Let’s Think – The Real Reason for Internet Brands v. xenForo

Let’s analyze their next claim:

In total, we are stunned by the actions of Kier, Mike, and Ashley and believe they must not fully understand the laws of copyrights, contract or business torts. Perhaps Kier and Mike think they have “refactored” enough of the code to skirt copyright law. Our analysis strongly indicates otherwise and we believe anyone skilled in understanding such things will concur. Perhaps they are of the misguided belief that because they created some of the vBulletin code as Jelsoft employees, they somehow have unique claims to that property. If so, that too is wrong. Kier’s and Mike’s work as Jelsoft employees was the exclusive property of their employer, and the former owners of Jelsoft not only paid Kier and Mike well during their employment, Kier was paid a handsome bonus when Internet Brands bought the business, although no such payment was required.

If the proverbial shoe were on the other foot and rather than buying vBulletin, Internet Brands had instructed our engineers to essentially copy the software, we would have been law breakers. But Internet Brands chose to play by copyright rules and bought the vBulletin intellectual property. And, in our opinion, no matter how Kier, Mike, and Ashley try to “spin” their actions, they have not. A key test for infringement is a determination as to whether a substantial portion of the underlying work amounts to an expression of the prior work. We believe we will be able to easily show that Xenforo is infringing under this test. We have numerous other claims against Xenforo that we believe are equally strong.

Customers holding both vBulletin and xenForo licenses have poured through both vBulletin 4 programming as well as xenForo and noted that the code does not look alike in any shape and form. Furthermore, we also know that xenForo is based primarily on the Zend Framework, complemented by brand new xenForo framework to complement or replace aspects of the Zend Framework.

But let me get this straight. Kier and Mike refactored code? I don’t see how that’s possible as there is a completely different framework as well as customers independently auditing and verifying the code is different. On what basis and evidence does Internet Brands have to draw and make such a claim when there was no downloadable version of xenForo at the time of Internet Brands’s claim? You’re welcome to analyze as much as you want but that still doesn’t answer the question ‘how on earth did Internet Brands view the xenForo source code before it was released’ to draw such a conclusion similar to what Internet Brands made. Again, it’s likely it’s one of those ‘throw everything on the wall and hope it sticks’ situations. Clearly another case of blowing smoke.

Oh wait, I know. Would Internet Brands like to confess to a possibility of hacking into the xenForo servers and stealing a copy? Because that’s the only way they could get a copy of xenForo over 24 hours ahead of the public. Or maybe they have some sort of spy software installed on Kier’s and Mike’s computer? Would you like to confess to root-kitting your former employee’s computers Internet Brands?

Either way, the claim Internet Brands’s made has problems either way.

Moreover, touting they pay a bonus is nothing special. Companies do signing bonuses all the time. Moreover, I’d ask the question about whether anything signed, or any monetary compensation is considered private information between the company, and former employee. Broadcasting it to the whole world, especially your customer base is simply unprofessional at best. Worse case,  breach of confidentiality to a certain degree regarding monetary compensation.

Let’s also spin it this way too. Is Internet Brands claiming vBulletin as intellectual property or forums as intellectual property? There’s a huge difference between the two. Yes vBulletin itself is intellectual property. It is a uniquely written set of code designed to serve the function of a forum application. Is forums, an ‘intellectual property’ of Internet Brands? No. Because there are other solutions out there, including zetaboards, phpBB, SMF, Invision Power Board, UBB, to name a few.

Let me throw out this theory as well. Does Internet Brands even know what they are talking about? Do they even grasp the concept of copyright? A quick wikipedia search shows that US Copyright Law: protects “original works of authorship,”[8] including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Copyright law includes the following types of works

From the 1976 Copyright Act (17 U.S.C. § 102):  In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Translation. Copyright protects the EXPRESSION of an idea; it does not protect the idea itself.

Clearly Internet Brands neglected to mention Kier, Mike and Ashley ‘can spin’ the ideas as much as they want, and that they can produce a ‘unique’ forum application; just that they can’t reuse vBulletin’s written expression of what a forum is.

Continue reading page 4