It seems that Rogers Cadenhead’s “Winer Moment” continues full-swing. There are two points at issue here, and I’m no attorney, but I have some education and experience in this arena. The following analysis is given assuming the attorney’s letter is factually accurate and that Rogers’s response is also factually accurate:
The $5,000 paid for programming and hosting of “Share Your OPML” : Rogers will likely have to give back at least part of the $5,000. He was to get $10,000 and a 1/3 share of ownership in consideration for a) coding, b) hosting, and c) managing feeds.scriptingnews.com. I presume that he never got to (c). I presume that (b) has been going on since the inception of the idea and further that (a) was probably half-done. The the parts of (a) and (b) that Rogers performed in reliance on the verbal contract (despite the disclaimer of needing the contract in writing) will likely be unrecoverable from Rogers. What portion this is will be a question for a judge or jury. It would make sense, then, for the court to also pay Rogers for his 1/3 share and make a clean break of the situation. Of course, in this case, Rogers has to give dave the code that’s already written. Easier for everyone would be if Rogers just give Dave his five grand back.
The second issue is this talk of violation of Section 101 (et seq.) of Title 17 of the United States Code. Frankly, I don’t think Dave has a leg here. From §101:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is
a “derivative work”.
Based on this definition, as long as Rogers didn’t use Dave’s code, there’s no conceivable way his code is a violation of copyright. The copyright Dave has over the code in question applies only to the code, and not to the methods employed. For example, if Dave writes some code which draws a flower on the screen, he owns a copyright to that code. He doesn’t have any rights to programs which draw flowers on the screen, even if they do them in exactly the same way. Further, he doesn’t even have rights over someone who happens to write exactly the same code, as long as it was actually developed independently.
Since Rogers didn’t copy Dave’s code, and he didn’t create a “derivative work” based on that code, he’s home free. This is likely a tactic to make a settlement more appealing in hopes that he’ll be able to get his $5,000 back, although Winer is a big enough dick to try to ruin someone for no apparent reason.
It won’t work, though.