opinions (recall, experts are allowed to offer opinions about things within their expertise- however, these opinions must be based on a supportable underlying basis...look at Federal Rules of Evidence 702:

"Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case." )

Some people have focused (understandably) on the judge "deciding" the case. Understand that the judge can decide that as a matter or law (i.e, if the facts as alleged are true they still do not mean that the plaintiff has a claim, or that the law(s) cited as a basis for the claims do not apply to the facts of this case or that there is no set of facts that the plaintiff can show that means they win) the defendant will win. As for evidence, the judge acts as a "gatekeeper," deciding what a jury can hear. In this function, the judge only determines if there is enough relevance or reliability for evidence to be heard by a jury. Once he decides something can be heard by a jury, then it is up to the jury to weigh how persuasive the evidence is. However, if he finds that the basis of the opinions are not reliable then, acting as the gatekeeper, he can say that the expert cannot testify as to his opinion (and without that evidence, it may well be impossible for vB to even present its claim to the jury).

Once the judge has decided a case can go forward (essentially by finding that there is SOME POSSIBLE way that the plaintiff can win- he is not deciding the strength of the case at that point), it it up to the jury to decide. So, to recap, the judge basically deals with deciding matters of law. Unless there is no way the plaintiff can win, he does not decide any facts. The decision-maker on the facts is the jury. So, though, I think that the judge should/will find that vB's case is without merit and should be dismissed, it is very possible that he decides that there are SOME facts that COULD be proven that would allow vB to win and therefore, however weak the case, vB should have the right to present its case to a jury to determine some facts.

My point is that while I understand all the hopes being pinned on the judge just throwing out the case (and I think he should), people should understand that the judge's role is normally to rule on the law and the motions of the parties and the jury is the fact-finder. Also understand that the law favors letting a jury hear the issues and make factual decisions. This is rooted in the Constitution, that there is a right to trial by jury. So, in close cases, the judge would normally let it go to a jury, however weak the case. As a matter of law, I think the case should be tossed and not go to a jury. But, the judge in this case may be more or less risk averse than I am (and at the end of the day, in his court, that's whose opinion matters; not so much on appeal).

I hope this helped people understand who decides what.
 
Following this stock may indicate any wild changes in any claims by either side.....

http://www.google.com/finance?q=NYSE:BF.B

Brown-Forman Corporation, manufactures, bottles, imports, exports and markets a variety of alcoholic beverage brands. Its principal beverage brands include Jack Daniel’s Tennessee Whiskey, Jack Daniel’s Single Barrel, Jack Daniel’s Ready-to-Drinks, Jack Daniel’s Tennessee Honey, Gentleman Jack, Southern Comfort, Southern Comfort Ready-to-Drinks, Southern Comfort Ready-to-Pours, Southern Comfort Lime, Finlandia Vodka, Antiguo Tequila, Canadian Mist Blended Canadian Whisky, Chambord Liqueur, Chambord Vodka, Don Eduardo Tequila, Early Times Bourbon, Early Times Kentucky Whisky, el Jimador Tequila, Herradura Tequila, Korbel California Champagnes, New Mix Ready-to-Drinks, Old Forester Bourbon, Pepe Lopez Tequilas, Sonoma-Cutrer Wines, Tuaca Liqueur andWoodford Reserve Bourbon. The Company’s principal brand in its portfolio is Jack Daniel’s, which is a spirits brand. Its other brands include Finlandia,,Southern Comfort, Canadian Mist and el Jimador.
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(joke)
 
James said:
Quick question, if VBSI are (for some absurd reason) the winners of the case and the courts decide that XenForo is indeed property of VBSI - do you actually think that VBSI would distribute XenForo as vBulletin software, or just destroy it?
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If VB for any absurd reason won this, then IPB, PHPBB, MyBB and the list goes on, must all be owned by VB, being the true owner of everything forum software oriented according to them.

I wouldn't even stress about it to be perfectly honest. VB may win some points, I have no doubt they will lose most, though overall they cannot win unless a court wants to place every forum software built into ownership of VB, being that is what they're claiming, that they have copyright on PHP, MySQL, Javascript, AJAX, SEO even, etc etc.

Completely absurd claims that have no method to viably win.
 
@jadmperry, and FRE 704 for Dr Abrahamson - he did have opinion in there.

I wonder how many Lay witnesses we have here?
 
Shamil said:
@jadmperry, and FRE 704 for Dr Abrahamson - he did have opinion in there.

I wonder how many Lay witnesses we have here?
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They would have had to identify expert witnesses in earlier filings (I would assume they are identified somewhere, just don't know off the top of my head when they made the required disclosures....my admittedly hazy recollection is that I saw this somewhere, but, again, I couldn't point to it without reviewing the case again).

Everyone who is not an expert witness would, of course, be a lay witness. That said, the bar for being declared an "expert" is pretty low....you have to show that you have "knowledge, skill, experience, training, or education" in a particular area. This part of the rule is pretty easy to meet. But, the rules for discovery means that it won't be a surprise as to who will be called as an expert vice lay witness. (Also, recall that the judge can exclude cumulative or repetitive evidence, so you can sometimes see limitations on either witnesses or testimony by witnesses as cumulative, not helpful to the finder of fact, or likely to confuse the jury).

Recall that before offering ultimate opinion, the testimony has to be "helpful to the trier of fact." So, while it may be permitted to give an opinion on similarities/differences in software, the judge may say that that testimony is enough and the jury would not be helped by the "ultimate opinion" testimony. Understand the distinction between opinion on underlying question (are the codes similar) and the ultimate issue (is it infringing). There is a lot of tension here and it is generally the case that the jury is the arbiter of the ultimate question. Not sure if you have access to the Notes of Advisory Committee after the rule, but the final paragraphs explore this further. Again, even before you get to this issue, the opinion has to be based on reliable bases for the opinion. I am not sure they can show this given my read of the depositions. (Note that these evidentiary issues are often challenging to get right and there is a ton of case law on the contours of "scientific/expert" evidence. If you are interested in more on this, take a look at Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and the cases that follow since the Supreme Court ruled on this). Would not surprise me if, assuming the case gets that far, we see a motion to exclude expert testimony on this issue. However, the tactics are up to the attorneys in this case.
 
GeeksChat said:
By "Lay Witness" do you mean people who moved away from vB before XF had gone public?
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The important distinction is between who can testify as to their opinion (experts) and those who can only testify as to what they have seen, heard, experienced, etc. (lay witness).
 
I would not be much help and would be a lay witness but I would be more than happy to be a witness.

It looks like to me one of the claims is they are stealing me as a customer. When I heard about XenForo I was already looking at going back to SMF or moving on the IBP. I would have already moved if it where not for finding out about XenForo.

I feel like vB actively pushed me away as a customer, no one has to steal me.
 
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