Filed under: Analysis / Opinion, Software, Blogs
Brian Ball responds to xPad developer's claims
[UPDATE: Moments before I posted this, Brian's post on macZOT mysteriously vanished and he's not responded to my IMs regarding where the post went. So the links to Brian's post below are broken until Brian decides whether he wants his side told in his own words or not.]
[UPDATE 2: Brian has put a post back up at the links I reference, but he's replaced his original post with a new one indicating he's "over it" now.]
Brian Ball has a few things to say about Garrett Murray's "Maniacal Rage," which I posted about earlier this evening.
Brian's response appears on macZOT and it's worth reading, word for word, as it is factually accurate to the best of my knowledge and it's always good to hear both sides of a story from the involved parties themselves. And Brian spells my name right, which I always appreciate.
The key points in Brian's post are not in dispute. The fact is that the contract between Garrett and Brian was not violated in the strictest sense. Garrett himself admits that and I didn't hide that fact in my post either. It was a dumb dumb dumb dumb dumb thing to have in the contract and Garrett has, I'm sure, learned his lesson.
But - and there's always a but - sometimes it's about more than what's technically correct. Sometimes it's about what's "right" in the broader sense. Brian says "There is no wrong action to defend. You simply have to read what was stated and just determine if what happened is really unfair, or if somebody had unmet expectations and went into a Maniacal Rage about it." It's worth noting if you are just tuning in that Garrett's blog is called "Maniacal Rage," lest you think that Brian is overreacting. He continues... "We had every good intention of bringing lots of xPad to the market because we really like the application. But once we decided that really wasn't part of the core strategy we held up our end of the agreement we made. The fact that Garrett is making xPad free confirms the fact that he himself realizes that xPad is not worth further development but is still a very useful application."
My take, and this is just my opinion as an uninvolved bystander, is that Brian lost sight of the bigger picture here and he could have handled it a lot better, while still accomplishing the same thing. He'd have come off less like a spoiled kid and more like a professional. I don't know Brian so I can't say he had ill intentions all along, but it comes off that way, whether he meant it to or not and whether he did or not. I would not go as far as many of you did in the comments on the last post, but I still think Brian blew it and his "I stuck to the exact terms of the contract and that's that" attitude really hurts him more than the act itself. Right or not, it's often about perception and not about facts. That's a lesson I have learned and forgotten and relearned many times, so it's close to my heart. Being right is great. Being perceived as being right is better.
[UPDATE 2: Brian has put a post back up at the links I reference, but he's replaced his original post with a new one indicating he's "over it" now.]
Brian Ball has a few things to say about Garrett Murray's "Maniacal Rage," which I posted about earlier this evening.
Brian's response appears on macZOT and it's worth reading, word for word, as it is factually accurate to the best of my knowledge and it's always good to hear both sides of a story from the involved parties themselves. And Brian spells my name right, which I always appreciate.
The key points in Brian's post are not in dispute. The fact is that the contract between Garrett and Brian was not violated in the strictest sense. Garrett himself admits that and I didn't hide that fact in my post either. It was a dumb dumb dumb dumb dumb thing to have in the contract and Garrett has, I'm sure, learned his lesson.
But - and there's always a but - sometimes it's about more than what's technically correct. Sometimes it's about what's "right" in the broader sense. Brian says "There is no wrong action to defend. You simply have to read what was stated and just determine if what happened is really unfair, or if somebody had unmet expectations and went into a Maniacal Rage about it." It's worth noting if you are just tuning in that Garrett's blog is called "Maniacal Rage," lest you think that Brian is overreacting. He continues... "We had every good intention of bringing lots of xPad to the market because we really like the application. But once we decided that really wasn't part of the core strategy we held up our end of the agreement we made. The fact that Garrett is making xPad free confirms the fact that he himself realizes that xPad is not worth further development but is still a very useful application."
My take, and this is just my opinion as an uninvolved bystander, is that Brian lost sight of the bigger picture here and he could have handled it a lot better, while still accomplishing the same thing. He'd have come off less like a spoiled kid and more like a professional. I don't know Brian so I can't say he had ill intentions all along, but it comes off that way, whether he meant it to or not and whether he did or not. I would not go as far as many of you did in the comments on the last post, but I still think Brian blew it and his "I stuck to the exact terms of the contract and that's that" attitude really hurts him more than the act itself. Right or not, it's often about perception and not about facts. That's a lesson I have learned and forgotten and relearned many times, so it's close to my heart. Being right is great. Being perceived as being right is better.
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Reader Comments (Page 1 of 3)
lifix said 11:36PM on 1-04-2007
I think that Laurie (the OP) is right that he is basically saying I stuck to the contract, but it should also be pointed out that he innitially argued that any money at all is better than no money, and Garrett should be lucky with what he got. I've read everything Brian posted and everything Garrett posted. It seems to me that Brian entered into the contract with Garrett without ever intending to complete payment.
- Brian has used the fact that Garrett wasn't making much money of xPad to support his actions. He stated that Garrett was lucky to be getting any money.
Garrett Murray: and i take offense that you think i should be happy with the 1300 because it's more than xpad was selling. that's not an argument--i wasn't actively selling xpad anyway so there's no comparison to be made.
Brian Ball: if you weren't actively selling xPad, then why wouldn't the money you made be welcome?
Brian Ball: We sold it on macZOT and you made $225, then a down of $920, and then a payment of $460
Brian Ball: $1625
- Brian (in the IM between him and Garrett) said that he knew that xPad wasn't worth 500 a month when he made the deal (he refrenced the ammount of money that Garrett was making monthly when he said this)
- Brian said he would not have entered into the contract without the escape clause
Brian Ball: I certainly couldn't have done the deal if I had to pay $5,000
Brian Ball: cash for the app
Brian Ball: Garrett
Brian Ball: look at your numbers prior to our deal
Brian Ball: those numbers certainly didn't justify the price we agreed on.
- If you read the whole text of the IM transcript, it appears that Brian spends more time trying to avert a PR disaster (too late dude) than actually talking about the facts.
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Tanner Godarzi said 11:43PM on 1-04-2007
Brian has been reportedly seen on Digg under the name ideabrian. Below are links to his comments made on the Dugg story.
http://digg.com/apple/Brian_Ball_of_macZOT_screws_developer_out_of_5_520#c4569323
http://digg.com/apple/Brian_Ball_of_macZOT_screws_developer_out_of_5_520#c4569502
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Tanner Godarzi said 11:44PM on 1-04-2007
Also another comment
http://digg.com/apple/Brian_Ball_of_macZOT_screws_developer_out_of_5_520#c4570339
The comments one there are worth reading, they go way into detail.
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Michael said 11:51PM on 1-04-2007
Respect meter is lowering by the second for Brian Ball lol. DUDE do yourself a favour and apologize. Do what's right. Your customers read this blog. Your customers read digg. Maybe, your ignorance in this is justice in itself.
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Tim Kimberl said 11:54PM on 1-04-2007
What a smuk, he removed the post because of all the comments left by MacZotters about how he was wrong... can't take the heat? be a man and deal with your mistake. What he did is only gonna hurt business for maczot...
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Laurie said 12:14AM on 1-05-2007
Brian clearly underestimated how his own macZOT community would react to this whole ordeal.
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Jon said 12:15AM on 1-05-2007
Sometimes your reputation is more important than being right.
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Stefan Wawrzyn said 12:16AM on 1-05-2007
This part of the IM logs struck me the most.
Brian Ball: if we were to do it over again, how could you see us working it out so that it was a win-win for both of us.. assuming I still couldn't invest the $460 / month on something that wasn't selling.
5:45 PM
Garrett Murray: brian, i wouldn't have sold it to you if you were more honest with me. saying you couldn't invest the monthly amount means you were never planning on paying it. which means signing that contract was pointless and you intended to default on it
Garrett Murray: i don't appreciate that kind of tactic
Brian Ball: no no
Brian Ball: I didn't go into the deal with the intention of defaulting
Brian Ball: Garrett
Brian Ball: look at your numbers prior to our deal
Brian Ball: those numbers certainly didn't justify the price we agreed on.
Garrett Murray: i gave you those numbers BEFORE you signed
Brian Ball: the fact that we both signed means we agreed. I get that.
Garrett Murray: do you understand who insane you sound to say that they didn't justify the price we agreed on??
Brian Ball: But don't you?
Garrett Murray: you LOOKED AT THEM and THEN sign A CONTRACT
Garrett Murray: i don't get what's confusing
Brian Ball: yes, and so did you.
Brian Ball: In fact, you wrote the contract.
Garrett Murray: if someone said to you, this car has only three wheels, and then you bought it, and then you took it back and said i'm not paying for this, it only has three wheels, people would laugh in your face
Brian Ball: or at least you sent it.
Garrett Murray: you knew what you were buying
Brian Ball: yes, and if someone said.. "but if you can't make the payment, I want the car back."
Brian Ball: actually, "If you don't make the payment, I want the car back."
Brian Ball: you presented the contract.
Brian Ball: that clause made it doable in my mind.
Brian Ball: I can't assume what you meant by it.
Brian Ball: it's just English
---------------------------------------------------
Brian forces the conversation of the topic that Brian sign the contract with the intention of defaulting on it. Strange he offers the idea that he couldn't financially support xPad given the numbers, when he knew before the sale of those numbers.
I find this extremely interesting.
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Stealth43 said 12:20AM on 1-05-2007
Mob Rule...such a pity...
Mr. Ball, I pity you. You do not make very good ad populum arguments, nor do you frame the arguments in your own favor....something your ex-frater does quite well.
What I have observed throughout this entire affair is two sides, both trying to use a (poorly worded) contract, to their own advantage.
The implied intent, based own the language of the contract, shows no fault, or fault on both sides of the fence. Mr. Murray wrote the clause into the contract (ironically enough, seeing as how he was the one who is aggrieved) in an attempt to protect his own interests, and to (if he was unsatisfied with MacZOT) allow him to opt out of said contract and look for alternative marketing opportunities for the product. Mr. Ball on the other hand was looking for a value added product to bundle with other offers from his site. Recognising that the product was not delivering what he intially thought it would, he used the clause to opt out of the contract.
What strikes me most is the irony of the fact that on his blog, Mr. Murray accuses Mr. Ball of being the unprofessional one, yet not only is he upset at someone opting out of a contract using a clause which he wrote in with intent to benefit himself, but he also has taken it upon himself to air his private dealings with Mr. Ball like so much dirty laundry in an attempt to gain sympathy for himself.
That. is unprofessional.
evaD
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Cameron said 4:31AM on 1-05-2007
Honestly, I don't really see what Brian did as wrong. While if we go by Garrett's assumption, then Brian used a sleezy loophole. But by Brian's assumption, it was a part of the contract. Given that Garrett added it to the contract, it fell to his responibility to explain to Brian the purpose of that clause, or to draft a clause that better protected his interests. He drafted a clause that could have multiple purposes and was unclear. There is absolutely no evidence that Brian knew why Garrett had wanted that clause. From my perspective:
Garrett and Brian agree to the sale. Garrett intends it as a final sale, Brian agrees to it as something he has the option to purchase in full. Brian defaults when he decided not to purchase it in full. Eventually the rights transfer back to Garrett. Garrett drafted a bad contract and Brian wasn't professional in explaining his intent to Garrett when he decided it didn't meet his business needs. However, that act is met equally by Garrett in posting that online rant.
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lifix said 12:36AM on 1-05-2007
@ Stealth43
No one here is saying that BB did anything wrong legally, we are just saying that it is unprofessional for him to enter into a contract, knowing full well that he couldn't keep his end of the deal, while planning to use an escape clause to get out of the deal. Further, he tells Garrett that he is lucky to be getting any money at all from the deal.
BB has demonstrated a frank lack of buisness skills in regards to this situation. If MacZot is doing so poorly that $4,000 is a significant ammount of money to the company something is going wrong there. BB should have realized that this was going to turn out poorly and should have made moves to make ammends. If BB had realized that while he didn't do anything illegal, he still did something rather questionable. Brian should donate the remainder of the money to the cause that Garrett supports, this would have averted this whole thing and made BB look like someone conscionable in the eyes of the people interested in this subject.
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macpomme said 1:02AM on 1-05-2007
A contract requires 4 elements:
1. Offer;
2. Unconditional Acceptance of an Offer;
3. Consideration;
4. Agreement to be bound by the terms of contract.
My view is that they are dumb and dumber. Why?
Garrett included a simple "put" option for the product and without a refund.
Brian used the contract terms to his obvious advantage.
And they are both dumberest for getting this aired in public without simply talking to each other - are they really so hard up for cash that they couldn't have settled a couple of thousand dollars somehow amicably, without this being a public joke on them both.
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Macadamias said 2:11AM on 1-05-2007
@ Stealth43
I agree that the Public Court is a bad way of getting to the true facts in private disputes. And I believe that both sides had no ill intent in their dealings. I do believe that much of the trouble came about from not communicating their individual intents or understanding the other parties intents when agreeing to the deal. Garrett is coming from the reference point of a developer and Brian is coming at it purely from the reference point of a businessman. Both are valid, but when Brian believes that Garrett came out of the deal quite well, he is only considering it from a business perspective. Garrett is much more concerned with the fate of his child/program and his users/supporters. I believe he originally wrote the clause to protect his program and users more than himself. The money is not that important. And really, $5000 is quite cheap for any program that includes full code, support, an existing user base, and a functioning website.
Your perception that Garrett made his post to gain sympathy and is thus unprofessional, while understandable, isn't bourne out by the contents of his post. He is very factual and upfront. He accepts full responsibility for making a bad contract. In fact the true reason for his post seems to be to explain to his user base what is going on with their favored program and finally what all this will mean to them. Taken in this light, his post is actually very professional.
Brian Ball did nothing "wrong" in a legal sense. However, the way he acted wasn't upfront in his intentions and doesn't create trust in the relationship. That is very important in business dealings and especially important in maintaining a good reputation. I believe that he truly tried to make the deal work. From what I've read about it, I also believe that he was a bit unrealistic in his expectations (He wanted to use the program as a free value-add to other bundles, yet complains about it's sales in the first month) and he doesn't have a solid understanding of developers and their concerns. This last point is important in that his business relies on good relations with many developers. (Unless that business model has changed recently)
I'm sure that both sides have learned some valuable lessons from this. I'm also sure that Brian has some damage control to do that he would be ill advised to ignore.
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ryos said 1:26AM on 1-05-2007
Below you'll find Brian's response post on macZOT which he apparently take down.
There are numerous Mac shareware developers out there who are watching macZOT closely as one of the potential sales channels. After this whole mess, most of them are probably thinking "I will not conduct business with macZOT!"
Brian claims that he did nothing illegal. Ok, fine maybe he didn't. But he messed with the Mac shareware community. Frankly, Brian's whining about paying $5000, which in my opinion is not a large amount of money if it takes legal consultation and other misc fees before we can even make a contract with the company.
Mac shareware developers are selling their apps on macZOT hoping for the fairness. macZOT shaped up to be a neat community site and I thought it was a great place to be for Mac shareware junkies! Well, it ain't now!!
-----
xPad & MacZOT
Here is our response to the Tuaw posting by Laurie Duncan
If you’ve seen either the Digg post or the Tuaw post about xPad and MacZOT, please read this and let us know what you think.
First, to get up to speed, please read Garrett’s post at: http://maniacalrage.net/past/2007/1/4/you_might_remember_a_post/
Here is the part where Garrett admits it was his oversight in writing contracts, not Brian’s fault for actually agreeing to it.
Note, Garrett wrote the contract.
"So, how did he [Brian] do it? He exploited a clause in the contract that I [Garrett] put in place to protect me from potential default. The contract stipulated:
If the buyer fails to make a payment after 90 days, this contract shall be void and terminated at which point all rights and license will revert back to the seller. At such a time, the buyer will no longer have rights to publish or use any of the materials covered in this contract. No refund will be made to the buyer.
In hindsight, this wasn’t the best way to protect myself, and it was a bad move on my part. Consider me too kind. I didn’t want to write "buyer must pay balance," because I didn’t want to make it an unfair situation.
[He then admitted it would be "unfair" to make the buyer pay the balance.]
Instead, Mr. Ball used this as a simple way to get out of this agreement. He simply stopped paying, stopped responding to emails, and kept selling the product. Eventually, in late November, he finally transferred the domain back to me and xPad became mine again.
Here’s the only part that some people think is wrong. I agree that if any sales were happening during that period, it would have been wrong. However, we were really trying to find a way to make it work from a business standpoint. As soon as we made the business decision to no longer represent xPad, we removed the site.
It’s clearly a misunderstanding on Garrett’s part, one that he is upset about. However:
1. He admits it was his fault.
2. He states he did that because he didn’t think it was fair to make somebody pay the balance.
There is no wrong action to defend. You simply have to read what was stated and just determine if what happened is really unfair, or if somebody had unmet expectations and went into a Maniacal Rage about it.
We had every good intention of bringing lots of xPad to the market because we really like the application. But once we decided that really wasn’t part of the core strategy we held up our end of the agreement we made. The fact that Garrett is making xPad free confirms the fact that he himself realizes that xPad is not worth further development but is still a very useful application.
macZOT! Today at 1/4/07 5:25 PM ZOT
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macuser03 said 1:21AM on 1-05-2007
I'm tired of all this silly sharewhere marketing shit anyway - its a bunch of 20 year olds stealing other peoples software to make a quick buck - then they donate a little of that to charity so they don't look like the thieves they are. MacZot seems to be no exception to this, fuck 'em.
I'm siding with the creator of the software on this one, Brian is just another asshole off to make money off of someone else's genuis - like the RIAA!
I don't care if I get flamed to hell for this comment, but, in short, contract or not, Garret worked hard on a piece of useful software and Brian fucked him over because all he seems to care about is money and business. We should get him on the apprentice ol' Donald Trump himself.
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xVariable said 3:30AM on 1-05-2007
Personally I think Bill is absolutely right, but I guess the crowd is "wise", right? Especially if they (or some "expert" or "authority" (Laurie) says so).
Ah well. Your groupthink can't protect you from pandemic, sheep. Know what I mean? I didn't think so...
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xVariable said 3:31AM on 1-05-2007
Bill? WTF is that? Brian, I meant...
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yVariable said 7:23AM on 1-30-2007
xVariable, Brian is a jerk and so are you. It's not groupthink that so many people are taking the side of the developer. It's good judgement.
MacZOT was extremely unwise to foul the waters like this. How hard would it be for some other promoter to create a MacZOT competitor at this point?
You'd only have to treat shareware authors half decently to outclass MacZOT, and with developer goodwill on your side, you could probably offer better deals.
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ywamer said 4:11AM on 1-05-2007
I say we own Brian over at macZot a boycott so he feels some of the pain of a what a "legal" choice to not pay is like.
Or better yet, LET's ALL BUY MACZOT's PRODUCTS USING PAYPAL and then default on the payments. Tell PAYPAL we never intended to buy. Or that we never received the product. Or that our accounts have been hacked and used against our will. Then he will have chargebacks forced upon him. All the money will dissappear from his account.
Maybe then he will realize that defaulting on a contract is wrong.
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Mandla said 4:42AM on 1-05-2007
This is why you should let lawyers draft your contracts for you. A few hundred dollars spent on a contract would have saved thousands.
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