Actually, May 25 was a quiet day or I haven't found all the emails, yet. If I find them I will add them. It picks up again on May 26, 2006. I didn't bother trying to go from the earliest time to the latest because it's just too much effort. Y'all will have to just read backwards on this one.
RE: Absolute Write--Return of Intellectual PropertyFrom: James Cordray [xxxxxx@totalweb-inc.com]
Sent: Friday, May 26, 2006 7:03 PM
To: 'C.E. Petit, Esq.'
Subject: RE: Absolute Write--Return of Intellectual Property
Ok let's try this again I really do want to get this over with, the nondisclosure is to protect any of the files that we have on the server as the wording of it would imply it would have nothing to do with AW's property for the most part we would not want certain config files that belong to JC-Hosting to be disclosed to the public and of course this agreement between both parties would not be disclosed.
This is our standard NDA form with a few small changes under this agreement that any person that has not acknowledge our TOS or AUP should sign, it is to protect our business.
As for the legal council issue, I am not implying that you may not act as her legal council, just while accessing the files from the FTP account we do not want this to be a legal action by Ms. Glatzer's attorney/legal council. (this would imply that we had to employ legal council also, so check the TOS this could mean Jenna is labial for legal fess and we do not want to imply that in this case)
As we stated in the email just have Ms. Glatzer or you which ever write up the letter and send them over signed, and if you need a signed copy back that is not a problem either.
Let's just keep it simple and friendly, by time we get the first fax the paypal payment can be made the FTP account will be set up with full access to the site I do not want to hinder or slow down this process with read-only file access.
As for the criminal investigation this has nothing to do with Jenna this is the illegal access to our server I am in no way implying that Jenna is involved, unless it was her accessing the server and she has already denied any involvement in that if I remember correctly.
Now as for payment if looked at closely and added up the total is more then $112 in trying to send an email in such a hasty time frame Stephanie added wrong, she was copying from a file that I had to keep track of the total cost of our out of pocket expense, she removed the Lawyer fees and the fees for server investigation (which were added just incase Jenna was involved in the illegal access which she has denied so fees removed) the actual total is $219.95 but as this was a clerical error on our part we will not bicker over it.
If it is really just the matter that at this time AW can not make the full payment I am sure that we can work something out. We just want to get pass this. It is taking way too much of my time that I could be doing some productive with.
It will take another 72 hours if you want to get with our lawyer as it is a holiday weekend, we assumed as Jenna was offering an agreement that she would have the documents already written up and ready to proceed, if not then we will contact our lawyer on Tuesday and have the papers written up ourselves (of course this is depended on the his schedule which of course could add a few more days). All we have at this time is our standard NDA to protect our IP that you or who ever might have access to while on the server.
Well I guess it is back to square one unless we hear something a bit more encouraging from either you or Jenna we will contact you when the papers are written up and ready for your viewing.
Have a good Memorial day weekend,
JamesC
Senior Internet Technology Adviser
Email: jamesc@totalweb-inc.com
ICQ# 49107171
Total Web-Inc Helping You Bring Your Business to the World
-----Original Message-----
From: C.E. Petit, Esq. [mailto:xxxxxxx@authorslawyer.com]
Sent: Friday, May 26, 2006 5:25 PM
To: James Cordray
Subject: Absolute Write--Return of Intellectual Property
I'm a bit surprised at some of your most-recent message to Jenna. I think we
can work this out, but you're going to need to calm down and be realistic on
what you can get... and what is actually needed.
(1) I am Jenna's counsel. There is no way that you are going to select
Jenna's counsel for her, and she and I will not agree that "Mr Petit is no
longer representing [Ms Glatzer] in a legal capacity but solely as the duly
appointed agent to retrieve your data through a FTP access user account."
That is FAR beyond what would be necessary... particularly if, as I
suggested, you set up the retrieval account as read-only. It is completely
routine in the media industry for counsel to do the actual retrieval of data
upon a shutdown. Keep in mind that a retrieval of data only does nothing to
alter your position or circumstances.
(2) I do not think that you mean an NDA (nondisclosure agreement), as there
are no trade secrets at issue. I think you mean a covenant against
disparagement. That can be worked out (see below), but it's going to need to
be two-sided--not just that Jenna will not criticize you, but that you and
your company will back off of the public statements, too. Please note that
neither Jenna nor I, nor in fact any authorized representative, have done
more in a public statement than exasperatedly complain that the notice was
too short (and I haven't even done that much).
(3) There is nothing criminal here involving Jenna. I have seen NOTHING in
any of the many statements made that comes even close to describing a
criminal act; the MOST that I have seen is a potential breach of contract,
and only potential at that. The TOS and contract that would govern are those
that were actually in effect, and I've found nothing indicating that shell
access is prohibited or that the account holder cannot delegate maintenance
duties--particularly if the username and password in question did in fact
belong to an authorized user. May I suggest that you back off of the
accusations of criminal conduct--by whomever--so we can get this resolved?
(4) We cannot agree to allow you to continue blocking access to AW's
intellectual property "until all fees are paid." AW has already given you
commercially adequate assurances that the outstanding invoice of
approximately $112 will be paid promptly, and in fact requested payment
instructions that have not yet been forthcoming. Further, you had previously
agreed to allow same-day access to the files, although that was not provided.
All of that said, I think what you're actually looking for is something like
this:
* The parties agree that the circumstances of the termination are considered
confidential, and that neither party shall bring any action or complaint
against the other arising from or related to the termination or
communications surrounding the termination, except as any such future
communication may breach this agreement.
* The parties agree that all financial details are confidential.
* TotalWeb and its affiliates agree that:
+ Absolute Write owns certain intellectual property--the contents of the
AW website--which must be made available for retrieval by AW or its
representative; and
+ TotalWeb and its affiliates will not disparage, criticize, or otherwise
comment negatively upon AW, its principal and officers, and this incident,
whether directly or by implication.
* Absolute Write and its affiliates agree that:
+ TotalWeb and its affiliates have the right to preserve server data for
their records, but not to otherwise reuse any material on the AW site for
any purpose; and
+ Absolute Write and its affiliates will not disparage, criticize, or
otherwise comment negatively upon AW, its principal and officers, and this
incident, whether directly or by implication.
I suggest that you have your lawyer contact me directly. We can cut through
a lot of the chaff that way, and I will be available (certainly by e-mail)
over the holiday weekend.
=====================
C.E. Petit, Esq.
http://www.authorslawyer.com http://scrivenerserror.blogspot.com
This message may contain legal commentary. Unless specifically noted
otherwise, such commentary is NOT intended as legal advice for any
particular situation.
****************
I want to take a moment here to point out some things with their terms.
* The parties agree that the circumstances of the termination are considered
confidential, and that neither party shall bring any action or complaint
against the other arising from or related to the termination or
communications surrounding the termination, except as any such future
communication may breach this agreement.
* The parties agree that all financial details are confidential.
* TotalWeb and its affiliates agree that:
+ Absolute Write owns certain intellectual property--the contents of the
AW website--which must be made available for retrieval by AW or its
representative; and (This constituted a problem for us because we were receiving hordes of email claiming that we were holding various people's intellectual property. Who's intellectual property is it, anyway?)
+ TotalWeb and its affiliates will not disparage, criticize, or otherwise
comment negatively upon AW, its principal and officers, and this incident,
whether directly or by implication. Not one word about reciprocation meaning they could disparage us all they want and, indeed, continued to do so. If all they were concerned about was retreiving the data, why the strong arm tactics and why didn't they stop harassing us through others?
* Absolute Write and its affiliates agree that:
+ TotalWeb and its affiliates have the right to preserve server data for
their records, but not to otherwise reuse any material on the AW site for
any purpose; and
+ Absolute Write and its affiliates will not disparage, criticize, or
otherwise comment negatively upon AW, its principal and officers, and this
incident, whether directly or by implication. (Were we supposed to fall for this? Why would AW disparage itself?)
I suggest that you have your lawyer contact me directly. We can cut through
a lot of the chaff that way, and I will be available (certainly by e-mail)
over the holiday weekend. (This effectively cut off all communication with the site owner and her lawyer until we could talk to a new lawyer. See note carried over from page 3. Just because he was available didn't mean we had to jump through hoops to comply.)
*********
From: C.E. Petit, Esq. [xxxxxxx@authorslawyer.com]
Sent: Tuesday, May 30, 2006 7:03 AM
To: James Cordray
Subject: Re: Absolute Write (RESEND)
Phone: 217.337.1699
Fax: 847.589.6453
Address:1012 N Busey, Urbana, IL 61801
Keep in mind that you may NOT attempt to charge Ms Glatzer for any counsel
fees you incur.
James Cordray wrote:
> As per your request we will have lawyer contact you.
>
> Please send your business address, telephone number and fax number so
> we may pass it on.
>
> Now that our lawyer is handling this matter I see no reason for us to
> continue with these communications, and any further communication sent
> to us will now be forwarded to our lawyer.
>
> JamesC
> Senior Internet Technology Adviser
> Email: jamesc@totalweb-inc.com
> ICQ# 49107171
> Total Web-Inc Helping You Bring Your Business to the World
>
> -----Original Message-----
> From: C.E. Petit, Esq. [mailto:xxxxxxx@authorslawyer.com]
> Sent: Monday, May 29, 2006 4:52 PM
> To: James Cordray
> Subject: Absolute Write (RESEND)
>
> (Note: I am resending this e-mail, originally sent at 1007/27May06,
> because it has just bounced with an "unspecified SMTP error".)
>
> I'm afraid that your reply is in part nonresponsive. I really strongly
> suggest that you have your counsel contact me directly, because I
> suspect
> that the nonresponsiveness is at least in part misunderstandings due to
> the
> old "telephone game" in action. That said, I have interleaved several
> comments below, and I have added a concluding statement below that.
>
> James Cordray wrote:
>> Ok let's try this again I really do want to get this over with, the
>> nondisclosure is to protect any of the files that we have on the
> server
>> as the wording of it would imply it would have nothing to do with
>> AW's property for the most part we would not want certain config
>> files that belong to JC-Hosting to be disclosed to the public and of
>> course this agreement between both parties would not be disclosed.
>
> An FTP download would not disclose any config files, particularly if
> the
>
> username's permissions were set for read-only. This is trivial under
> any
>
> version of Apache.
>
> If you remain that concerned about third-party access to files, it
> would be trivial to burn a CD-ROM (or two or three) of the data
> directories and mail
> them. That would completely prevent any retrieval of "config files,"
> since
> you could simply omit them from the burn. Although this seems an
> old-fashioned method, it seems to me that doing so would prevent any
> possible unauthorized access. In any event, we MUST have a decision on
> this
> by noon Central time on Tuesday, 30 May 2006.
>
>> This is our standard NDA form with a few small changes under this
>> agreement that any person that has not acknowledge our TOS or AUP
> should
>> sign, it is to protect our business.
>
> It is nonetheless not workable for the reasons I outlined before. You
> don't really want an NDA! An NDA wouldn't actually provide you with
> the protection
> that I infer you desire from the text of your other e-mail messages.
>
>> As for the legal council issue, I am not implying that you may not
>> act as her legal council, just while accessing the files from the FTP
>> account we do not want this to be a legal action by Ms. Glatzer's
>> attorney/legal council. (this would imply that we had to employ legal
>> council also, so check the TOS this could mean Jenna is labial for
> legal
>> fess and we do not want to imply that in this case)
>
> There is never an obligation to "imply [sic] council [sic]" in
> response to a voluntary action. Under the contract and TOS that were
> in effect at the time
> of the initial problems, Ms Glatzer cannot be liable for legal fees
> incurred
> due to your own action or desires.
>
>> As we stated in the email just have Ms. Glatzer or you which ever
> write
>> up the letter and send them over signed, and if you need a signed
>> copy back that is not a problem either.
>>
>> Let's just keep it simple and friendly, by time we get the first fax
> the
>> paypal payment can be made the FTP account will be set up with full
>> access to the site I do not want to hinder or slow down this process
>> with read-only file access.
>>
>> As for the criminal investigation this has nothing to do with Jenna
> this
>> is the illegal access to our server I am in no way implying that
>> Jenna is involved, unless it was her accessing the server and she has
> already
>> denied any involvement in that if I remember correctly.
>
> That is not what your initial note implied; your initial note implied
> that Ms Glatzer may be a target of any criminal investigation. In
> either event,
> hypothetical attempts by Ms Glatzer (or a hypothetical agent) to access
> a
> server on which she has/had a valid account can NEVER constitute a
> criminal
> act unless she had been attempting to access another account's data;
> please
> have your attorney describe these limits to you in detail if you do not
> understand the distinction. It's only ever criminal if one can prove
> INTENT
> to access information BELONGING TO A THIRD PARTY OTHER THAN THE ISP.
> I've
> seen _nothing_ that would support anything even close to this. I repeat
> my
> suggestion that you just completely drop all mentions of "criminal" in
> this
> context, as they are serving only to confuse matters?
>
>> Now as for payment if looked at closely and added up the total is
>> more then $112 in trying to send an email in such a hasty time frame
>> Stephanie added wrong, she was copying from a file that I had to keep
>> track of the total cost of our out of pocket expense, she removed the
>> Lawyer fees and the fees for server investigation (which were added
> just
>> incase Jenna was involved in the illegal access which she has denied
> so
>> fees removed) the actual total is $219.95 but as this was a clerical
>> error on our part we will not bicker over it. If it is really just
>> the matter that at this time AW can not make the full payment I am
>> sure that we can work something out. We just want to get pass this.
>> It is taking way too much of my time that I could be doing some
>> productive with.
>
> I apparently was not clear.
> * We have specifically requested payment _instructions_. The online
> form
>
> does not allow input of an amount different than the standard
> six-month
> hosting fee. Please provide either
> -- A mailing address and payee instructions for sending a check
> (we'll
> arrange for a certified check or money order) or
> -- Paypal or equivalent one-time-payment system instructions
> * Ms Glatzer could not possibly be liable for the "server investigation"
>
> under the contract she signed with you, regardless of the
> circumstances.
>
> Neither is she responsible for legal fees incurred by you at your
> option.
>
>> It will take another 72 hours if you want to get with our lawyer as
>> it is a holiday weekend, we assumed as Jenna was offering an
>> agreement
> that
>> she would have the documents already written up and ready to proceed,
> if
>> not then we will contact our lawyer on Tuesday and have the papers
>> written up ourselves (of course this is depended on the his schedule
>> which of course could add a few more days). All we have at this time
> is
>> our standard NDA to protect our IP that you or who ever might have
>> access to while on the server.
>
> I have discussed the problems with this above.
>
>> Well I guess it is back to square one unless we hear something a bit
>> more encouraging from either you or Jenna we will contact you when
>> the papers are written up and ready for your viewing.
>>
> [snip]
>
> Final thoughts:
> This entire contretemps was caused by precipitate, needlessly hasty
> blocking of account access. Had you allowed the industry-custom 24
> hours--and, in
>
> fact, had you complied with the counternotification procedures
> relating to our understanding of the specific allegations made by
> third parties--NONE of
> this would have happened. That would leave only the payment issue on an
> outstanding invoice that had not been made available to Ms Glatzer
> herself
> until a matter of days prior to the server cutoff. Ms Glatzer is not,
> and
> cannot be held, responsible for the abusive behavior of third parties
> toward
> you--particularly parties with a long history of abusive, and indeed
> unbalanced, behavior, such as Ms Bauer.
>
> =====================
> C.E. Petit, Esq.
> http://www.authorslawyer.com http://scrivenerserror.blogspot.com
> This message may contain legal commentary. Unless specifically noted
> otherwise, such commentary is NOT intended as legal advice for any
> particular situation.
>
>
>
>
--
=====================
C.E. Petit, Esq.
http://www.authorslawyer.com http://scrivenerserror.blogspot.com
This message may contain legal commentary. Unless specifically noted otherwise, such commentary is NOT intended as legal advice for any particular situation.
*******************
From page3: Unfortunately, or perhaps fortunately in the long run, our usual lawyer was retiring and moving out of town. This forced us to seek another attorney which took time. Our usual lawyer wasn't versed in internet law other than in a very general sense but advised of us the above. Our T.O.S. and A.U.P. are the same ones we have to agree to abide by with our data center.
It worked out for the best that we had to seek new counsel. We were unable to consult with the new counsel until June 1, 2006, however, she is well versed in internet law. She corroborated what the first lawyer advised. She did tell us to give the stuff to the customer and hope she goes away. She stressed the hope word because neither she nor us believed that would happen and it didn't as you will see in succeeding pages.
Further notation: On the day we consulted with the lawyer, I had a big briefcase of emails, screenshots, printed out webpages, and the like. I used up 3 reams of paper and two print cartridges, one color; one black and white, printing out the stuff. It was heavy carrying and still wasn't all that I had; only what I had time to print out between getting the appointment and seeing her.
Looking at everything, she said it would require more money than we have to pursue it since it would be a civil matter rather than a criminal one. While we could be fairly assured to recoup our costs, that outlay would initially be our responsibility. As far as the illegal server entries she advised that we turn that over to the authorities but since it was only two attempts it's probably low on their priority list. It may be some time before we hear anything about that.
******************
Always a "blowing off" of our concerns and the only thing that matters is the site owner and the site owner's reputation. We were being told we couldn't disparage them but they were free to do as they will to us; not only as a business but on some very personal levels.
Following these pages will be the "walls of shame" including screenshots from various sites around the internet. No matter what we did, we were going to be harassed, maligned, bullied, and libeled. I've seen it happen before and I doubt this time will be the last time.
In addition to the above we have this little gem after we've been told to have a lawyer contact them to which we had responded we would no longer communicate with them any other way:
From: Jenna Glatzer [xx@jennaglatzer.com]
Sent: Wednesday, May 31, 2006 3:18 PM
To: JamesC
Cc: C.E. Petit
Subject: Day 8
James,
As I'm sure you realize, your lawyer still has not made contact with mine. I am now on day 8 of lost site income. I have no forums, no storefront, a broken adserver, etc.
If you are being honest in your desire to get this over with, it's simple: give C. E. Petit that username and password so he can make a back-up of my files, today. You want to make agreements after that, fine, but you can't hold onto my data anymore.
I think I've been tremendously kind not to respond to your online screed, but if you continue dragging this out, my kindness will run out. You are disparaging me and my business, and holding my intellectual property hostage, for 8 days now. How much longer do you suppose I'll wait?
Jenna Glatzer
Editor-in-chief, http://www.absolutewrite.com
Author of The Street-Smart Writer and many other books
See Jenna's books at http://www.jennaglatzer.com/
I've yet to see any evidence of kindness in any of this. All I see are more demands and a veiled threat.
I will say in addition, that, yes, we did make some mistakes. Once C.E. Petit contacted James, James should have stopped communication then and there until we contacted another lawyer better versed in internet law and let the lawyer handle the situation. It wouldn't have gotten them their data any sooner but it would have saved us a lot of time and headaches dealing with the emails back and forth... or probably not, all things considered. He was told on May 26, that we would forward all communications from them to the lawyer but the site owner thought it was okay to threaten us on May 31.
I halfway believe Mr. Petit wasn't, or isn't, aware of all the facts, however, as her legal counsel he should have asked those questions before he contacted us. Instead, we were subjected to a lot of verbal tap dancing and an ignoring of the continuing defamation against us. Of one thing we can be certain, C.E. Petit is a member of the said site's community. It might have been his own self interests that prompted his actions. It would be in his best interests to safeguard a community in which he has invested so much time making a name for himself, wouldn't it? He is a person for whom I once had a lot of respect but, now....?
I've yet to determine why it was thought that we should act on their timeline of demands when no legal papers had been filed. Or was it just another bullying tactic? Oh, and we didn't ask for a nondisparagement agreement. What would have been the point when the deed was already done? That brings up another question. Was C.E. Petit aware of the defamation and tacitly or actively supportive of it? Did he also think it would get them what they wanted faster? He is a lawyer, after all, and used to intimidating people he sees as weak. The only problem with that tactic is we had nothing to lose. The damage had already been done. I see so many different interpretations that could be added to the events that a month later I'm still trying to sort out all the questions, and the ramifications of the answers to them, in my mind.
Foreword to the Walls of Shame