Category: Commentary

As many of you have read by now, there is a second lawsuit filed against XenForo (XF) by Jelsoft Enterprises and vBulletin Solutions (vBSI)

Case Number: CV10-8209-R
vBulletin Solutions, Inc. v. XenForo Limited

Complaints For:
1. Copyright infringement
2. Declaratory relief over ownership of software
3. Misappropriation of trade secrets
4. Intentional interference with prospective economic advantage
5. Breach of contract
6. Breach of duty of loyalty

First, let me make it clear that I am no legal expert. I have very limited experience with the technicalities of law so this is intended as mere feedback and commentary from reading the filing and is not meant to be anymore then that.

Veritas and I had a chance to read through the 44 pages of the filing and wanted to share some of our initial thoughts on it, and this case against XF and Kier, who used to work for Jelsoft.

Upon the first reading the filing, I have concluded that the majority of the filing is based on nothing but pure speculation. There is no factual basis for any of the six claims made but instead the claims are mere assumptions by vBulletin Solutions Inc.

Factual Background:
vBSI first acknowledges that Kier Darby was hired as the lead developer of Jelsoft products who “had unfettered access to over $100 million of VSBI assets” (6) and access to proprietary information which was located at the vBSI which Kier often frequented for meetings. Although this part does not come as surprise and we would expect the lead developer of vBulletin to have access to such information to perform his duties, this is the basis of the argument presented by vBSI which will be discussed further. Along with this, vBSI contends that because Kier “repeatedly complained about the new ownership and management” (7) they knew he was going to leave the company to pursue his own goals in establishing a new competing product. vBSI then goes on to accuse Kier of having convinced current and former employees of Jelsoft to collect confidential information, while having kept proprietary information himself – All of this is based on the word of a representative from vBSI HR department because apparently her opinion which I’m sure is very objective and not at all biased is good enough for them.

“Software of the kind released by XL generally takes several years to develop. Based in part on the speed in which XenForo product was released–slightly more then a year and a half after Darby and Sullivan left vBSI–vBSI is informed and believes, and on that basis alleges, that Darby retained Jelsoft’s and vBSI’s proprietary materials obtained during his employment by Jelsoft pertaining to existing and future versions of vBulletin, and used said materials to commence commercial planning and technical development of the XenForo software product prior to his resignation from Jelsoft.” (10)

This part stood out for me – To me, this reads as more speculation and no actual proof. vBSI is essentially contending that, due to the speediness of the development of XF, they must have stole the code and took advantage while they had the opportunity to access vBSI proprietary information. They claim that they were “informed” about this but I have yet to see any actual proof of it. They also proceed to drag Scott Molinari into this in the next section “Moreover, based on knowledge obtained while Darby and Sullivan were employed by Jelsoft, defendants contacted Scott Molinari, the principal of one of vBulletin’s exclusive distributors” – Once again, I am curious about this “knowledge” and “information” they are referring to which they conveniently don’t explain in further detail. Are we to take their word at face value about this? Is vBSI forgetting that XF is headed by the world renowned developer Kier and Mike, both of who have had extensive experience developing software?

First Claim:
In the first claim, vBSI accuses XF of copyright infringement.

“Defendants have reproduced, created derivative works from, distributed, and otherwise infringed upon vBSI’s protected works without vBSI’s authorization.” (11)

In this unfounded claim, I found no basis and the only argument being that the software created by XF is similar to vBulletin in the sense that each serves a similar purpose – community/forum software, that’s it. There is no evidence about similar/identical code being used by XF so using this logic the multiple other forum software available is also in violation of copyright infringement.

Second Claim:
In this second claim, vBSI argues that Kier “misused Jelsoft property and resources for his benefit and the benefit if XL by, among other things, creating source code that is now used for XenForo but which belongs exclusively to vBSI as the successor and assignee of Jelsoft’s intellectual property.” (12)

What I gather from this, is that the lead developer of vBulletin isn’t allowed to work on the software he was hired to work on, without the assumption that he was in fact working on a competing product, so now, the work he did and the source code which is apparently in XenForo (yet again without any proof) actually belongs to vBSI?

Third Claim:
In the third claim, vBSI claims that Kier misused trade secrets which he learned at vBSI in order to advance his competing product at XF. It is a well known fact that employees of the company have access to these “trade secrets” and access to propriety, confidential software which they use while at said employer, but what proof is there that these trade secrets were “taken with blatant disregard of Jelsoft and vBSI’s rights” (14) and were then used at XF? Is one supposed to pretend they no longer posses skills once they leave one employer for another?

Fourth Claim:
vBSI now claims that because they have such a large consumer base who has a vBulletin license, current and new prospective members were discouraged to stay current vB customers due to the interference by XF. vBSI disregards and fails to mention that an extremely large base of their customers were upset with the recent licensing fiasco that took place with vBulletin 4x and the overall direction the company was taking with the new management. They fail to mention that the Licensed Customer Feedback forum is filled with thousands of posts from unhappy clients who constantly express their concerns and frustrations over vBulletin, they fail to mention that customers are unhappy about the unstable, bug filled version of vBulletin 4x released prematurely and rushed compared to the version released by the old vBulletin team with Kier and company. Instead they want us to focus on how they potentially lost clients because of XF, but not because of their own stupidity and the fact that they kept digging themselves a deeper hole. They failed to mention that they lost a number of clients to Invision, well before the inception of XF but instead want to direct all the attention to the new competition which rightfully will take away their customers, but will do so for the right reasons – due to the fact that XenForo is a far superior product.

Fifth Claim:
Next we have breach of contract against Kier. vBSI claims once again that Kier provided trade secrets to XF and its employees in order to get a competitive advantage and Kier’s apparent refusal to hand back trade secrets belonging to vBSI – All of this yet again based on the word of the HR rep working for vBSI. Exactly what information was it that Kier had which he refused to turn in? How are we to know for certain that this was indeed a trade secret and not something belonging to Kier himself? Oh yes, we shouldn’t question the word of the HR rep I suppose and just accept the blanket statement as is.

Sixth Claim:
The final claim made by vBSI is breach of duty of loyalty.
Here they claim that Kier did not have the company’s interest in mind while working for them. Apparently their crystal ball was able to read his mind and know precisely what he was thinking at every given time in the day. vBSI also claims that Darby was “developing and creating XenForo software while employed by Jelsoft” (16) Was Kier “caught in the act” working on XF when he was employed at vBSI? What proof is there that he was working on XF while employed at vBSI other then the previous assumptions, which say that the software was made too soon? Or are we to yet again just take these claims at face value?

Conclusion
I find it ironic, and curious at the same time that the first lawsuit in UK was filed and made public the first day XF went on sale. It’s quite obvious this was to deter sales and used as a scare tactic by vBSI.

Clearly vBSI thinks they have a better chance here in the US compared to the UK courts, hence this second filing, but I see it as a continuation of the scare tactic they first used. Upon reading this filing, I have yet to see any actual evidence of wrongdoing by XF and instead we are just presented with multiple assumptions and mere speculation. Perhaps vBSI is shocked that Kier and company are able to develop a superior product so quickly, which in its beta stage is even more stable then vBulletin 4x. Perhaps they are continuing to do their absolute best, in this last ditch effort to survive since they know they will only continue to lose customers after this pathetic feeble attempt and this frivolous lawsuit – time will tell, but in the meantime, Veritas and I will continue to follow it and post our followups.

I come to this with a different perspective (though, I think many of our conclusions are the same).

I started a small niche site that is not monetized (though, I do get a large volume of clients from my vB site). When I started (vB 3.x series, circa April, 2007), vBulletin was the best forum software that I found. I was (and am in many ways) a complete newbie. I had no knowledge about anything, had to learn how to ftp the files, do basic programming for some tweaks and was generally able to set up my site for my needs.

All of my updates through the 3.x versions were fairly pain free. With the modifications I found at vb.org, I was able to satisfy all of my needs.

I remember being so excited about each new release and remember the countdown to 4.0, like a little kid at Christmas. I was so excited by all the features, the CMS especially. My site was growing and I had great placement on google for all of my keywords.

Then everything went to hell. I had so many problems and it was really discouraging. I did feel ripped off by the new licensing structure and felt like the quality went down greatly.

Through subsequent releases, I had more and more problems. Things were broken and I had so many problems, it was greatly discouraging. Still, I felt optimistic that the vB team would fix things and I understood that upgrades would go through “growing pains.” I was glad to see folks like IBAdrian posting things that sounded right. I remember specifically a problem I had with the CMS that Edwin contacted me for on icq on the weekend and helped me fix. I was still full of hope at this point.

My later upgrades went horribly. Functions would not work as well as they did in 3.8.x, and it was really discouraging. Still, I was hopeful.

I sat and waited. My forum suffered some, but it was still okay, people were still posting and I was able to get by. I was feeling that I should just be patient and things would get better. I did see some of the early noise about XenForo, and thought I would keep my eye on it, but other than a general interest, that was it.

Then I read the post about the lawsuit. It pissed me off to no end. I was especially incensed by the threat (implied or direct, though, I felt it was a direct threat) against purchasers of XF. So, I bought a XF license.

What makes me so sad is what was once a great and vibrant community has become a negative place. I really feel for those vB employees who I am sure are working hard on improving this product (and props for the Iphone App that Adrian just posted about in his blog).

I also feel discouraged by the fact that my posts may be part of the negativity. I am not ready to give up on vB altogether, but it is a completely different feeling than I had when I first bought my vB license.

I don’t know exactly what I am hoping to say here, but I think it along the lines of beseeching the IB corporate folks to take a deep breath, look at what goodwill you still have, think about the message you send to your customers (present, past and potential) and just keep on working to make the product worthy of the name you have built. I think that Kier and XF have started something great (which I am supporting now), but this does not have to take down vB (or what it could be). Competition is not necessarily a bad thing. But, ignore your customers, act poorly, and fail to fix problems, and you will not survive.

I really hope this place turns around. I hope the vB employees and developers keep up their hard work (and that your bosses listen to what you have to say about how to fix things and resource you to make that happen…to be honest, I can’t imagine how tough it must be to work on the product with so much criticism…your customers are willing to cut you slack, so long as you have solutions and are upfront about what is going on and the plan; I have to say, the Jira roadmap and the progress on 4.08 do seem like you guys are working on the issues).

Anyway, that’s my 2 cents.

-jadmperry

Today has gone by so quickly I nearly forgot it was an important moment here at vBTruth. Today marks one year ago when Chronos and I said enough is enough. We’ve had it. We’re tired of being forced fed decisions by Internet Brands’s Management that ultimately compromised our communities and in some cases, have driven our members away.

Looking back at the entries we’ve written in the last year, I have to say I’m sad. Looking back at the entire year, I could cry. One year later, nothing has changed. vBulletin itself is no longer the king of forums. In fact, it is the court jester of forums. The monetary value of a vBulletin license is completely depressed. From an all time high of $285.00 license, people are dumping their licenses for a fraction of the price. I’ve seen licenses as low as $50.00 for a vBulletin 4 Suite. That’s an eighty two percent drop in the price. People aren’t even recovering HALF the money they paid for vBulletin 4. They are simply looking to get rid of it.

Looking at everything a year later:

The CMS is still horrible to use. It’s nothing but stress and headaches to post updates.

The Forum still shows regression in features.

Bugs are being squashed, but it’s still difficult to work

Performance of vBulletin is dreadful.

Competing products like Invision Power Board have made significant leaps in innovation.

We’ve seen xenForo

vBulletin 4 still has attention deficit disorder, with no idea of what it wants to be. Not to mention Internet Brands still thinks WordPress is still their biggest competition.

We’re already seeing talks that vBulletin 5 is coming out in a few months. HELLO $200.00/LICENSE IN RENEWAL FEES AGAIN!

We desired change, but we’ve seen none. No innovation. The v in vBulletin no longer means value or valuable. It now stands for victims. We’ve become victims of the lack of vision, and direction of Internet Brands.

So sadly, Happy Birthday to us. We thought a year is enough for things to change, but evidently time has shown us the truth. There’s no real change on the horizon.

I would like to believe that I am by far one of the most vocal people out there that has ranted, and raved about Internet Brand’s continued mismanagement of vBulletin Solutions, and vBulletin. My phone started vibrating like with extreme madness as I picked up a rash of alerts from colleagues and twitter notices on the morning of the filing. With my travelings these last few months auditing various companies, I’ve been regrettably away from this site and unable to comment or refresh content as frequently as I’d like to.

Now that my latest rounds of audits have been complete, I am able to properly sit down and analyze the highly publicized notice on vBulletin.com. Interesting enough, I have not been able to locate the complaint in any UK Legal Information System or any filings in the UK Court System.
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For those of you who are sick of Internet Brands’s incompetence, and continued failure at meeting business requirements, xenForo, developed by former vBulletin developers Kier Darby, Mike Sullivan and former vBulletin business manager Ashley Busby, went on sale.

Go buy it. Enough said.

P.S. HURRY UP AND BUY BEFORE THE 100.00/license sale ends!