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Thursday, March 16, 2006


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It seems to me that the letter from Dave Winer's attorney pretty well stated his case.

'Sticking up for our friends' doesn't mean sticking our head in the sand. Sometimes our friends need to know that.


"But I was truly bothered by the number of comments made before Dave had given his side of the story. How can anyone possibly take sides when only one side has made their case? The mob mentality shown here, in a word, sucks, and shows why the blog world is no better than mainstream media when it comes to fact-checking."

Given Dave's track record of turning on people, why are you surprised? he's made this bed for himself, and now he has to sleep in it. Bottom line: few people are willing to give him the benefit of the doubt, and for easily understood reasons.

I must say that Winer seems to have a lot of enemies. Most people I know don't have *any* enemies. With so much smoke around one guy, it's natural to assume he's on fire.

Even in the blogosphere, where sniping is a way of life, it's pretty rare to see it accompanied by a letter from an attorney.

Everyone understands what Roger did- he didn't want to work out a deal, he tried to hide behind the flamers. People like Nick Bradberry see this for what it is, and Roger only ruins his reputation with people who work in the industry, like Rogers would like to. Who's going to trust him now with a contract programming job now that he took this public in such a predictably messy way? Didn't he know that the flamers would control the whole thread? Dumb move, he should have tried to work things out with Winer.

I've disagreed with Rogers many times over the past few years, but everything I've seen suggests that he's honest, reliable and trustworthy. If the occasion should arise, I will have no hesistation in trusting him with a contract programming job.

Oh yes, and Dave himself said of the job in question: "Thanks to Rogers Cadenhead for another miraculous programming job". http://opml.cadenhead.org/

I don't think either side is covering itself in glory in this case.

Yes there are two sides to every story and this one is no exception. But it sure doesn't look like there was much time before Winer posted his side, so it is sort of moot to complain about that.

The attorney letter is a fact and isn't subject to interpretation. It is the only fact that we know for certain, i.e., a letter was sent to Rogers from Winer and the content is there for all to see. The rest is opinion and may or may not be based on fact. Now whether the content of the letter is in any way factual, who knows. So how do you make sense out of this?

Point #1 - Dave does have his enemies. A lot of them.

Point #2 - Why would someone refuse to sign a written contract? Rogers says this: "The web application has been in limbo because we haven't been able to reach a written agreement to supercede the verbal one"

Winers says this: "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..."

So the letter basically says an agreement was sent to Rogers and Rogers didn't agree to it. I certainly wouldn't sign any agreement that was simply sent to me because we were supposed to have a written agreement. What would be interesting to see is that agreement itself and that would shed a lot of light on the subject. There must be something in that agreement that Rogers could not sign, or else why wouldn't he sign it? If it was a straightforward contract for hire agreement, why would he not sign it? After all, by not signing an agreement, Rogers has gotten himself in a legal situation where the other side has deep pockets and can hire expensive and nasty attorneys. One explanation is that agreement is not favorable to anyone except Winers. People have enemies because they screw others or operate on "it's my way or the highway." I can think with that. Granted, there is a lot that is not known but I can't come up with any reasonable scenario where Rogers is the bad guy.

Nice and smart comment. I love the attentiontrust.org service.

It is terrible that a private dispute is out in public where we all have the urge to vote on it. We can never know the facts of the matter, and it is just ugly to take sides.

Thanks for keeping your head, Nick, though I'm not sure even that is helpful.

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'm seconding orcmid's comment. These public fights and taking-sides thing is starting to creep me out...

The moral of the story is to make sure the contract is signed before you even write a single line of code. If the contract is unfavorable, you've only lost the time you spent discussing the project reading the contract.

If you start coding without the contract, you'll have no leverage.

Don't think that you're friends and that you'll work out a solution later. If the customer really is your friend, he or she will have no problems signing a contract before you do any work.

Rogers lost me when during the weblogs thing. He was pretty much Dave's only defender in the matter.

A recent example of why people who don't even know Winer don't like him. There was a nice community of people using his site, Outliners.com, to discuss outliners and other software. But the site's forum software was buggy and sometimes messages were lost. Some people emailed the webmaster and asked it be fixed but received no answer. Then abrupty Winer posted the classless, rude note you see there now and shut the community down. They are now trying to create a new home. The man deserves the venom.

Bartolome, unless Dave's changed the message since you last saw it, I wouldn't agree that what's there is "classless [or] rude". That's not to say I agree with Dave in any of this, but the man deserves an open mind that's not based on his previous behaviour.

I have no idea who's in the right, legally, in this. From the evidence that Rogers has put forward, it sounds like a verbal agreement that wasn't anything like the ultimate contract - but only Rogers and Dave know the truth of that.

What I will say is that those who are defending Dave on the grounds that Rogers is somehow using a lynch mob against him are being a bit naive. Dave hasn't exactly been averse to calling in the mob when it suited him.

I can understand why someone reading that would not think it classless or rude, and people have standards of class and etiquette, but in context, to me, it was. He set up a forum on the internet for discussion of outliners, people used it for that purpose, it didn't work as expected but when people tried to talk to him about it, he didn't respond, then abrupty shut the site down without warning and blamed the users. The reason people were downloading all the messages was because they were trying to preserve their history, which has value to them. All I'm trying to say is he turned a situation in which no one had to be unhappy into a situation in which some people were unhappy. Some users did thank him for all the time he kept the site up, and he deserves those thanks, but he poisoned the well.


Work it out and get on with it. Is there anything more boring than "he said, she said"?

Good grief!

"the man deserves an open mind that's not based on his previous behaviour."

Making no comments on the specifics of all this, I can't understand why anyone would say the above about anyone. If someone behaves badly in the past I think distrusting them in future is OK. Fool me twice ... you can't get fooled again.

Here's an objective outsider's take on this, for what it's worth:

It doesn't matter who likes who, who has how many friends or enemies, who did what to who in the past, or who did or said what outside of the public eye; the case has to be judged by what was done publicly in connection with this specific incident if we want to see who's in the wrong in this case.

Something I've found to be invariably true is this; a good, decent person never, ever, EVER shares private correspondence without the clear permission of all parties. NEVER. Someone who'd put a private letter in a totally public forum, aimed at an audience who any moron would know would react viciously towards the source of the letter, and such that said source will be sure to see said reaction, is FAR from being a saint; this is a calculatedly evil act, and, regardless of how much the letter-sharer was provoked, it's absolutely inexcusable and puts them 100% in the wrong for this particular altercation.

Perhaps Dave Winer is an objectively bad person; just be aware that Rogers Cadenhead has shown that he isn't any better.

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