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.
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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 ...
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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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