Like Apple, Palm seems to believe that convincing users that wired connections are “old” and that wireless is “modern” and the only way to go. As such, there is better but limited connectivity of the Palm and your desktop device. The cool “Touchstone” which charges the phone and is actually plugged into the USB port (optionally into the wall) does little more than do just that – charge the device. It is not capable of mounting the phone as a hard drive, which requires a Pre owner to connect the device using another standard USB cable. The utility of this is beyond my comprehension but we can get past that inefficiency for the moment. I’ll explain later how this all ties into the sync of your phone with your PC – or rather the lack of it and the supposed need to do so.

Palms next bit of market circulates around the magic “cloud” which everything backs up – or perhaps not quite everything as most users are led to believe. Other than a “Palm profile” which you create, any other data stored on the phone is apparently not backed up. Give that wired sync is now considered “passe”, this leaves the Palm Pre without an adequate full backup and restore method. In contrast, the wireless “always connected” iPhone backs up the entire phone via iTunes’ connection to your dekstop via a wire. Syncing individual applications with your desktop applications is a time consuming mess (each one must be performed individually after pairing the two via WiFi) but at least you can restore a phone with all the data you had at the time of the loss, damage or corruption of the phone or its data. For those of you in a legal practice, I wonder how many of you will be thrilled to find out that it appears to be difficult or impossible to perform full local backups of your data. With regard to the data that can be backed up on the Palm Pre, it may be stored to a “cloud” of servers that belong to a third party, to which you may not even be in privity of contract and stored in an entirely different country.

Another issue that concerned me was synchronization on the Palm Pre and WebOs. There still aren’t many applications available for the Palm but, since Palm has apparently removed “hotsync” or the automatic synchronization of the phone with the desktop, it’s uncertain what must be done to synchronize all the third party applications you may buy for the iPhone and have counterparts you’d use on your desktop and netbook. At this late stage in the game, it appears that many third party developers are not being enticed by the Palm bounty being offered to create applications.  It’s difficult to tell what may be required of a developer to bring an application to market other than standalone games.

I’d like to point out that the Palm Pixi and the Pre Plus with WebOS represent some great, exciting innovations. But given the speed and growth of the marketplace, I’m wondering how Palm will weather the storm of competition. Apparently the API still doesn’t even allow developers to create microphone aided applications such as voice dialing, which for many of my fellow attorneys is critical in using your valuable time while commuting to and from the office. The inability to provide local backup and synchronization is, to me, a huge gaffe by Palm. Perhaps they were too consumed with addressing the iPhone market by investing more time in solving how the phone may sync with iTunes. As such, this puts the Pre into the “gaming consumer” category more than it does the “professional consumer” category which is a market the Palm Treos served well for a long time.

At this point Verizon Wireless seems to be placing bets on its future with Google’s Android based phones. The Droid campaign was ubiquitous and sales of the phone and others have been at an astounding pace. The Droid is supposedly topped by the Nexus One, an ultra powerful Android phone with hardware specifications that far outpace the more modest but easier to use Palm Pre Plus with WebOS. With almost 20,000 applications and a large variety of hardware, it’s difficult to ignore choosing an Android phone as an alternative. Whether or not you like Apple’s walled garden iPhone, it too will apparently be available at some point on CDMA networks. The question I’d ask if considering whether to invest in the Palm WebOS and its shrinking market share (approximately 3% or less) is whether Palm will continue to exist in 2011. Will it’s technology will be purchased by another company and eventually merged into another platform?

I’d enjoy hearing other opinions and suggestions on how the Palm Pre and Palm Pixi can conquer what seems to be a rather huge hole in its offering to business and legal professionals.

Amusing is finding another registration of iPad just two weeks ago by a company called “IP Application Development LLC” as well. It looks like Apple will need to oppose that filing as well (unless this curious company registering the mark in several other countries is a front for The White Giant.) So was it sheer hubris that led Apple to release the latest iProduct without concern for trademark law or was it an oversight of counsel that had been partying too often in the valley? Apple actually does have a fine team of attorneys in Cupertino, some of which I have the pleasure of friendship.

This newsworthy item begs me to ask the following question. After tearing my ACL playing football several years ago in Central Park (while making a darn fine interception), I registered the domain iKnee.com. I’m also the proud owner of iKoto.com and iSlime.com (don’t ask, I must have imbibed too much sake when that occurred.) This begs the question as to whether I will need to surrender said domains should Apple come calling as it runs out of words to use for its growing product line?

While we’re in a jocular mood, I was amused to discover that other companies registering iPad as a trademark included a bra manufacturer. It seems that humor has cropped up on all fronts regarding the product, purporting that the iPad can solve a whole host of female problems. Joking aside, from a utilitarian standpoint I’m not sure what the iPad is supposed to do and the void it fills for up to $1,000. Perhaps Apple wants to be the “first in the game” but this is an expensive way to go to accomplish something I cannot identify. It has no USB adapter and it has no camera. It doesn’t feature flash for web browsing and, from my understanding, 3G and WiFi will only be available in upcoming models. There aren’t storage expansion options via SD cards either. Perhaps it buys extra coolness for $500 (plus all the necessary extras.)

The Good:

• Almost serious crash free experience, even 64 bit operation – rarely ever do I require a reboot
• Eye candy, yet easy to use
• Control panel finally more organized and driver loading of most hardware is virtually painless, an enourmous feat with so many variations
• Did I say how smoothly it runs for the most part, even with 32 bit applications?

The Bad

• Not too much – I thought there would be a longer list
• Windows Ultimate is too costly an upgrade over Professional and provides a marginal difference
• Some older hardware does not have drivers that enable it to work properly (especially HP and Okidata) – not entirely Microsoft’s fault

The Ugly:

• When Microsoft misses, it’s by light years and not just miles
• Internet Explorer continues to crash at will, even on clean installs (thankfully there is Mozilla)
• The search function has actually been made worse, if that’s posssible – there is no way to easily understand how it’s supposed to work and drill down to find a document (thankfully there are many alternatives like 2 Bright Sparks)

From my experience, if you’re thinking about upgrading your PC or considering a Mac, I’d highly recommend Windows 7. If you’re already running XP or Vista successfully, there really isn’t much incentive to make major changes. If you’re not quite satisfied with some inherent limitations or stability, I can attest that even 2-3 year old equipment will shine brightly on Windows 7 and it’s easy to work with and troubleshoot. If you need a cute looking computer, don’t buy a Mac – just ask me for some great alternatives that you can customize to your personal taste!

Data Playing Poker on Star Trek

At a Christie’s auction, Moustakis won bids for approximately $25,000 for items that allegedly appeared on Star Trek, The Next Generation – a poker table and Star Trek uniform and poker visor allegedly worn by actor Brent Spiner, who plays the character “Data” on the show. (Also sold were a six and a half foot model of the Starship Enterprise for over a half million dollars and another uniform and pants allegedly worn by Spiner/Data sold for almost $10,000.) Moustakis claims that after having a conversation with Spiner at a convention, he discovered that the items were never actually worn on the show. Further investigations lead Moustakis to believe the items were fake, although it is unknown to me what led him to that conclusion.

The bottom line? The judge ruled that Christie’s warranties and limitations of liability insulated the auction house. I’m not sure I was altogether satisfied with the explanation although there are many facts here that we don’t know about this sensational case. It is alleged (and which may have been introduced into evidence) that Christie’s had posted incorrect information that was revised in a handout provide to live bidders – in addition to a correction made before the auction. Despite  this disclaimer, the plaintiff apparently claimed that Christie’s had knowledge of numerous duplicate items that Paramount (studio creating Star Trek) was warehousing and which never appeared on the show. Moustakis apparently discovered several identical items available on eBay for less than half the price he paid, as well as differentiation the poker table on the show from the one he had bought.

Certainly I can understand the disappointment of the bidder but several million dollars worth of damages?

2009 NY Slip Op 09543

Decided on December 22, 2009

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2009

Sweeny, J.P., Catterson, Renwick, Freedman, Abdus-Salaam, JJ.

1847 117179/07

[*1]Ted Moustakis, Plaintiff-Appellant,

v

Christie’s, Inc., et al., Defendants-Respondents.

Jeffrey Benjamin, P.C., Forest Hills (Jeffrey Benjamin of counsel), for appellant.

Levine Sullivan Koch & Schulz, L.L.P., New York (Nicole A. Auerbach of counsel), for respondents.

Order, Supreme Court, New York County (Joan A. Madden, J.), entered October 7, 2008, which granted defendants’ motion to dismiss the complaint to the extent of dismissing all causes of action related to one of the items purchased by plaintiff, as well as the claims for fraud, negligent misrepresentation and violation of the General Business Law relating to all items, and the demands for punitive damages, unanimously affirmed, without costs.

This action arises out of an auction of memorabilia from the Star Trek television series and motion pictures. Contrary to plaintiff’s contention that defendant Christie’s had represented the Commander Data uniform to be one of a kind, no such representation was ever made in the auction catalogue. Significantly, the Conditions of Sale, which plaintiff accepted in order to be allowed to participate in the bidding process, expressly declared that “all property is sold as is’ without any representation or warranty of any kind by Christie’s or the seller.” UCC 2-316(3)(a) recognizes that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like as is’ . . . which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty.”

Even assuming there was a breach of contract or warranty as to the other two items purchased by plaintiff at the auction, he was, under the Conditions of Sale, contractually precluded from pursuing the massive recovery he now demands. The only remedy available to him thereunder would be a refund of the sale price(s) upon return of the item(s), a limitation generally permissible in contracts for the sale of goods (see UCC 2-719[1][a]).

The allegations of fraud and negligent misrepresentation are virtually identical to those upon which the causes of action for breach of contract and breach of warranty rest, and are thus duplicative, inasmuch as there is no pleading of the breach of a duty separate and apart from the contractual obligation owed to plaintiff. In that regard, it is axiomatic that “a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).

Nor does plaintiff have a viable cause of action against these defendants under General Business Law § 349 or § 350. A party seeking those remedies must charge conduct that is consumer oriented, with an impact on the public at large (Canario v Gunn, 300 AD2d 332 [*2][2002]). Finally, the misconduct alleged here, which arises from a private contract, does not resemble the egregious wrongdoing that could be considered part of a pattern directed at the public generally, so as to warrant the imposition of punitive damages (see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 358 [1976]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 22, 2009

After a short time of getting to know you over a couple of weeks, he tells you he is on a business trip and he has sent a package with a gift to you. He wants to show you how much he cares. He sends you the tracking number to make sure you receive it. You go to the web site and look up the tracking number… and you can see a package is en route to you, including valuable contents. Strange… but this man seems educated, professional, exactly what you seemed to have been seeking. Unfortunately it seems that the package is held up in Malaysia! You are sent a correspondence by the Malaysian branch of this express mail company that states that they require customs to be paid before the package can continue its path en route to you. You aren’t quite sure what to do… but he calls you and tells you that he is on a business trip, perhaps to the Bahamas or some other remote island. He apologizes for not having access to money and that hopefully you can pay for it – after all, the gift seems to be worth much more than just a few thousand dollars. As you can see, there is a diamond necklace or other valuable item and customs will be a pricey proposition! The company may contact you again about the package they can’t hold for you for too long! The email may appear as follows:

Globelink Security and Courier Malaysia.

4KM, Jalan Mukah-Oya, P.O Box 205
96400 Mukah Sarawak
Malaysia .

website: www.globelinkon.com

Email: feriana_globelink@hotmail.com

Malaysia Tel: +60-126-406-471.

October 10TH, 2008

ORDER NUMBER: GSC/ WFD /2008 (MALAYSIA).
TRACKING NUMBER: 27831241001

Attn:
With reference to the delivery of your package. I wish to bring to your
notice that your package has been placed on hold by the Malaysian customs
for some reasons which happened to violates the shipping policies. As the
goods arrived Malaysia custom check point, the Malaysian custom detected
that currency were included in your parcel. Thereby,certain commission
must be paid as customs duty via us which is for the immediate clearance
of your package .For the main time reference of tracking on the ” status”
of your package is pending , this is in accordance to the mode of
operations in the Courier sector for financial delivery .
We have already taken order number for this package from the custom.

You are required to follow all instructions giving to you to facilitate the
release of your package. To do this, you are required to pay the required
charges listed below for the immediate release of your package. Upon
confirmation of payment, your package will be delivered to your designated
address above under few hours .  PAYMENT DETAILS.

You can make the payment through WESTERN UNION MONEY TRANSFER

or MONEY GRAM TRANSFER

ORIENT EXPRESS COURIER SERVICES
MIDDLES TOWN, SW436,
London, United Kingdom
Tel: +447031742633

The web site “tracking number” results might look like this:

CONSIGNMENT

ITEM NAME: PERSONAL VALUABLES
NO OF ITEMS :THREE (3) ITEMS
PARCEL COLOR: GRAYISH COLOR

DETAILS
VALUED PERSONAL/FAMILY TREASURES, ONE(1)DIAMOND RING, THREE(3)PAIRS OF SHOE(WOMENS), A SET OF APPLE LAPTOP WITH COMPLETE ACCESSORIES,

EVALUATION AND INDEMNITY: 100+1% INDEMNITY AND REIMBURSEMENT/REFUND/REPLACEMENT AND TOTAL RECOVERY AGREEEMENT.
ESTIMATED INDEMINITY VALUE:20,000 GBP

BILLING INFORMATION
INSURANCE : 00 USD
CUSTOMS AND EXERCISE DUTIES : 00 USD
SERVICE AND DELIVERY CHARGES : 00 USD
GRAND TOTAL : 00 USD

NOTE
ALL CHARGES, PAYMENTS AND DUTIES HAS BEEN PAID BY SENDER. RECIEVER IS STRICTLY ADVICED TO ADHERE TO THE GENERAL POLICY, DELIVERY AGREEMENT, AND TERMS AND CONDITIONS OF AIR EXPRESS COURIER SERVICES ASIA, RECIEVER IS ADVICED TO MEET WITH OUR DELIVERY AND COURIER OFFICER OR REPRESENTATIVES FOR INTERNATIONAL DELIVERY AT OUR STIPULATED AND CONDUCIVE PLACE WITH A TRUE OR CERTIFED COPY THEIR INTERNATIONAL PASSPORT OR ANY ACCEPTABLE IDENTIFICATION INSTRUMENT IE; BIRTH CERTIFICATES, NATIONAL IDENTIFICATION CARD, AND OR INTERNATIONAL DRIVING LICENSE.

CONTACT PERSON
MS.CORSY ANDERSON
CONTACT NUMBER: +44-703-174-2633
EMAIL:enquiry@orientexpress.com

WEBSITE:www.orientexpress.ueuo.com

PARCEL AND CONSIGMENT MOVEMENT INFORMATION AND STATUS.
PARCEL POSTED FROM: UK–NETHERLAND–MALAYSIA–PHILIPPINES–FINAL DESTINATION.

CURRENT STATUS :  Parcel Arrived And With-held In Malaysia
Discrepancy Detected(currency violation)code CVX/297/TY7
UK, DELIVERY CODE IPPG/54 DST

Orient Express Courier Services is a privately owned and well registered company of a good standing in United Kingdom with global affiliates and delivery. All our clients are guaranteed the best first class and world standard services. We dispatch our services and duties abiding by all the rules, and laws of all the territories and countries where we operate both international and local. For further enquiries please contact us.

I hope that this information would be sufficient for your purposes.

As you have already probably guessed, don’t send any money. This is a scam which seems to be originating in Malaysia but using a VOIP or “call me” number in the United Kingdom. Once such scam is this company is also operated by this phony shipping company:

http://orientexpress.ueuo.com

Obviously this “Orient Express” is a fraud but look how many women are being scammed by simply using different URLs to pull them up:

http://orientexpress.ueuo.com/AE900027538213741E.html
http://orientexpress.ueuo.com/AE9000275382142E.html
http://orientexpress.ueuo.com/AE9000275382143E.html

Note the contact number:+44-703-174-263

What is a Malaysian branch of a shipping company using a British / UK phone number?

The man who may have befriended you may say that he is originally from the UK – but the phone number probably uses this same prefix:
+44-703
+44-70

Note that all of these phone numbers are VOIP based – this stands for “Voice Over Internet Protocol” if you aren’t familiar with the acronym. This means that the telephone number isn’t your standard “land line” that is installed by a phone company in the UK. It is a phone number that is forwarded to another phone number, land line, cell phone or voice mailbox. The person using this number may not actually live in the UK but the calls to this number is a “follow me” number – it will forward to a phone anywhere in the world the account holder wants. So let’s say, for example, that I live in Malaysia. I can set up a VOIP phone account in the UK to get a 44 (70) number. After getting this UK-based phone number I can set it to forward directly to a nubmer in Malaysia. For those who don’t know about these follow-me VOIP services, you would never suspect that your con man lives outside of the UK.

Here is a rather amusing and interesting note – the company domain address is a subdomain, not a full domain. If you send inquiries, they will go to the domain name, which is a racing company: http://orientexpress.com/

General Rules when using Romance, Love,  and Dating Sites and avoiding scams:

1. Don’t be embarrassed to ask personal questions of a man who is trying to woo you that require verifiable answers. Doing so is not impolite and they will be taken aback only if they have something (or someone, like a wife) to hid. If this person is employed, simply ask the name of the company. Additionally, ask yourself this question – why is a man in another country so interested in meeting you? While I can understand how great you are, how are the two of you supposed to see each other and have a relationship? What’s the plan?
2. Check this person’s email address – do they have a Facebook or other social networking account? If so, is it populated with other friends and seem legitimate?
3. Check the phone number you’re given and do a lookup in a search engine. Check the country code and prefix. If there is some evidence that the number is a VOIP /follow me phone number, then you should question where the caller is truly from! Does his number ever show up on your caller ID and, if not, is it private?
4. Always check out the full domain of any business purported to be real – no legitimate company would use a subdomain of a full domain.
   http://orientexpress.ueuo.com/ – subdomain with a bad web site
   http://www.ueuo.com/ – it’s a free hosting web site!
5. If any official notification to you seems to contain a reasonably high number of words spelled incorrectly, chances are the company is not legitimate.
6. The ULTIMATE hint that you might be a potential victim of a scam – if you are ever told to send cash via services such as MoneyGram, Western Union or any other “instant money” transfer – DO NOT DO SO! The use of these services with someone with whom you are not sure is bona fide will almost always results in a scam. Once your money is sent it’s gone – it’s not like a credit card transfer that can be reversed.
7. Anyone who sends you gifts early in a relationship is suspect, doubly so if they send a parcel that requires you to send money to get your parcel! These scams typically involve you sending money for some reason, e.g. they send a check to you (usually endorsed) that has more cash than necessary and you should send cash back for the difference, etc.

Good luck finding love and romance and be careful!

I’m hoping there is more to this story than appears to be written and reported by the Canadian Broadcasting Company. Most of the articles I’ve read seem to be harping on the angle, that using Facebook to terminate medical benefits is wrongful. Nathalie Blanchard reportedly told CBC that her doctor advised her to have fun as a way to forget her problems, including nights out at a local bar and short getaways to sunny destinations. She complains that Manulife told her that her Facebook photos are evidence that she’s no longer depressed and she has hired an attorney to explore next steps. Blanchard’s lawyer, Tom Lavin, stated “I don’t think for judging a mental state that Facebook is a very good tool.”

I’m trying to understand how and why these extended benefits could have been justified in the first place. Thanks to the unchecked, massive theft responsible for the downfall in economies worldwide, numerous people are suffering from serious clinical depression. What is preventing all of them from receiving a year and a half vacation sick leave on an insurance company such as Ms. Blanchard? I thought that only Americans had such a “Constitutional Right” to happiness, not Canadians.

Blanchard’s lawyer requested a new psychiatric evaluation of his client and thinks Manulife’s investigation was inappropriate. Blanchard estimates that the Facebook debacle has cost her thousands of dollars in benefits. So how much has her debacle cost policy holders in the form of the rising price of health insurance premiums? Am I missing something here?

Challenge of Changing the Licensing Model

Changing the provisions of a software license can be most challenging, especially when it may significantly impact the timing and amount of payments required from customers. I think that there are at least three fundamental rules a company should follow and plan carefully in advance of such a change:

1. Communication: Listen to and address customer concerns – ensure that the licensing and pricing changes are easily understood, accomodating and provide reasonable prior notice
2. Pricing: Calculate a reasonably acceptable market price and appreciate your true ceiling for customer tolerance
3. Execution: Ensure your sales and customer support team is ready to carry out the change and address anticipated negative feedback

Part I: Adequacy of Communication

For almost 10 years, customers of Jelsoft could purchase a forum license for a fee of roughly $160-180 which provided one year of product updates and an annual maintenance renewal option of $40. Without any prior notice, vBulletin sent out a confusing “pre-sale” email on October 13 to “preferred customers” informing them of important details which would be effective immediately. A new “powerful” product was announced in two varieties – (i) a new version of the existing forum product and (ii) the “suite” which also included additional content management modules. The existing license structure would be be changed from the purchase and annual maintenance subscription fee model to a one time payment for each release of a major version of the software. Customers were given a two week decision period to either pay for an upgrade to the suite from their current vBulletin 3 forums product or pay significantly more later (emphasis added.)

As a preferred customer with an active license, we are excited to offer the vBulletin Publishing Suite at a pre-sale discount price of only $130 (over 50% off regular price). This is a truly limited one-time special offer giving you $120 off the upgrade price but will expire on Friday October 30, 2009.

Customers arrived at the newly designed vBulletin web site, sporting a confident Superman-like mascot tearing open his buttoned-down shirt to reveal a “V” on his tee and a nifty new powerful URL – best-forum-software.com. When trying to purchase this special offer, many customers discovered the $130 upgrade price for an active license was not accurate. What IB might have intended to say was that the only customers might qualify would be those customers who were still within the first year from date of purchase and those who had annually renewed their annual maintenance subscription fees and what Jelsoft prior referred to as a “license renewal” or “annual update service.” Since an owned vBulletin license does not “expire” and the licensee could continue to run the forum software (but not receive updates), then a customer who owned a license to the software, by definition, still has an “active license” that is “effective until terminated.”  The lack of an adequate distinction by vBS led to a wave of customer confusion that spread through the vBulletin presales forum like a pandemic. This pricing “anomaly” was explained by vBulletin General Manager, Ray Morgan’s post on October 14 not as an error, but as follows (emphasis added):

Due to an overwhelming response and interest in the pre-sale event for vBulletin 4.0 Publishing Suite, we’ve decided to extend an offer to those customers with inactive licenses. For licenses that expired in the last 12 months, we are offering an extra $45 discount for advance ordering, in addition to the publicly available pre-sale savings. This means the all new vB 4.0 Publishing Suite will cost you only $190, a total savings of $95. For licenses that expired more than 12 month ago, we are offering an extra $25 discount for advance ordering, in addition to the publicly available pre-sale savings. This means the all new vB 4.0 Publishing Suite will cost you only $210, a total savings of $75.

So the official explanation of the original email is still wrong but I’ll explain what they meant to say. vBS intended that NO upgrade offers were to be extended to customers who had active licenses but expired annual maintenance subscription (and perhaps expiring just a day ago.) As a result of “overwhelming response” from customers (complaints?), instead of paying $40 + $130 for a renewal fee for annual maintenance subscription plus the upgrade, customers would pay $60 + $130, resulting in a “savings” of $95. And if your annual maintenance subscription expired more than 12 months ago, instead of paying the $40 + $130 fee you’d pay $90 + $130, resulting in a “savings” of $75. Are all of these special customer “discounts” clear? Astonishingly, the response I read in the forums that “excused” the emailing snafu was the following honest explanation by a vBS staff member:

Actually, the system was written so that it doesn’t make any differentiation between active or inactive licenses. Why we don’t know. You can sure it will be changed before the next big promotion though.

This is certainly not what is expected from the marketing department of a public company. I appreciated the rare, honest reply but let’s have more transparency. Considering that Internet Brands and vBS promised vehemently that subsequent promotions will never be as generous as the current pre-sale, I wonder whether the apologies will be forgiven by customers. Even more interesting is that contract and consumer law suggest that a unilateral and non-obvious mistake in an offer is binding on the offeror – I wonder if this would make for an actionable case by customers with active licenses but expired maintenance subscriptions.

All of these issues could have been dealt with appropriately had vBS provided some prior notice to customers about imminent and important license changes. Management could have responded to and addressed important and overlooked customer concerns. In addition to a feeling of disrespect, customers were not provided with ample time to understand their options and make reasonable choices. For those who invested in multiple licenses, the huge cost of having to shell out $130 to 210 per license within two short weeks could present significant financial challenges. Notification to clients of these policy changes would be extremely difficult and require a lightning quick response for an explanation, approval and payment. Did anyone at Internet Brands solicit opinions from customers and address what would seem to be obvious customer concerns? Why the need for a high pressure two week pre-sale? Where was the dialogue? But more than just an inconvenience to customers, not having knowledge of the new policies would result in customers losing actual money which would find its way into the pockets of vBS and Internet Brands, as you’ll see shortly.

Part II: Justification of Pricing

The world of php development with visible, modifiable source code is an interesting, unique, creative community environment. Jelsoft grew exponentially because the founders and original employees, many of whom are unfortunately no longer with the company, understood the quid pro quo — provide a good product at a reasonable cost, care about your customers and you will generate enthusiasm and loyalty from a creative group of zealous adopters who will volunteer enhancements on their own time. It was commonplace to see customers donating free technical support and valuable vBulletin product enhancements for free, significantly increasing the value of the underlying forum product.

In general, annual maintenance fees and software updates will rarely extend beyond the 50-70% cost of the purchase price. Customers feel that they should have retain some tangible residual benefit as a product adopter and investor. This sentiment is probably more prevalent amongst a customer base consisting of a contributing, programming, developing online community. I am not sure that the new management team at Internet Brands that replaced most of the founding team fully understands and appreciates why Jelsoft grew into the juggernaut it has been and how to properly maintain the symbiotic relationship. An offer for a $130 upgrade or $285 new is not by itself an unfair price - I think it could be - but the timing required to pay and lack of equally fair treatment to customers across the board is a significant problem (e.g. the additional penalties to licensees with expired licenses and those wishing a bare forum upgrade.) But the two week pricing ultimatum and significant reduction of the value of purchased software licenses seemed to send one message to the loyal development community - there is not much perceived value in your being a patron and contributor and that we, the company, are in sole control of our own destiny.

From my deciphering of the terms (please correct me if this is wrong), forum owners were left with two choices: (i) pay a forum upgrade fee of $175 that is an astounding 90% of the cost of buying a new forum license outright ($195), or (b) within two weeks and without seeing the product or having an estimated release date, pay from $130 up to $210 based upon whether your annual maintenance subscription was active. If it wasn’t active and you didn’t know you should have renewed for $40 (how could you?), the “special offer” meant that you’d pay $5 less or $15 more than the price of buying a brand new forum! As a result of the Internet Brands pricing plan, the value of a customer’s vBulletin forum license version 3 plunged instantly from $180 to practically nothing. After all, who would pay much for a $180 license that now cost $175 just to upgrade if a new license cost just $195? $5 to save $15? The same went for the $250 upgrade fee post pre-sale, which is just $35 less than the $285 asking price. So what is the net result and why is this important? Because by making the customers $180 license worth almost nothing on the resale market, all sales by new customers will be new licenses purchased directly from Internet Brands. This might explain how Internet Brands is “setting sales records” in their press releases!

It was even worse for customers who purchased vBulletin 3 forum add-on products (such as blogs and project tools) from vBS, who apparently lost their $50+ investments, being entitled only to the same upgrade options to the vBulletin suite as a customer who purchased only the forum product. Customers who wanted or needed to just stay with version 3.x and continue receiving the upgrades are offered no $40 option at all of which I am aware – the only choice is to pay $175 – $210 to be forced to upgrade to the pre-sold but still unreleased version 4. It seems unconscionable to not inform a customer who bought version 3.x before the pre-sale of a need to pay an annual maintenance subscription for $40 or continue to offer this option. Numerous requests in the vBulletin forum to define actual company policy went unanswered.

In the forums, customers alleged consumer fraud – that the $310 price paid by customers occurred because vBS was selling product under old licensing terms when it knew that the sudden change to the new model would require an additional $130 investment. In my experience and to promote fairness, it is industry custom for software developers to provide free upgrades for license purchases made in close proximity to a release of a major upgrade – a grace period. To my knowledge vBS provided no such benefit. As a result, a customer who purchased vBulletin 3 in late Semptember for $180 would need to pay an additional $130 in the October pre-sale in order to be guaranteed receipt of all vBulletin 4 updates. $180 + $130 = $310.  With reasonable prior notice, that same customer might have waited a week to pay just $235 for a new license. Customers with expired annual maintenance subscriptions had expired could pay $40 and avoid newly created vBS penalties of an additional $20 – 80 for the upgrade.  I personally don’t see the cost “savings” – do you?

Part III: Successful Execution

As if the pricing confusion didn’t cause enough chaos, vBS didn’t show any vBulletin 4 product to customers who were expected to pay as much as $210 to upgrade. General Manager Ray Morgan responded to mounting complaints in the vBS customer forums about not seeing what had been allegedly in development for a year with his post on the night of October 21 (emphasis added):

We know everyone is anxious to see vB4 in action, so here it comes! We are planning to upgrade vBulletin.com to vB4 starting very early tomorrow morning. The plan is to put /forums/ into maintenance mode in the middle of the night (Pacific time) and be live again by mid-morning. Please note that this rollout will be an early beta release. By early, I mean really early, much earlier than betas have historically been rolled out on vb.com. It is not a release candidate, so there will be rough spots, which we’re still working on, but we are choosing to make this available now in order to give you the earliest possible view of what is being built.

So the product being sold in this limited pre-sale offer is in early stage development – I mean really early. Perhaps I’m understanding why there is no anticipated release date. The message continued:

Why didn’t you wait until the product was more “done”?
To give you the earliest possible view of the new vB4.

Why didn’t you wait until the CMS could be released along with Forum and Blog?
To give you the earliest possible view of the new vB4.

Why aren’t you delaying the release until feature _____ is implemented?
In the spirit of release early, release often, we want to get releases out to customers early, in order to get real-world feedback, and often, so that they can start benefiting from basic features as soon as they are available, with more advanced features following shortly after in subsequent releases.

See you in the morning!

So vBS was upgrading their own forum during pre-sale week to be nice to its customers, not to address mounting concerns of “seeing is believing.” Well, the vBS customer forum wasn’t back the following morning… nor the next morning after! During the extended downtime period, customers lampooned the new vBS Superman reference, best forum software URL, and a mysterious cartoon skunk that appeared on the “down for maintenance” page where the customer support forums had been. General manager, Ray Morgan, explained on the afternoon of October 24 why the customer support forums were inaccessible for over 24 hours (emphasis added):

We decided to take some extra time before bringing the forums back up after the upgrade to 4.0. Briefly, here’s what happened.

First, the good news: The installation of 4.0 itself actually went as planned. The upgrade to 4.0 Publishing Suite from the 3.8.4 base product was seamless, and that agrees with the success the alpha/beta team has seen up to this point. The issues we encountered were related to the fact that the instance of vB running on vBulletin.com has integration points with various business systems: administration, release management, ticket support, the product information site, and more. Cooler heads make better problem solvers, so we chose to investigate and solve the problems with the site offline rather than live to the world.

The issues we ran into are unique to our environment, and they are not things that would factor into a normal customer installation. We’re happy to have the forums live and stable. As noted in my announcement Wednesday night, this is a very early beta release, so there are still known bugs yet to be fixed before the gold. As you find bugs, you may report them here as usual. As we work through the beta cycle, we will periodically update this installation to include the latest bug fixes.

Got it – so this wise decision made during a limited pre-sale period included extended downtime because the cool, sharp heads thought it would be wise to show off the forums on their own live customer support forum and not on a testing site. They also provided no view of the back end administration or any of the extras included in the suite. I won’t elaborate on the extended confusion in the vBulletin customer support forums and allegations by customers that they were banned for criticizing the company’s handling of this entire upgrade experience.

Conclusions – So Where do we and vBS go from here?

As a long time owner of vBulletin software and contributor to the vBulletin customer forums and vBulletin.org modifications forum, I’m not sure where this once innovative product is headed. The product certainly seems far from being released, especially the suite. I can only imagine that this presale has placed great stress on the development team to officially release this very early beta product out the door as soon as possible, even with a multitude of issues (and upcoming explanations that this was done “to satisfy the customer and get a first exciting look.”)

It seems to me that many customers who chose to upgrade did so not because they had any faith in the upcoming product - they hoped to save the fleeting value of their investment in their vBulletin forum licenses by reselling the suite version later when the price rises to full retail. I wonder whether the flow of free forum modifications may slow to a trickle by angry contributing developers who feel unappreciated. I’ve been forced to look at several competing forum software packages, all of which are quite impressive – these include the commercial Invision Power Board Forum Suite and the free myBB, phpBB and Simple Machines Forums software. Customers have been vocal about their migration away from vBulletin – angry sites like vbTruth, vbFlames, vBull, and if names are correct, it seems this may have compelled vBS General Manager Ray Morgan to provide explanations on an external site, AdminAddict.

New customers may question whether to trust this new Internet Brands management team, who are not providing any reasonable estimates as to time periods for major version upgrades. During times of limited cash flow, will these paid number “version upgrades” arrive with greater frequency? It’s difficult to say. The old guard was beyond reproach. This new executive management team seems to be as confident as ever, believing that their power of market share will ultimately outlast any initial negative customer dissension. The licensees will whine and complain but, in the end, they will begrudgingly crawl back and pay the upgrade fees for the best forum software… ever. And they will donate their modifications for free en masse. This remains to be seen, especially during the present “global recession.” What we can say for sure is that this is certainly a good case study to follow, from a business and legal perspective, for companies seeking to change their software licensing models.

AT&T relayed concerns to the FCC in August, that iPhone users placing voice calls over its data network would significantly decrease customer revenues, resulting in the cost being passed onto consumers in the form of higher priced iPhones.

Apple and the FCC also issued laudatory statements about the decision and Apple will amend its agreements to include VOIP calls.

From a consumer standpoint, this is an important decision as customers will be able to use the “unlimited data” portion of their plans without voice calls eating into their own minutes.

Ralph de la Vega, CEO of AT&T’s mobility and consumer markets division, stated: “Today’s decision was made after evaluating our customers’ expectations and use of the device compared to dozens of others we offer.” AT&T spokesman Michael Balmoris said that the decision was in progress for several months and had little to do with the heightened scrutiny into AT&T’s practices.

Interesting to note that, in addition to its reply, Match.com filed a motion to dismiss on the basis of a lack of jurisdiction of the New York Federal Court, claiming that the user agreement specifies that any disputes involved the Match.com web site must be litigated in the state of Texas. More upcoming on this case soon.

As one would expect, there is history between the parties. Amanda Bonnen filed against Horizon after an incident in March when a contractor caused a roof leak that affected some of units at 4242 N. Sheridan Road. Horizon claimed no mold was found but conceded she experienced leaking into her apartment. According to a Horizon press release, “…all tenant grievances were quickly and amicably resolved, except Ms. Bonnen’s. She moved out of her unit on her own volition June 30, 2009 at which time there was no evidence of mold in her apartment.”

Apparently in the course of due diligence for Bonnen’s action, Horizon’s lawyers discovered the offending tweet. So what did Horizon do – have a conversation with Bonnen and demand its removal? Apparently not. Jeffrey Michael, whose family has run Horizon for more than 25 years, allegedly said: “The statements are obviously false, and it’s our intention to prove that… We’re a sue first, ask questions later kind of an organization,” noting that the family manages over 1,500 apartments in Chicago and wants to preserve its good reputation.

One can only wonder whether the repercussions from the negative publicity are greater than the damages sought over this single tweet.