Letter from Dave Winer's Attorney
I received this letter Friday from Christopher C. Cooke, Dave Winer's attorney:Mr. Winer has retained our firm and asked us to contact you about two related matters. If an attorney is representing you, please provide this letter to your attorney and have him or her contact me.
First, we request that you return the $5,000 deposit that Mr. Winer paid to you in October 2005 in connection with certain work that you were supposed to perform for Mr. Winer in revising and maintaining Mr. Winer's website, feeds.scripting.com. Mr. Winer had previously sent you a consulting agreement regarding this work and made it clear to you that he would not hire you to perform this work without a written agreement signed by each of you. It is our understanding that neither you nor Mr. Winer signed such an agreement, that the redesigned site was never completed and launched, and that Mr. Winer has advised you that he no longer wishes to use your services for this project.
Second, Mr. Winer has recently learned that you have used the contents of his website "feeds.scripting.com" as well a computer application authored by him and certain third-party information, to launch a public web site known as the OPML Factory, presently located at "opml.cadenhead.org." The contents of feeds.scripting.com and the computer program are Mr. Winer's property and are protected by federal copyright law as well as by state law. Mr. Winer has not authorized you to use his property to launch the OPML Factory and your use of his property for such a purpose constitutes a willful infringement of Mr. Winer's copyrights under 17 U.S.C. 101, et seq., for which you can be liable for statutory damages as high as $150,000 for each unauthorized use, pursuant to 17 U.S.C. 504(c) (2), and liable for Mr. Winer's attorneys' fees if he were to bring an action against you in the United States District Court to enforce his rights, pursuant to 17 U.S.C. 505. Accordingly, on behalf of Mr. Winer, we demand that you immediately cease using or distributing all materials that Mr. Winer provided to you in connection with the "feeds.scripting.com" project, that you return to Mr. Winer all such materials, that you cease operating the OPML Factory and any other websites or portions of websites derived from his property, that you destroy any works derived from Mr. Winer's computer program, and that you desist from these uses and from any other infringement of Mr. Winer's property in the future.
Specifically, we must insist that, by no later than next Wednesday, March 15, you:
- (1) return the $5,000 deposit to Mr. Winer;
- (2) return all materials, third-party data and applications that Mr. Winer provided to you I in connection with the "feeds.scripting.com" project;
- (3) destroy all works derived from such materials, data and applications, and provide us a sworn statement, signed under penalty of perjury of the laws of the State of California, attesting that you:
- (a) have destroyed all such derivative works and
- (b) no longer possess copies of any the materials, data and applications obtained from Mr. Winer; and
- (4) take down the OPML Factory website (presently located at "opml.cadenhead.org") and any other websites or pages that you derived from feeds.scripting.com.
If you do not take these actions by next Wednesday, March 15, we shall assume that you will not be complying with Mr. Winer's demands and we will take all appropriate actions to enforce Mr. Winer's rights.
Last spring, in a work-for-hire agreement with Winer, I ported Weblogs.Com from a Frontier application running in Windows to an Apache/MySQL/PHP application running on Linux. I'd been telling Winer for years that he should run his web services on LAMP, because it handles high-load applications better and much less expensively than Frontier. We reached a verbal deal and I wrote it in a weekend for $10,000, following up with a written contract.
The project was a personal success for me, because after years of writing books on Internet programming, I was eager to prove that I could develop a web application with such huge demand. On an average day, my program served 34.65 gigabytes of data, took 1.1 million pings and sent 11,000 downloads of changes.xml, a file larger than 1 megabyte.
It was a financial success for Winer, who sold Weblogs.Com to VeriSign in October 2005 for $2.3 million.
Right after that deal was announced, we reached a verbal agreement to do the same thing on Share Your OPML, an RSS subscription site he developed with Andrew Grumet on Frontier in early 2004. I agreed to create, host and manage a LAMP version of the web application and Winer offered $5,000 when work began, $5,000 when the application was done, and 33 1/3 percent ownership of the site.
I developed the web application over the next two months, producing a 1,602-line PHP class library, 50 PHP scripts and a MySQL database that holds 1,438 members, 68,773 RSS feeds and 174,354 subscriptions to those feeds.
Contrary to the attorney's letter, the application isn't built on proprietary data. Winer released a Share Your OPML SDK in January 2004 that offers OPML subscription data for 1,054 users who agreed to share their subscriptions, and the data continues to be offered to the public today.
The web application has been in limbo because we haven't been able to reach a written agreement to supercede the verbal one. I figured that one of us would eventually end up taking over the project and the other would recoup his original investment, and I thought it could be resolved amicably until I got Friday's letter.
Winer seems determined to go after anyone he perceives as a threat to his authority over RSS, even to the point of turning a minor business disagreement into a federal case ("17 U.S.C. 101, et seq.").
I don't have a board of directors or a venture capitalist who can talk me into quitting the RSS Advisory Board. I'm a self-employed stay-at-home dad, and my sons are not persuaded by the argument that the board threatens the RSS roadmap.
But he has succeeded in making me sorry I took his invitation back in 2004 to get involved in RSS, a syndication format that will forever be mired in childish personal animus because of his mistaken belief that allowing other people to contribute to its success will rob him of credit.
The archives of Workbench contain numerous examples of lavish praise I've given Winer over the years, including an effort I led among his admirers to pool their funds and buy him a get-well iPod after he underwent heart surgery.
I've never been more retroactively embarrassed to have paid someone a compliment in my life.
Comments
More years ago than I care to admit, as tech. columnist for my then newspaper, I visited Winer in Mountain View. My assessment then was that he was clever, but a yutz. My assessment of this situation (the heavy-handedness, the hiding behind a pompous arse of an attorney, the implicit self-aggrandisement) is that he is clever, but a yutz. I imagine he's been clever, but a yutz, in between, too. Tell him to stick it, and keep posting.
Maybe this is just me, but you made the guy a profit of $2,290,000 and he is worried about $5,000 for a project that is in limbo... I would think I could let you slide if you made me that kind of cash!
Damn. All that I've been reading here and around lately suggests to me that I should altogether drop my RSS 2.0 feed and offer Atom only. When WordPress includes Atom 1.0 support, I'll probably go ahead and do that. Sam Ruby, Tim Bray, and everyone else involved in Atom are perfectly nice people, it seems to me that your efforts might be better received contributing to that project rather than the calcifying RSS 2.0 format. Good luck.
There are more academic methods of familiarizing yourself with the diagnosis of narcissistic personality disorder, but they are certainly not as unforgettable, eh?
Those weak in strength are strong in cunning. It is disappointing that people have to resort to legal violence to promote their self-interest.
I'm no legal expert, but paying you $5,000 to do something implies agreeing to the verbal contract, and whether or not that $5k is returnable on cancellation is a your-word via his-word debate. It's sad to see this stuff happen -- and a more common thing to happen than you'd think for independent programmers so ready to jump in and prove themselves. It's not as hard to get someone to pay for a roofing or landscaping job when there's something physical that's been done (although contractors spend sleepless nights over unpaid work, too), but programming's a bit too ethereal to easily establish whether something's been done and deserves to be paid for.
Rogers, I hope a flock of legal eagles swoop to your aid. This is incredibly ridiculous and petty. What a small man.
If you are collecting for a legal defense fund (here's hoping things don't sink to that level) I will pitch in what I can.
I'm really sorry to hear about this turn of events. My condolences.
rogers, there are two dave winers. can you find out which one sent this letter?
-pb
Rogers,
My heart goes out to you. No good deed goes unpunished.
I've been a rather vocal (if anonymous) critic of Dave Winer for sometime.
I wouldn't have been so vocal if I blogged openly or had business or consulting interests to protect because Dave's been so vindictive with his critics. And he's obviously well funded for legal remedies for damge to his ego (or technology legacy).
If I we're you, I'd solicit the involvement of a lawyer who would work for a percentage of a counter-suit against Mr. Winer for damages (breech of contract). NOTE: IANAL. As you well know, I'm a bit of an asshole.
That would likely resolve to an out of court settlement. Of course, Dave's got more funds to make you suffer.
And I'm NOT you. You have qualities of prudence, judgement and respect for others that I can never hope to master.
Let's hope that a little public exposure for Dave's "inside games" will encourage him to call off the legal processes and let you keep your well deserved fees.
Perhaps a mediator will emerge to resolve the issue privately.
"Free Rogers Cadenhead"
This, and all the drama over his imminent departure from bloggerhood, confirms my comment that his name is missing the "h".
Good luck, and count me in on the legal defense fund as well.
What a dick.
If you need monitary help, I'd kick in.
I thought Dave might have fallen in love. See: blog.eronj.com
But maybe I'm wrong and teh poor guy Who is brilliant and super creative) needs to change his meds.
sad.
Wow. What a jerk. I'll be happy to pony up a fiver to stick it to this assclown.
So Dave's in talks to sell the code, but he doesn't want to cut someone in on 1/3rd of the deal. Interesting.
Nine tenths of the stories you'll find about Dave Winer are just like this one. What a classless ass.
If Whiner is quitting blogging, does this mean Mark Pilgrim will return?
What does this do to your Winer number?
Quoted, from here, doesn't seem in the same spirit:
I've never taken a patent for my work. It's against my values. Ideas should build on each other. So many horrible patents have been issued in the last few years. You can't take it with you.
God, if this is all true, this makes Dave Winer a really big #*#*! I'm then glad that he has now decided to quit blogging, what a crappy way to go out though, sucking all the life out of the small people who helped you get where you are.
If Winer goes, I sure as hell hope it doesn't mean Pilgrim is back. Does he have to come back? Does the total number of crazy assholes on the internet have to remain constant?
So he doesn't want to lose one third of the profit. Instead of being remembered as the father of RSS, he is to be remembered as a two faced, jerk.
Great Dave!! You ass!
one third of the profit? Is he about to sell something? What to who?
Wow! Your getting a lot of support Rog. Hang in there.
Count us in on your legal defense fund.
I am a long time Winer-hater, for the simple reason that he is probably the biggest jerk on the internet. And there are millions of them, so that says a lot.
I'm sorry to say, though, that the original sin lies with you, Rogers, thinking you could do anything with this megalomaniac. You have been his biggest online defender, the only person with credibilty willing to vouch for him personally, here's what you get.
You should never have gotten involved with the man in the first place, this is the logical consquence for doing anything that Dave might perceive as harming him in any way.
And if you're reading this, Dave, you never found out who I was, but let's just say that even those closest to you know what an A-hole you are most of the time.
Wow -- just, wow. I don't know if there are words enough to say more than that. I hope that this serves as one of the larger wake-up calls to those who are willing to invest in Winer that it's Just Not Worth It, and that it is actually *counterproductive* to whatever ends one wishes to achieve; seriously, your code netted him $2+M, and he's bitching about a $5K agreement to produce code that's actually been produced.
Obviously, Rogers, I'm behind you on this one, and would be willing to help however I'm able. Seems to me, though, that you're in the clear on both counts of this lunacy.
For god's sake. Really sorry you're getting the shit end of the Winer stick, Rogers. Here's hoping it all turns out OK for you in the end.
Sick sad world.
Count me among those who would chip in for a RC Legal Defense Fund.
And I miss Mark Pilgrim. That guy's not a BS artist, unlike most of us. And even better, Pilgrim is *funny*.
Umm ... you agreed to work for Dave Winer as recently as last spring?
Had you missed the dozens of bloggers who wrote about how difficult he was?
I mean, it's nice to give people the benefit of the doubt, but I just don't get it.
I've never even met the guy and I can name five instances of him enraging other people.
@Sally Tenpenny: WTF? The biggest jerk on the internet? I just come from a site where I read a comment that involved killing a "Democrat child" with a chainsaw for every abortion carried out in this country and you call Dave Winer a jerk because of a XML format?? God you're retarded.
But anyway... @Rogers: if I learned one thing over the last few years, then it's that a contract dispute usually involves someone breaching a contract and while it's nice and dandy that you invoke the "I'm a stay-at-home dad and he's the evil millionaire who wants our food"-argument, it's also strange that you mention that "The web application has been in limbo because we haven't been able to reach a written agreement to supercede the verbal one."
So ultimately Dave is right, right? Because you didn't hold up your end of the bargain, so he can terminate the agreement and you probably get to keep the $5000.00. So, why don't you start keeping your emotions out of your posts instead of descending to the same level that you so despise about Dave?
Thanks.
see... now I walked into my own trap. Because, of course, you HELD UP your end of the bargain, but the agreement never materialised. For Dave's position it's all the same, but I should proof-read comments.
So I'm sorry for that.
We all know Winer is such an egomaniac, but is just evil, I already disliked him, but after that I can't even name what I feel.
Rogers:
Set up a PayPal link for the legal defense fund. If you don't need it, donate the money to a charity. Count me in for cash...
Steve
The only surprising thing here is that Rogers chose to do the business in the first place.
You should never have gotten involved with the man in the first place ...
Clearly, but I can't say that today without sounding like Waylon Smithers after Mr. Burns replaced him with Homer.
All of the offers for my legal defense are both heartening and unnerving at the same time. I'd really like to avoid going to court over an OPML web application with combined out-of-pocket costs of $15,000.
I'm probably conceding a weakness here against benefit of counsel, but when I got that lawyer's overnighted letter Friday, I clenched so hard I pulled my sphincter.
Even earlier in the 90s it was obvious. He got pissed at Apple because they chose applescript instead of Winer's "usertalk" used in Frontier. Frontier was a slow piece of crap.
Then all his love for Microsoft and SOAP. SOAP sucks ass too.
No people, I'm sorry to say this guy is never going to "retire".
Dave's side of the story is up:
scripting.wordpress.com
Also unsurprising are some details that Rogers left out.
Winer says: "He asked to handle this matter privately and using attorneys, both of which I agreed to."
Is this true? If so, well,.... If not, well....
Sorry to hear about your trouble. Even if he only wants the $5K, his lawyer is being a lawyer (not a human) and going full throttle. Intimidation is part of that game. Just get a lawyer, he or she will probably write a similar letter back -- and tell you to otherwise say *nothing else* to the other party, especially on the Internet.
Dear Mr. Cadenhead:
1. You might wish to ask your attorney to consider a counterclaim against Mr. Winer for possible fraud, unjust enrichment, RICO and antitrust violations, with consideration to asking a jury to decine upon triple damages, attorney fees and a constructive trust.
2. If Mr. Winer has a PR person, their advice is ill-considered.
3. I don't reckon a jury would like Mr. Winer very much -- juries never identify with overbearing Goliaths in business litigation. See, e.g., Wall Street Journal reporter Thomas Petzinger's book, Oil & Honor (on Pennzoil v. Texaco).
4. Sure sounds like Mr. Winer might ought to consider quitting while he's ahead, or as my mother would say, "drop the oyster and leave the wharf."
Cheers to you and your family!
With kindest regards,
Ed Slavin
Box 3084
St. Augustine FL 32085
904-471-7023
OH. MY. GOD.
I think it's such a shame when people fall out, especially over matters like this. I kind of know how you feel and have reacted similarly in the past, hanging it all out there/here. It's a cathartic process. But usually I end up regretting it, in a way.
I wish we could all sit around a campfire and sing kum-by-ya - ... no, really! :)
Aaaanyway Rogers, this OPML system sounds really cool, and not 1 million miles away from a large part of the system we are developing over at podcast.com
Drop me a mail. I'll show you mine if you show me yours ;) lol
OPML POWER!
Cheers!
Kosso
Is this true?
I suggested we put our attorneys together to work something out. Instead, I got that letter.
My impression is that he'd rather hold the money and the prospect of litigation over my head than draft a simple agreement to settle the matter.
To be fair, there are some big holes in Winer's side of things. Lots of details are left vague, and in true Winer form, he's right about everything and anyone disputing him is entirely at fault.
Cadenhead says they were unable to come to an agreement, which suggests some details were added that violated the spirit of the verbal agreement. Winer just says Cadenhead is at fault for refusing to sign whatever was sent... and I'm sure in Winer's mind, refusing to agree 100% to his terms DOES make you wrong. It's certainly the approach he's taken with the RSS Board.
I'd also be interested to know exactly what they agreed to resolve using attorneys.. just the $5K dispute, or the site takedown demand as well.
I've got no horses in this race, but I though this post at OPML Factory was interesting - opml.cadenhead.org
Greetings. We're almost ready to show this to the public, and in fact right now there's no password on the site, so please don't pass the address on yet.
We've rebuilt the site from the ground up, with the same data as before -- your OPML subscription lists -- but with a new back-end running in MySQL, so it should be able to accomodate more users, more feeds, and of course more shared OPML!
Thanks to Rogers Cadenhead for another miraculous programming job. But this is just a new beginning, as we climb back on board and find new cool stuff we can do with All That OPML.
- dwiner
Obviously there was a time that Dave was pretty happy with where the stuff was running and how it was working.
So what's the sticking point? Is it the 33.3% ownership of the site?
It would be interesting to compose two lists:
One list would be everyone who ever worked with Dave Winer.
List two would be members of the first list who will never work with Dave Winer again.
Dave's been around and done a lot of things so list #1 is going to be long.
The problem is that list #2 is long and getting longer.
At some point, you have to wonder if all of those people on list #2 are really to blame, as Dave says, or if it might be more logical to point the finger at the one person they all have in common, Dave Winer.
There's no way a gassbag like Dave can stop blogging. Those crazies always need an audience.
Disclosure: I've never been Mr. Winer's biggest fan.
That said, I guess it is no surprise that I don't see him being in the right here. The issue is this (as I understand it), Dave and Roger entered into a business in which Dave's initial investment was $5K and Roger's initial investment was the programming work to create the thing. They then had a falling out (and anyone who doesn't think this is actually about the RSS Board is kidding themselves) and Dave wanted to pull out of the deal.
At this point, in my opinion, they should just part without any further exchange. Dave doesn't get his money back because that was his investment and Roger doesn't get to put up the site with Dave's data because that was his initial investment.
Basically, it was a bad investment by both and they both lost what they put in.
The only lesson that I think can be learned here is that verbal contracts are stupid. Stuff like who owns the data, what happens if the deal falls through, etc ... are all a toss up which is why you need a written contract to specify these things.
welcome to business.
when you told dave that you wanted your attorneys to talk this over you should have expected this letter.
when you posted this letter on your website instead of giving it to your attorney you violated the verbal agreement that you made to dave.
it seems like you are fairly apt at violating verbal agreements.
i dont think this is gonna help your image with future customers.
I'm not a lawyer, but there's something amusing here... If you read this as an independent contractor arrangement, where Dave is hiring Rogers to build the site, then there is the contractor vs. employee work-for-hire difference of intellectual property law to consider. That is, someone hiring an independent contractor does not automatically own the work without a written "work-for-hire" clause, obviously not present here; then, Dave doesn't automatically own the work with regard to derived works.
On the other hand, if they had discussed Rogers owning part of the site but had not yet decided on the written terms, and Rogers begun work in that context, note that THE STATE IMPOSES a de facto partnership agreement where no formal agreement exists in writing. And the de facto agreement typically splits everything down the middle, so that Roger is a 50% partner (or, worst case, 33.3% if Dave shows Andrew Grumet's previous work to be a partnership type agreement) until a written agreement of all parties supercedes this. If seen that way, Dave contributed his rights in the software into this partnership, so that he can't do anything further with it either until this issue with Rogers is resolved.
And either way, the law prevents an offeror (Dave) from revoking an offer once substantial performance has begun. If Dave's "Thanks to Rogers Cadenhead" quote above refers to this work in question, it more than satisfies the "substantial performance" condition, making the attorney's demand to return the $5,000 entirely baseless.
Plus, an attorney with contract law expertise would probably find another dozen things I missed... :-)
Comments Count @ 10:00PM 3/15/06
Workbench = 47 comments
Dave's Wordpress Blog = 2 comments
This sounds simply psychotic. Wshew.
p.s., rogers, that was one way of saying sorry you're finding yourself in this mess. if you think his lawyers are bad, watch out for his posse. ;-)
Rogers,
I feel for you, and you know I can truly sympathise.
It's unfortunate that you weren't able to learn this lesson in advance, by watching how he dealt with others.
I wish you luck in finding your balance again, after being hit by him. It sometimes takes awhile.
Steve Kirks recently went through a very mild version of what you're facing. I sent him some very well-received comments which I'd like to send to you also. Send me an email if you're interested and still have my address.
Seth
First of all, let's acknowledge that this is a private business disagreement between two people. These are the types of disagreements that require judges to examine both sides and give careful consideration.
Nobody here has the facts. We don't know what the disagreement is over, even.
The story seems to be:
* Dave handed over the existing code and data, and $5,000 to get started
* Rogers converted it to PHP/MySQL
* And the two of them could not agree on final terms
Was it a simple miscommunication? ("You said 33% ownership!" "No, I said I might be willing to give some ownership but we never said an exact figure.")
Or perhaps they simply couldn't come to terms on a written agreement? I mean, deals "fall through" all the time. The devil is in the details.
Or perhaps someone got a bit greedy? ("You got $2.3 million for selling my code, perhaps instead of $10,000 you should pay me $100,000?" Or, "It only took you a weekend? That's not worth $10,000 plus 33%.")
Whatever the case, I tend to agree with a previous poster: Dave gets his code and data back, the new site comes down for good, and Rogers keeps the money. Seems the fairest thing. Unless it was Rogers who wanted to change the agreement, in which case he has to return the $5,000.
I also agree with one other poster, who said it's sad to see two friends part. It is always sad when that happens.
I just spent some time over at opml.cadenhead.org I seem to be missing what intellectual property Dave is talking about. Unless he is secretly Matt Mullenweg?
Rogers,
All I can say is, I'm sorry for you. In the long run this will be a learning experience. I just hope in the short run it doesn't become expense.
Let us know if there's a Paypal link.
My comment to Dave:
# Buh Bye Says: Your comment is awaiting moderation.
March 15th, 2006 at 8:02 pm e
The sad truth is that the world might give you the benefit of the doubt once every so often if you weren't such a complete and total assbag to begin with.
I think Rogers got exactly what he bargained for by doing business with one of the better documented douchebags of the new millennium. That's actually the funniest part, where the guy who was willing to bang a lass with open source, finds out he's got the clap.
Go and retire already, you haven't added much in the last 5 years except a lot of passive-aggressive invective and bad blood. Leave while some of us still remember the things you did which aren't filed under general douchebaggery.
Plus, Mark Pilgrim, is roughly seven million times more entertaining and well-reasoned than your emotional ass.
Don't let the door hit you on the way out.
I was chuckling to myself reading this post; chickens homing to the roost has never been more amusing. But you redeemed yourself (and won my sympathy/support, fwiw) with the last sentence.
Re weblogs.com, let's just say you were blinded by an opportunity so glaring and sexy, it temporarily obscured Dave's radioactive asshole aura.
Good luck with all this.
Why couldn't you reach a written agreement with Dave?
You got a letter from a lawyer. You disagree. You post the note on the web for a little ... well, why did you?
Next time get over yourself, send your lawyer the letter (as per the first line of Dave's L's letter.) and move on.
Roger up there (welcome to business) does make a good point about going to legalsville
This thread makes me sick. Do you all feel good about public lynchings? Don't wait for facts. Don't try to see both sides. Don't try to work things out. Just throw up the rope.
Pathetic.
Rogers, I found this from Metafilter and was dismayed to see that yes, this is the author of my Java book :)
Well, I want to give you some advice, and I mean it in the strongest way (but not as legal advice - this is my CYA disclaimer - I'm a JD but not a lawyer).
The advice is, retain a lawyer right away. It is more important than you may think. Don't say any more about this in public until you do. It may get ugly, but you may end up less ripped off in the end.
And ask your lawyer whether you have grounds for a countersuit. Really.
Good luck, and thanks for the excellent Java book.
Is this what scoble means by naked converations?
Rogers has sought relief in the court of public opinion, not an uncommon strategy, and it seems to be working well for him.
This page may be an asset in further negotiation; i.e. Rogers can remove it in exchange for concessions by the other side, e.g. call off your attorney, or call in a mediator.
If he prevails in this medium, it will be another milestone for the blogosphere. In any case, I look forward to the next episode.
I might be missing something here, but isn't the easiest defense for Rogers just to do the actual work? If you complete the project to specification, he has no claim, contractual or otherwise. In fact you would have a claim because you've not completed a written agreement to supercede the verbal one, doesn't mean that the verbal one is null and void - it is still the contract in place.
Stop defending here Rogers and go on the offence. Do the work you agreed, then you're the guy who is out of pocket the coin. Worst case scenario is that you own 33.3% of a website with a jerk - but at least he can't sell it without paying you for your efforts.
Can't the Pope do something?
Why don't you ask the third party that was involved and has yet to speak up on the matter. There are obviously TWO Rogers in this matter as many times above Dave mentions that Rogers did the word and Rogers took the money etc. There are obviously two people named Roger involved. So who's the other Roger? Not Roger Smalls, I hope.
For someone who is always moaning about 'back-channels' Winer seems to be taking this 'open conversation' very badly.
Sorry this happened to you Rogers ... at least you've learnt a lesson from all of this.
Rogers, you've my sympathy. I lack your diplomacy and your good grace and your fairness - I would not have been able to do what you've been doing for the last few years. You've helped out Dave many times. You've had the compassion to deal with a man who is clearly disposed to bouts of depression, self-pity, and passive-aggressive lashing out at others. I would have been too angry to deal with him. When disputes have arisen between Winer and the larger community, you've played the role peace broker and you've done it well. You've managed to be fair to Dave when he was clearly not being fair to others, which is something I'm incapable of. You've gone on dealing with both sides in good faith, even when Dave was clearly not dealing in good faith with those whom he saw as threats to RSS. As painful as this episode must be, I believe you'll come out the better and Dave the worse off.
As someone mentioned above, I do understand the power of the "court-of-public-opinion". However, I fail to see how this action (publicly posting the content of this letter) will help to resolve this dispute any faster. Seems to me this is one of those times when a matter should have been kept private, especially if that's what both parties agreed to do.
Rogers' defense fund ? count me in.
I (as you) tried to convince myself for a long time that it wasn't Dave who was the problem. We were wrong.
Who will Dave turn on next ? I suspect Mr. Arrington is the most likely candidate.
This is just too funny/sad. Dave Winer did the exact same thing to his programming child Userland Frontier (and it's child, Userland Radio).
He took a visionary idea, started implementing it, incorporated the work of enthusiastic volunteers and low-paid staff, grabbed credit wherever he could scrape it up, alienated everyone around him (including his small cadre of yes-men), and then, recently, realized that he'd pissed all over what might have been his first step in cornering the blogging market (so to speak).
(I'm still using Frontier because it does some things so amazingly well.)
As I said to Dave way, way back in the mid- to late-1980s: Dave, get a therapist. Acting out isn't going to fix what's wrong with you. I can't believe it's 2006 and Dave is still acting this way.
Unbelievable.
Oh, and I'm in for $5 when the legal defense fund is announced.
What an ungrateful bastard -- the Internet will be a bit more respectful to each other once this pinhead has retired.
In my reading of it, Winer is screwed.
You never signed a work-for-hire agreement. He never paid you what you agreed on. So he has NO RIGHTS to your code.
If he sold it for $2.3 million, that money is yours. At least, any part of that which is connected with your code.
Arguably, that's a lot of it. Depending on how good your lawyer is, most of it.
By starting up with you, he opens himself up to a countersuit in which you state that he is illegally violating your copyright in which you can also threaten to take down the site with a DMCA takedown for illegal use of copywrited materials.
In fact, all that's necessary for a DMCA takedown is that you state that you have a "good faith belief" that your copyright is being violated.
This would then leave him open to charges of fraud because he sold something he didn't own.
Oh yes, he's screwed.
And you could end up at least $1.15 million richer (after your reasonable settlement).
I've always thought Winer was an a-hole as soon as I heard much of what he had to say. Sorry you're having to deal with such a loser. And I'm sorry that Winer has to be such a loser when he has so much going for him.
But I'm glad you posted the lawyer's letter. People with power or who perceive themselves as having power hate it when their paper trail gets displayed.
This seems very cut and dried to me. Someone pays you $5,000 and you don't deliver. You need to return that money ASAP and apologise for wasting his time. Any other considerations, like the amount of work you may have undertaken, are irrelevant. You haven't delivered, but you've still held on to his money. End of story.
@James Richardson
You didn't read the whole post, did you? Like this part from Rogers:
I developed the web application over the next two months, producing a 1,602-line PHP class library, 50 PHP scripts and a MySQL database that holds 1,438 members, 68,773 RSS feeds and 174,354 subscriptions to those feeds.
The work seems to be finished.
It doesn't matter that the work is finished if it hasn't been handed over!
I'm on your side here, Rogers, but I'm curious about what Dave said regarding source code. Did he give you the existing source for feeds.scripting.com? I doubt it was of any use to you (i.e. I consider it extremely unlikely that you somehow ported his code to run on LAMP) but, if you've seen his source and then developed a similar product, that would seem to put you in an awkward legal position regardless of whether the source was of any use whatsoever.
Also, just out of interest, why didn't you sign the agreement in the first place? Dave makes it sound like you stubbornly refused to sign it; is that true?
I totally understand your grievances with DW and even though I didn't read thru the comments (as I'm sure there are plenty of DW fans that are gonna jump in on this one and since I know what I know it doesn't matter anyway), I wish you good luck and best wishes.
Deposit is a none returnable payment to secure services or work.
I f you started work but he cancelled the project then the work and money should still be yours?
RSS is dead anyway now MS want to but their stamp on it. That normally kills any standard ;-)
As any moderately experienced Dave-watcher will tell you, it's all about the limelight. His motto: there is no such thing as negative attention, any kind will do. In fact, the more controversy the better it seems.
So he announces the end of Scripting News 9(!) months in advance, he starts picking fights again via his ad hominems on his blog and apparently he is using lawyers for this too. As long as people (we) are talking about him. Wants to be left alone? Nah...
But I am worried about his emotional state, somebody needs to keep an eye on him I think. He does come up with some clever software once every while you know.
Also, just out of interest, why didn't you sign the agreement in the first place? Dave makes it sound like you stubbornly refused to sign it; is that true?
I didn't sign the contract he sent because it wasn't the terms we originally negotiated at the start of the work. Instead of a partnership in which we own the resulting site together, it was a work-for-hire deal.
Also, the terms in the 2,800-word agreement were so tilted in Dave's favor that my attorney said I couldn't possibly sign it. Here's one example:
Consultant agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets (collectively, "Inventions") conceived, made or discovered by Consultant, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the business of the Company that Consultant may be directed to undertake, investigate or experiment with or which Consultant may become associated with in work, investigation or experimentation in the line of business of Company in performing the Services hereunder, are the sole property of the Company. In addition, any Inventions which constitute copyrightable subject matter shall be considered "works made for hire" as that term is defined in the United States Copyright Act. Consultant further agrees to assign (or cause to be assigned) and does hereby assign fully to the Company all such Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto.
I responded by sending a contract that matched my understanding of the deal.
Thanks for explaining about the contract. Makes sense to me. (Dave shouldn't have paid you a deposit if having a signed contract was so important to him.)
Are you intentionally reserving comment on the source code issue?
Are you intentionally reserving comment on the source code issue?
I don't know if I was sent the source code to the original site because I didn't need it to create the new web application. As you've suggested, Windows Frontier and LAMP-based applications are too different for the source to be useful, and Winer and Grumet developed the original on data he made available to the public in an SDK.
Rogers, sorry to see you going through this mess.
For what its worth, even though we've been on opposite sides of certain arguments, you've always taken the higher ground, and yet still with an open mind. For that I respect you.
I had some hopes that the RSS Advisory Board, with you at the helm, of guiding RSS into cleaner, better clarified waters. I think you had (and perhaps still have) the best chance of suceeded, based on what looked like a good relationship with Dave Winer, good standing in the developer community, good standing in the media community (with some brilliantly hillarious interviews around pope-squatting), and the ability to keep a clear head and focus in the face of heated discussion.
I hope the shenanigans above don't quell your appetite for making a positive contribution.
You were the guy that stepped in to help when weblogs.com went dark. You went way out on a limb. That sort of friendship is valuable, and not done lightly.
Sorry you got burned - you deserve better.
Thanks for sharing that detail. So the terms of the agreement, as you understood them, changed from the time they were verbally made until they were provided in writing? That's rotten for you. Seriously. However... as you have said no to the written agreement, and haven't provided the client with anything, but are still holding his downpayment, the client should be reimbursed, and promptly. That's Business 101, surely?
It seems YOUR mistake (a very common one) was to proceed with the work before a written agreement to your liking was in place. But you can't expect a client whose revised terms you don't agree with to reimburse you for your error, and for the work you did. It would be nice, but I've never seen it happen.
I should have added, after the Weblogs.com thing there's perhaps an argument that the client was morally obligated to offer you a share in a future venture, but unfortunately, courts tend to look only at the facts of the issue at hand, and in this case, to my mind, the client holds all the cards.
Have you considered settling this by touching swords?
Seriously, I'm working as a full-time technological consultant. I had multiple contractual disputes over the years. But THIS, posting it on the net, "he said, she said", lynch-mob thing is pathetic.
I'd guess that Dave didn't do so much as call his lawyer and give him your contact address, it wouldn't be the first time that lawyers go over the top with their claims, in most legal systems they have to to get the things they want in the end.
But posting it on the internet (not the full story mind you, just what suits your point of view) to incite a Winer-lynch-mob and then "clearing things up a little bit, but not a lot" in the comments.... just so much that the bashing doesn't stop...
You should be ashamed of yourself. Write a new post, add all the information you so conviniently "forgot to mention", not because Winer deserves it, but because it's the right thing to do!
...and then settle this in silence.
Jonas:
As a previous victim of Dave's, I have a unique insight as to a possible reason why Rogers made this public. Dealing with Dave Winer over the last three years put me in several different emotional states. The last one was the most destructive: I was seeking his approval much like I would from a father figure. I tried to win his respect by amplifying his actions, coming to his aid (I helped with the weblogs.com weblog outage with Rogers and Dave) and offering contributions to his software (Radio UserLand and OPML Editor).
I shared my episode with Dave publically because I felt that more people needed to know that Dave is not the person he seems (virtual Dave or real Dave). I was emotionally hurt because someone I helped and lifted up through kind words and code turned on me. It's a mistake I won't make with him again.
Discussing this in public might seem unseemly to some, but Dave Winer made his choice nearly 10 years ago when he started to live his life in the public eye on his weblog.
Of the many things I've read since my incident and this one with Rogers is that we all have the ability to "unsubscribe" from the whole thing. To me, this is not a soap opera or a story; it's the life and livelyhood of a friend. I can't unsubscribe from a friend.
Steve
Thanks for your patient clarifications, Rogers.
My advice: Let it go. Take down the sites, send him $5000 and move on. It's not worth it. I'll contribute to any fund that you start to pay him off and move on with your life.
I can shed some light on the Horseonovich II comment over at Winer's blog - I was going to put up a post calling him an asshole, but I noticed his comments are moderated so I wrote something he would publish, because I am a publicity hound. And I still managed to point out that people think he is an asshole, though some of those people might be from Cruel. Like me.
And don't whine about it, Cadenhead - you opened this can of worms, be thankful your grandmother isn't being dragged into this.
Love,
Meg
Time to register "davewinerisanasshole.com". This guy is seriously one of the biggest dicks currently alive, and I don't mean that in a complimentary way. He's always claiming that something is his, something was his idea, he was wronged in some way...when Dave Winer dies it will be the happiest fucking day on the Interwebs. Personally, I hope he gets VD and his balls fall off. But then, you have to have the ability to get laid in order to catch an STD. Too bad.
Idle curiosity: are the typos (e.g. arresting instead of attesting) yours or the mouthpiece's?
It seems to me you have not answered any of his criticisms and are trying to bluster your way out of this and make Dave look like a fool. Makes you look like the small man, not Dave.
Idle curiosity: are the typos (e.g. arresting instead of attesting) yours or the mouthpiece's?
That was a typo, so I've just corrected it.
Hey - That wasn't me of the copious golden horsey love - I have nothing but respect for Cadenhead, regardless of my having to threaten to sue him in the past.
1. This is more to Steve Kirks. Thanks for sharing your Dave experience. "You're not special" is one of the vilest, most crushing and yet funniest things I've ever read. My sympathies! I'm dying to use the line on friends.
2. People who paint Dave as the devil incarnate need to get a life. His blog is a must-read, and he's a character. Yeah, a complex character. But aren't we all?
3. Rogers: the best $5,000 you ever spend is the $5,000 you return to Dave. Life: it's not only too short to waste a moment on stressing fizz like this, it's all bullshit. Pay the money, then go dance in the spring sun! You'll be a happier freer man.
It seems that most of the people in this thread taking Dave's side don't have links from their names.
Quick point: James Richardson is, in everything he's said here, wrong. I'm sure you probably know that but I wanted to make sure someone said it.
Bottom Line: If someone gives you money with no written contract to prove why they gave it to you, they've essentially given their money away for nothing. With no proof of why they gave it, no court would award it back to them.
As far as "Business 101", even if this was a consulting deal (which it doesn't appear to have been from Roger's POV) Deposits are always NON-RETURNABLE (as someone else said above). No consultant I've ever met has taken a deposit to start a job, had the customer cancel the job midway, and returned the deposit. People couldn't stay in business that way.
Andrew:
Fourteen years ago, and a misdemeanor -- www.tidbits.com .
Wow, it's a wonder you don't walk around in a bulletproof vest, with hardened criminals like that knowing your name.
*sigh*
Hi Rogers. Roblimo is a friend and coworker of mine. He says you're a good guy. I read a bit of this site and your Wikipedia entry and concluded he was correct, even if you are a liberal pantywaist. No offense.
So this all started because a third coworker pointed me to Winer whining about you, so I linked over here (not from his site of course; he would never link to something he is criticizing, if it has the capability of refuting him) and I concluded what I figured after reading only Dave's post: that as usual, he was simply lying.
What's remarkable is that I imagine many people, like me, assumed you had done nothing wrong simply from reading Dave's side of the story. No links to you, no links to any resources backing up his claim ... it's a common Dave pattern. When he specifically neglects to back up his story, dollars to donuts he's fibbing.
I hope this bring some comfort to you. We all are concerned about our reputation, and I think that for many of the people who don't know you, and know only what Winer said, that they won't be swayed into thinking you've done anything wrong.
Glad to see you've come around to see Winer as the rest of us have for many years. Good luck to you.
Dave stole RSS from Netscape and never had to pay restitution.
After reading this and the response, I'm reminded of a Danny DeVito quote from "Other People's Money":
"Lawyers are like nuclear warheads. We have ours cause they have theirs, but when you use them they @#&$ up everything."
Rogers - IANAL, but as John Stanforth mentioned above copyright ownership does accrue to the one who actually does the work and ownership is transferred only via written agreement. If both parties contribute substantially to the product it becomes a work of JOINT AUTHORSHIP. The reason copyright transfer must be in writing is to remove such overbearing threats where one party takes undue advantage of the creative expression of others. I speak from painful, expensive, paid-for but settled experience.
If there was an intention where the two works were to be joined to the mutual benefit of both parties and this was freely entered you should really wrap up this problem in public and discuss it with an attorney.
If someone else has already mentioned this - my apologies, the comment list is getting huge!
"I felt that more people needed to know that Dave is not the person he seems"
I think most people know that Dave is *exactly* the person he seems.
Tom, thanks for pointing out how James Richardson is plain wrong.
So come on, friendly lawyers -- offer to help Rogers pro bono!
I like Dave. I've learned a lot from him. I think his politics are lame.
He does have a strong personality which over the years has rubbed a lot of people the wrong way, for sure.
Calling in an attorney over 5K and whatever principle he feels important is lame, especially if he has a milski or more in the bank. Didn't know he was so cheap and didn't pay programmers much. 10K, 5K. God he is a tight wad. I've always imagined him to be a generous person. Not with money obviously.
Give him back the 5K and be done with him.
Give 'em the 5K back, but in nickels.
No 5K for Dave. He'd just spend it on self-administered high colonics and make everyone watch.
Think of the children.
I'm a 1L. I'm not going to give you legal advice except to tell you that based on my grasp of contract law, I think you have the better of the argument, here, and ought to be able to recover both the balance owed you on the project and the 1/3 interest in the site.
Don't make the mistake of bringing a knife to a gunfight. Get a good contract lawyer.
Andrew:
I guess my feelings aren't as strong on that subject. I think virus-writers are obnoxious jerks, not irredeemable psychopaths.
"even to the point of turning a minor business disagreement into a federal case"
Reading your post and Dave's, it sounds like *you* told him to leave this to the attorneys. In that case, why is it surprising to receive a letter from an attorney?
"I figured that one of us would eventually end up taking over the project and the other would recoup his original investment"
I think this is what the attorneys are meant to be talking about. Can you hire one and instruct him to try to work something out like that?
I've deleted most of the exchange about Mark Pilgrim. He has nothing to do with this Share Your OPML disagreement and to my knowledge hasn't said a word about it.
Neither does the Pope, but that comment remains. ;)
Rogers:
FWIW, I have no problem with that deletion. I agree it was getting pretty far off-topic.
I posted this on Nick Bradbury's blog, and I figured it ought to be reprinted here for people who are scoring at home.
From my perspective, the contract I was sent differed from the original verbal agreement in two important ways.
First, it was treated as a work-for-hire deal rather than a partnership, lacking language that established my one-third ownership of the site and web application.
Second, the terms in the 2,800-word agreement were so tilted in Dave Winer's favor that my attorney said I couldn't possibly sign it. Here's one example:
"Consultant agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets (collectively, 'Inventions') conceived, made or discovered by Consultant, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the business of the Company that Consultant may be directed to undertake, investigate or experiment with or which Consultant may become associated with in work, investigation or experimentation in the line of business of Company in performing the Services hereunder, are the sole property of the Company. In addition, any Inventions which constitute copyrightable subject matter shall be considered 'works made for hire' as that term is defined in the United States Copyright Act. Consultant further agrees to assign (or cause to be assigned) and does hereby assign fully to the Company all such Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto."
I responded by sending a contract that matched my understanding of the deal and figured we'd eventually work something out that was mutually agreeable.
But there's a big problem when two parties disagree on a verbal agreement that has resulted in work. If you can't agree on a written contract to proceed with the work together, you have to agree on a written contract to proceed in some other form.
It's a huge pain, and I'll be eager to reach some manner of resolution that puts the prospect of litigation off my head.
I have a strong legal and contracting background and Rogers you are correct. When you have a verbal agreement that both parties wish to supercede with a written agreement, if the written agreement cannot be reached, you effectively have an impasse. That's why large companies discussing things like mergers use Memorandums of Understanding - they outline the high level principles in writing so that it takes the verbal agreement towards a written agreement. An MoU is not binding, but it shows the intent of the future agreement.
I would suggest that yourself and Dave go back to square one and try, in writing to reach a high level agreement on the basic points of your arrangement. In particular, why were you paid an advance, what future ownership stakes each would have and then finally the bulk of the remaining fees. You also should write down the trigger events for these stages. I think you situation is actually salvageable, but you and Dave have to treat it like a business agreement rather than work between friends.
If he is reluctant to go down this road, then I would say, in my experience he is trying to screw you on the 1/3rd ownership. The money is not the issue, its a total smokescreen. Based on his experience with weblogs.com he obviously feels that the potential of the new site is significant enough to try and run a contract game on you. As someone else said, if you complete the work you're covered - you don't have to turn it over to him. By completing the task for the advance and holding it in lieu of an agreement, you would establish a pattern of behaviour where you acted in good faith which is VERY important in relation to contracts, particularly verbal agreements. Its why contracts are loaded with things like "best endeavours" because it establishes good intentions.
Good luck, but do go for a settlement with Winer without the lawyers, but don't give up your 1/3rd claim - that's you big negotiating stick.
I'm not clear on what Rogers is holding out for. Is he hoping for a 1/3 interest in a site that Dave might be able to grow and sell for a nice payday? Obviously, the $5k isn't/shouldn't be that big a deal for DW, even on principle. Would Dave let you keep running your own version of the site?
This would all seem easily resolveable unless we don't have all the information which apparently we do not.
Myself, I'm still trying to get over the 10K for a weekends work. Rogers, you certainly have some chops, but c'mon. Ten thousand bucks for a weekend?
That's a fair wage.
Yeah, Winers a greedy asshole, but the man wants to walk away with something in his pocket. Just like the rest of us. You ever hear that tired parable about the snake who bites his mentor? You saw 1/3 of something after a third of the last thing was worth 700K -- too bad about those fangs.
The lawyer next to me says you can't lose (she also says that she is not YOUR lawyer) in court but that you also can't afford to litigate. She also says your a jerk for taking a private business dispute public. In the end, you both lose -- you lose more though, Dave will go away (with his money, his bum heart and his desperate need to get laid) but you'll be remembered as the guy who prints letters from lawyers.
don't know winer, and glad i don't. sounds like he's got an apt surname.
This brings back to mind an incident years ago involving Dave:
I always wondered why people thought Dave was so wonderful.
The Dave Winer Countdown clock:
Make it go faster! :)
"...a syndication format that will forever be mired in childish personal animus because of his mistaken belief that allowing other people to contribute to its success will rob him of credit."
Excellent summation. Get clear and stay happy.
- By starting a project without a signed contract, you were asking for trouble. By "you" I mean both of you. How old are you two again?
- If you did indeed suggest that the lawyers be called in, what did you expect from a lawyer, a love letter? Have you never seen anything written by a lawyer?
- If after suggesting that the lawyers be called in, you posted the lawyer's letter on the web, how can anyone confidently do business with you again?
You both need to be more mature here. Airing your dirty laundry just makes you out to be teenage girls having a bitchfest.
Perhaps if you met face-to-face regarding this issue, you could easily solve the problem. Making agreements using email or by telephone may not be the best method, considering a majority of communication is nonverbal. Did you not read this?
This whole situation just proves to me that litigation has gone too far. How about burying the hatchet (both of you) , shaking hands and getting on with what seems to have been a mutually beneficial relationship until now.
If you want to get your lawyers involved (which would have cost more than $5,000 by now I am sure.) Why not get them to do something constructive and draft up a written arrangement that actually works to both of your benefit.
In a couple of years, nobody will remember or care who was in the right or wrong. In the meantime you could have a new revolutionary $2.0 million idea/website/system/concept/protocol.
You are both obviously very intelligent men. Pay my travel and expenses and I'll happily mediate. Is this relationship really beyond a simple "I'm sorry, let's get back to work."
Sanity. Please.
Wayback Machine's archive of the MacKiDo incident mentioned above:
Man, this bites.
Count me into the crowd that says ditch RSS for ATOM. This is absolutely bad form on his part.
On Slashdot, we have only non-Winer syndication formats available: RSS 0.9, 1.0, and Atom 1.0.
Interesting to note that NONE of the comments taking Dave's side have a LINK! Did he write them himself?
EVERYONE should GET TOGETHER and begin a SWITCH to ATOM (setup switch2atom.com and SPREAD THE WORD). Only that would take away the most precious piece of crap Dave ever "invented". Or was that OPML?
Is there anyone left out there that doesn't think Dave is the biggest whiner on the 'net?
$15,000 is below-poverty wages, regardless if it takes you a weekend or a year to do it, particularly if all your work is to revert to the "Company."
Winer forgot that he posted publicly about his $200 lunches.
I'm sure your kids could have used the money.
Good luck to you, Rogers.
I'm impressed by those of you who say that Rogers shouldn't air his dirty laundry.
Small businesses and individuals are supposed to be threatened with litigation and silently cave?
This faux paus of which you speak sound like it was crafted by a lawyer.
ljack is dave winer a example of bullshit on inyernet ? at least?he intoduced Jack andAi Anita so he does have that is in his favor. hI woulde
The first thing any lawyer asks you when you want to sell something (web site, technology, whatever) is: "Does anyone else have any potential claim on what you're trying to sell?"
I think what is happening is that Winer is planning to sell off the technology and wants to have a formal (legalized) conclusion of his relationship with Rogers so that he will have a totally free hand in the negotiations. This is the sort of letter people send to accomplish this kind of thing, in my experience.
In the interest of illustrating this Melodrama i offer another cartoon. Only this time i'm playing it safe. If you don't like it, just clone your own and mutate it to whatever better fits the drama.
It's worth noting the tone that Winer took with Sam Ruby: "Does his boss know he's doing this?" If you are self-employed, then Winer sues you. But if, like Ruby, you work for a large corporation with a huge legal team, then Winer does not sue you. He does, however, subtly suggest that your boss should fire you. Exactly as Winer did in Mackido incident.
As the blogosphere turns...
And now Mark Pilgrim is back.
I think my head is going to explode!
STEVE KIRKS:
I've come to this issue late; nothing has been posted for 10 days now. All very entertaining reading on friday afternoon waiting for Beer O'Clock to be announced at work, until I came upon this posting:
I shared my episode with Dave publically because I felt that more people needed to know that Dave is not the person he seems (virtual Dave or real Dave). I was emotionally hurt because someone I helped and lifted up through kind words and code turned on me. It's a mistake I won't make with him again.
After following Steve's link, it's clear to me:
Dave Weiner is a khunt.
I have read both sides of the story and figuring out who is credible and who isn't is actually a simple exercise. Winer claims that this letter from his attorney was something that Cadenhead agreed to as part of a private settlement, and that this was Cadenhead's idea. Whatever Cadenhead said about working it out with their attorneys / "sitting down with" their attorneys and no matter how he phrased it, the one thing we can be certain of is that Rogers wasn't soliciting from Winer a cease-and-desist letter threatening him with a lawsuit to the tune of several hundred thousand dollars. The fact that lawyers are involved in both scenarios should not blur the obvious distinction between using their lawyers to work out the details of an agreement, and using them to launch a broadside attack.
The difference is plain.
The fact that Winer wants us to believe against all common sense that receiving this sort of letter was Cadenhead's idea to begin with, and that Cadenhead agreed to be attacked privately in such a manner, shows not only that he is not being sincere, but that he is probably not used to being sincere, and out of this habit doesn't perceive how disingenuous he comes off or that this story simply isn't incredible.
Furthermore, Winer seems to attempt to assign blame to Cadenhead for things that nobody would think are blameworthy; for example, refusing to sign a written agreement, which is something that everyone has a right to do if they don't agree to what is written in it.
Add it up and you have two stories: one of which hangs together, and the other does not.
I don't know whether Mr. Winer is a jerk or any of the other things alleged here. What I do know with a great amount of certainty based on witnessing the sorts of excuses he makes for his position, is that he is not to be believed.
Also there is nothing wrong with posting a legal threat publically. This isn't like private correspondence. A lawsuit is a public act, and so is a threat of a lawsuit. Requiring that people keep legal threats that endanger their livelihoods private as if it were ordinary correspondence is fundamentally misunderstanding the nature and purpose of a legal threat. It's not just a communication; it's an action. If someone is attempting to harm you, you should at the very least be able to "go to the press" about it. Far from a breach of personal ethics, this is fundamental to a free society. If Winer is right, Cadenhead agreed to try to settle it privately through their lawyers. He didn't agree to submit to private threats. Again -- why would he?
Enjoyed browsing through the site. Keep up the good work. Greetings
Dave Winer is a tool. The only thing that depresses me here other than you getting tortured by that weasel... is that the words million dollars and Dave Winer are in the same paragraph.
Thats how attorney are.
P.S. i am a german attorney :-)
Great article, can I translate it and put on my site?
Great stuff, any information about new version of this?
Nice site, good work!
Hello!
This is wery intresting article.
Thanks for this.
Best regards
Its old hat. Dave is not keen on something, Dave reckons he got a bad deal ,or Dave thinks afterwards; 'Hey man, your a tycoon so act like one and get your screw you book out,' The stumbling block is the 33% split and Daves now got one, maybe two better ideas, so your out. The impasse breaker is Dave might need you again, Dave might get you to surrender the 33% cut, and Dave gets to keep your Apple Pie. In life always look for the undisclosed hidden motive. Daves Dave and Leopards have spots.
Why couldn't you reach a written agreement with Dave? Welcome in Boleslawiec - best polish hotel in Boleslawiec!
Damn that's a good thread.
Spud finished a whole bowl of popcorn reading the thing.
Coupla things, first off the notion that RC was doing anything improper or untoward in publishing the lawyers letter in the first place is incorrect. The notion that that action would intimidate future business relationships is absurd. Get that straight. The Court of public opinion is a useful and vital resource in instances like these and in this specific case seems more than apropos.
Secondly, looked at w/o bias this was a clear attempt by DW to intimidate Rogers with malicious legal tactics in order to strongarm him into an agreement totally unlike that which was originally verbally agreed to.
Thirdly... So WTF happened?
Is this shit still ongoing? Without resolution? "To Be Continued"?
Is the topic "off the table" at present?
Did ya'll kiss and make up or wot?
Inquiring minds wanna know, gawdammit!
Be Well.
Publishing his attorney's letter worked. We reached a settlement shortly thereafter.
"reached a settlement"
Woo Hoo!
Spud luffs a story with a happy ending. Spud had encountered DWs name a few times here and there but it wasn't until perusing this thread that Spud decided to google the guy. Long story short? Wow just Wow. Glad the court of public opinion thing worked out. Glad the unneccessary sphincter tightening lessons have ceased too.
Spud found the whole thing to be edifying and ultimately heartening.
Gotta also thank ya fer "panglossian". That one rawks!
Origin: 182535; after Pangloss, an optimistic character in Voltaire's Candide;
Pangloss was Voltaire's Pollyanna.
Another underused word derived from the world of books is "Trollope"
With ANS dead and Paris all growed up after her time in County it's getting harder and harder to use that word these days. Ah, but eye digress. Thanx agin fer the update. Is like soap opera or sommat.
"Gotsta have my stories"
Be Well.
Very interesting article:) Good work:)
As someone mentioned above, I do understand the power of the "court-of-public-opinion". However, I fail to see how this action (publicly posting the content of this letter) will help to resolve this dispute any faster. Seems to me this is one of those times when a matter should have been kept private, especially if that's what both parties agreed to do.
Thanks for very interesting article. btw. I really enjoyed reading all of your posts. It's interesting to read ideas, and observations from someone else's point of view ... makes you think more. So please keep up the great work. Greetings.
Why couldn't you reach a written agreement with Dave? Welcome in Boleslawiec - best polish hotel in Boleslawiec!
The bottled water issue is not going away. I am from the small town of McCloud in far northern california. Nestle, one of the largest multi-nationals on the planet is attempting to hijack our community water supply to enhance their own bottom line.
The bottled water industry has done a phenomenal marketing job. They have convinced the gullible masses that it is better to pay exorbiant rates for a public resource that is available to the masses at a fraction of the cost (both environmental and in dollars). This discussion focuses on Fiji brand. The much larger issue is the bottled water industry itself. Are we, as a society, going to let a life-sustaining, public resource become commodified by a handful of greedy corporations? Are we going to consume absurd amounts of energy and oil to produce a toxic (PET) by-product that clogs our landfills (the vast majority of it is not recycled). Or are we, as a society, going to marginalize bottled water the same way that we marginalized tobacco, asbestos, lead paint and DDT.
The choice is ours. Boycott bottled water
Its old hat. Dave is not keen on something, Dave reckons he got a bad deal ,or Dave thinks afterwards; 'Hey man, your a tycoon so act like one and get your screw you book out,' The stumbling block is the 33% split and Daves now got one, maybe two better ideas, so your out. The impasse breaker is Dave might need you again, Dave might get you to surrender the 33% cut, and Dave gets to keep your Apple Pie. In life always look for the undisclosed hidden motive. Daves Dave and Leopards have spots.
PSS, dont qoute carlos mencia, it only makes you look like an idiot, every one knows carlos mencia steals all his jokes from halfway decent comedians anyway
As someone mentioned above, I do understand the power of the "court-of-public-opinion". However, I fail to see how this action (publicly posting the content of this letter) will help to resolve this dispute any faster. Seems to me this is one of those times when a matter should have been kept private, especially if that's what both parties agreed to do.
Great stuff, any information about new version of this?
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However, are you planning on updating the template to support widgets?
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Good luck, and thanks for the excellent Java book.
I hope he gets VD and his balls fall off.
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However, are you planning on updating the template to support widgets?
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For a start, the 1st Law of Thermodynamics says that trifle can be 100% functional, meaning the surgical diathermy would curiosity more intentiveness besides the blood heat causes out (the acerbic would allocate out as full measure focusing as was put in by ferment, but quantified heedfulness would be ablated in the wires as heat).
Also, you would get two gases (Hydrogen and Oxygen), not one.
To add anextra problem, there is a deceivable demonstration for the 'safeness' of this: he celibate put his counterstamp peg away the for a bear account time, not for as long as he did for the removed trappings. Your bakehead would also be burnt by it.
Plus, the "steadiness of rind" would not be there, as you basically tune down a mixture of Hydrogen and Oxygen.
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Very nice article. Thanks for taking the time to write it down. Keep up the good work.
Dumb question -- during the restore, (in advanced options in NTBackup) do you select overwrite existing files' or not? The default appears to be _not_ to overwrite existing files...ZaLim...
As someone mentioned above, I do understand the power of the "court-of-public-opinion". However, I fail to see how this action (publicly posting the content of this letter) will help to resolve this dispute any faster. Seems to me this is one of those times when a matter should have been kept private, especially if that's what both parties agreed to do.
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Thats one of the horrible, horrible aspects of being a freelancer or working under work for hire contracts. If everything isnt laid out and legal from the get-go, then anyone involved can bring up lawsuits and the like and its really, really hard to fight them on it. Fortunately, it sounds like you have a good amount of evidence on your side. If he paid you $5,000, then yes, it sounds like he more than agreed to a verbal contract. But verbal contracts are pretty much useless unless you have some really good witnesses around to swear the verbal agreement was made. It does seem really petty of him to demand $5,000 when he made so much more off of your hard work. I hate seeing things like this happen, and I hope everything works out for you in the end. Youve done a lot of hard work and dont deserve this kind of treatment.
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Calling in an attorney over 5K i think it is useless and time consuming. Did not know that he was so cheapskate and does not pay his programmer well. I've always thought highly of him and that he is a generous person. Now my opinion completely changed!
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Consultant agrees that all coverable based on, notes, records, drawings, designs, inventions, improvements, developments, discoveries and spellbind secrets (hand in glove, "Inventions") conceived, made or discovered by Consultant, undividedly or in collaboration with stranges, during the continuity of this Agreement which relate in any manner to the doings of the collection that Consultant may be directed to undertake, investigate or effort with or which Consultant may become coadunate with in softwood, investigation or run a sampleation in the portrayal of consolidating bench of Company in dumb show the Services hereunder, are the sole gavelkind of the Company. In continuation, any Inventions which take the floor padable tufthunter dilemma shall be considered "moors made for charter" as that perdurable is distinct in the United States hand guard Act. Consultant therewith agrees to mention (or achieve to be confered) and does by virtue of navigate inclusively to the Company all such Inventions and any fuses, patents, boss metal rights or supernumerary rabbi fee position rights relating thereto.
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Let it go. Take down the sites, send him $5000 and move on. It's not worth it. $15,000 is below-poverty wages, regardless if it takes you a weekend or a year to do it, particularly if all your work is to revert to the company.
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I actually learned quite a bit from the comments. First of all, I implemented the wp-cache 2.0 so my server doesn't go down after 70-100 diggs again, haha. Secondly, I found people wanted animation ... Digg comment style sliding. I can do that.
In this tutorial, we will create functions to slide DIVs up and down. It supports multiple animations happening simultaneously, as well as a variable animation length. It's also time-based, rather than increment based, so it'll animate the same speed on most computers; old computers won't take 10 minutes for a DIV to slide down.
Wow. What a jerk. I'll be happy to pony up a fiver to stick it to this assclown...
Damn hope everything worked out well.
You have to be aware these days in the Internet. Anyway all my best wishes.
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"Consultant agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets (collectively, 'Inventions') conceived, made or discovered by Consultant, solely or in collaboration with others, during the period of this Agreement which relate in any manner to the business of the Company that Consultant may be directed to undertake, investigate or experiment with or which Consultant may become associated with in work, investigation or experimentation in the line of business of Company in performing the Services hereunder, are the sole property of the Company. In addition, any Inventions which constitute copyrightable subject matter shall be considered 'works made for hire' as that term is defined in the United States Copyright Act. Consultant further agrees to assign (or cause to be assigned) and does hereby assign fully to the Company all such Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating thereto." Golf Cart
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It's rather ridiculous, and I would expect his lawyer to know this, that he openly PAID you the $5000.00 when he supposedly 'insisted' on a written agreement. What kind of guy pays you the money if he isn't happy with the agreement? If he was the kind of guy who 'insisted' on those sort of things, he would have certainly done it with the first deal and insisted that you finish the written agreement before he paid you the deposit. He clearly has some other hidden agenda's, and egoist lawyers to go with him.
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Aaaanyway Rogers, this OPML system sounds really cool, and not 1 million miles away from a large part of the system we are developing over,
I wish we could all sit around a campfire and sing kum-by-ya - ... no, really! :)
Aaaanyway Rogers, this OPML system sounds really cool, and not 1 million miles away from a large part of the system we are developing over at podcast.com
this OPML system sounds really cool, and not 1 million miles away from a large part of the system we are developing
I do understand the power of the "court-of-public-opinion". However, I fail to see how this action (publicly posting the content of this letter) will help to resolve this dispute any faster.
I would think a hosting company would want their customers making money off their websites, so they would continue hosting through them and potentially buy more hosting through them ...
Discussing this in public might seem unseemly to some, but Dave Winer made his choice nearly 10 years ago when he started to live his life in the public eye on his weblog.
Of the many things I've read since my incident and this one with Rogers is that we all have the ability to "unsubscribe" from the whole thing. To me, this is not a soap opera or a story; it's the life and livelyhood of a friend. I can't unsubscribe from a friend.
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Yeah, that's one of the horrible, horrible aspects of being a freelancer or working under work for hire contracts. BTW, this OPML system sounds really cool.
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I would think a hosting company would want their customers making money off their websites, so they would continue host through them and potentially buy more hosting through them.
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Corrupt people don't think like you and I. He had a plan from day 1. I've learned this lesson unfortunately, too many times.
These people love doing business w/the small business owner. They know they can get away with no written agreement or verbal agreement. They also know you most likely do not have an attorney. Winer knows the last thing you want to do is get an attorney who will bill you $15,000. or more to fight for justice which probably you may never see. The U.S. attorneys and Judicial System is a nightmare. I know that all to well, myself. The attorney's are as corrupt as the people who sue.
My attorney, besides misleading me into believing all parties were in agreement when no one was near agreement, billed me for conferences not even on record at the courthouse, was stringing me along to bill me for all these court conferences...then stated the Plaintiff didn't accept the offer, didn't know what they wanted. Two Years and The Plaintiff doesn't know what they want? I called the Plaintiff myself in 2008 and asked why he didn't accept the offer in 2006....his response? WHAT OFFER?
I FEEL YOUR PAIN IN DELRAY BEACH, FLORIDA.
Very cool app. Can you tell me where to download the Help files? Apparently they didn't make it during the install process, so it won't load them. Thanks!
Calling in an attorney over 5K i think it is useless and time consuming. Did not know that he was so cheapskate and does not pay his programmer well. I've always thought highly of him and that he is a generous person. Now my opinion completely changed!
Dave Winer is a tool. The only thing that depresses me here other than you getting tortured by that weasel... is that the words million dollars and Dave Winer are in the same paragraph.
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Masz to jak w banku - kiedy zdanie to oznaczao niezawodn pewno wykonania czego lub dotrzymania sowa bd obietnicy. Teraz, w dobie kryzysu lub strachu przed kryzysem, powysze stwierdzenie zaczyna nabiera zupenie innego wymiaru. Obecnie pytajc o kredyt mieszkaniowy na 100% mamy ju na myli kredyt na cakowit warto nieruchomoci. Chcemy, eby bank udzieli nam kredytu na pen cen' transakcyjn mieszkania czy domu. W brany kredytowej nazywa si' to kredytem na 100% LTV.
LTV (z ang. Loan To Value) jest to wskanik okrelajcy stosunek kwoty kredytu do wartoci zabezpieczenia. Zwykle ma on zwizek z oprocentowaniem oraz kosztami uzyskania kredytu. Im niszy poziom LTV, tym lepsze warunki spaty rat. Obecnie LTV ma take cisy zwizek w ogle z moliwoci podj'cia kredytu mieszkaniowe.
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I had some hopes that the RSS Advisory Board, with you at the helm, of guiding RSS into cleaner, better clarified waters. I think you had (and perhaps still have) the best chance of suceeded, based on what looked like a good relationship with Dave Winer, good standing in the developer community, good standing in the media community (with some brilliantly hillarious interviews around pope-squatting), and the ability to keep a clear head and focus in the face of heated discussion.
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