Date: Thu, 25 Mar 2004 22:51:18 -0500 From: "Mark Dodel" Subject: [VOICENWS] Net: F/X Communication's response to Brian Smith From: "Walter F. Metcalf" HISTORY: ------------- In a VOICE-NEWS post of 7 November 2003, Brian Smith claimed that F/X Communications products were making illegal use of his free netlabs project, known as Dynamic Windows ("DW"). The claim was published in good faith by the VOICE-list moderator. VOICE later learned that Brian Smith also sent the message to the hundreds of people that seek technical product guidance on F/X Communication's InJoy mailing list and that Brian joined the F/X support chat to also deter users there. This apparently happened 8 months after Brian Smith stopped working for F/X, at a time when F/X was closed for vacation. The VOICE-NEWS mailing list was set up as a means by which OS/2 users can keep up-to-date with new developments, news, etc. It functions because people who have legitimate news items to share send the appropriate information to the moderator. As such the information received by the moderator is generally taken and posted in good faith. Private disputes between two individuals or companies, especially those of a legal nature, have no place on this news list, but should be settled by the participants either privately or in the court system. VOICE regrets that this news service was hijacked by Brian Smith to publicize a private dispute between him and F/X Communications (http://www.fx.dk). However, since VOICE-NEWS has *already* been used as a vehicle to present one side of the dispute, fairness demands that the other side be presented. What follows is an attempt to balance what Brian Smith has already posted, so that VOICE-NEWS will have presented both sides of the dispute. In an attempt to accurately understand F/X's side of the dispute, I have exchanged emails with both its owner and employees. In several cases, I requested and received copies of original emails and other documents from companies other than F/X in order to verify the information. I have also read much of what Brian Smith has posted, and much of what is available in the public domain regarding this issue. I did all of this to make as certain as possible that the material in this post is accurate, not because VOICE or I are taking sides in this dispute. In fact the moderator of VOICE-NEWS attached the following disclaimer to the November 7 post. VOICE has never wanted to take sides in this dispute. I wish to make this clearly understood. [Moderator's note: If you have any comments on this please send them to the respective involved parties, not to me. I am only passing on an announcement.] Based on the evidence above, here is my understanding of F/X Communication's position: As a background to this post, It is important to realize that Dynamic Windows (DW) is a free *open source* library developed primarily by Brian Smith to facilitate making a program's graphical user interface run on multiple platforms. Brian offered to use DW in the porting of InJoy Firewall (http://www.fx.dk/firewall/) from OS/2 to the Win32/Linux platforms and he made it clear to F/X that he was the only significant copyright holder. When F/X Communications first hired Brian, Brian agreed that "the InJoy source code belongs to F/X Communications and [he] will not distribute, resell, or use any of the source code without prior agreement with F/X Communications." Later in their relationship, F/X Communications specifically sought Brian's permission to use DW without making it open source, and Brian agreed to this arrangement. In addition Brian Smith invested a substantial amount of time in revising and modifying DW at F/X Communication's cost and expense (because he periodically invoiced F/X while making these revisions and modifications). After F/X and Brian Smith split up, Brian attempted to revoke the permission for F/X to use DW and demanded that F/X either pay him $60,000 or give up the rights to 80% of the "work [on InJoy products] made for hire that Brian created" [sic]. At the same time, the changes made to DW by Brian in F/X continued to be uploaded to Netlabs and thus became available to anyone, except F/X. (See http://dwindows.netlabs.org/. Since F/X and Brian Smith had an earlier agreement that the InJoy products and source code were the sole property of F/X Communications, F/X felt it could not take seriously an ex-contractor's attempt to revoke the permission for F/X to use and sell its own product. Because it felt the claim was of such a frivolous nature, F/X Communications suggested to Brian Smith that he should take his claim to his lawyer, with whom F/X promised (repeatedly) to work seriously. Instead of working within the legal system, Brian however posted his warning on several news services (including VOICE NEWS), chat rooms, and public fora all over the Internet. Even worse in my view, Brian emailed the essentially same information to F/X Communications' customer list! F/X tells us that it has cost them customers, and in fact hurt Brian's own case. Brian also contacted existing F/X employees and contractors to "warn" them about F/X. One of these people reported that her dealings with Brian have seriously affected her personally. Using a former employer's customer list to publicly attack that employer is, in my view, utterly despicable! The proper forum for resolving this type of dispute is in court. Again, F/X urged Brian to take legal action. Brian Smith has to this date not taken legal action against F/X. However the public hailstorm (which continues almost to this day) and the resulting defamation has caused F/X to act by taking legal action against Brian. The following is a very brief summary of the Complaint filed against Brian Smith in the United States District Court, Northern District of Illinois: The Complaint alleges breach of contract, defamation, tortious interference with business and expectant business relations, and other related claims. The Complaint makes it very clear that F/X Communications strenuously deny Brian Smith's allegations. The Complaint also makes clear the terms of the agreement between F/X Communications and Brian Smith, the problematic behaviour Brian Smith exhibited over a course of more than two years, the exhaustive patience shown by F/X Communications, the bases for Brian Smith's eventual termination, and the extent to which Brian Smith unjustifiably and publicly retaliated against his former patron. Charles Lee Mudd Jr. has filed the Complaint on behalf of F/X Communications as their United States counsel. As the President of VOICE, I deeply regret that VOICE-NEWS has been used for the purpose of spreading such a destructive message of fear, a message that could lead to irreparable and irreversible damage to an OS/2 supplier of fine products and a valuable, long-time friend of the OS/2 community. The OS/2 community has too few such suppliers and friends as it is; it would be a major tragedy if we lost this one because of the actions by a single irate individual. If you have not already read Jason Stefanovich's fine article entitled, "A Matter of Respect", then I strongly urge you to do so. You will find it at http://www.os2voice.org/VNL/past_issues/VNL1203H/vnewsf1.htm. Jason makes it clear that as members of the small OS/2 community, we have got to treat others with respect, no matter how strongly we disagree with him or her. In my opinion, our very survival as an OS/2 community may depend upon it. Much of Jason's article refers to "netiquette". If you don't know what that word means, or if it's been a long time since you have read anything about it, I suggest you also check out http://www.onlinenetiquette.com/ . Using good "netiquette" makes everyone's life more pleasant. VOICE hereby declares that in the future its news services will not accept additional messages relating to this matter or any other controversial material of a similar nature. -------------------------------------------- ------------------------------------- Walter F. Metcalf V.O.I.C.E. President http://www.os2voice.org WarpDoctor Coordinator http://www.warpdoctor.org walter.os2DESPAM at rogers.com ------------------------------------- -- Warpstock 2003 - San Francisco, California, October 18-19 See the video and presentations: http://www.warpstock.org [Moderator's note: All posts are sent without guarantee to the accuracy of the content. We try to verify details and URLs but this is an entirely volunteer run list, so 100% fact checking and the quality/useability of products announced here is impossible. If you respond to this post please remove the DESPAM from the poster's email addresses. Please do not send requests for information about a specific post to the moderator unless it is an update or I sent it.] -- To unsubscribe yourself from this list, send the following message to majormajor at os2voice.org unsubscribe news end Or, visit http://www.os2voice.org/MailingLists.html If you have an announcement you would like posted to the VOICE News list, please send it to submit at os2voice.org. Please include a valid reply address and a real contact name. If you wish to comment on this post, please reply to feedback at os2voice.org