I received a court order dated 15 April 2010 dismissing the case on motion by the plaintiff. The lawsuit referenced in the previous post therefore appears to be resolved.
Recently in Legal Category
I've had a few inquiries, so to put this to bed:
The owner of Personal Threads filed a lawsuit against me.
I intend to defend myself against the allegations, and have retained an attorney to that end.
If you wish to follow the proceedings, you may do so, as they are a matter of public record. The case is in the district court, Douglas County, Nebraska, Doc. 1104 No. 235.
On Motivations
After I wrote last week's letter to the owner of Personal Threads Boutique and got it all packed up and ready to go, I posted it here, then popped on over to Ravelry to link to the post on the local group. I did so with the thought that the letter deserved dissemination in those circles having the greatest interest in that store and how it is run. My aim in posting the letter in the first place was twofold:
- I wanted to save some hypothetical future customer the pain of walking into a store where she might be treated, however subtly, like a less worthwhile customer.
- I wanted to provide a means by which the owner could be held accountable to whatever changes - of attitude or behavior - he decided to make.
That second reason is important. I have many interactions with businesses large and small, local to international, every day. Some of these are overwhelmingly positive; I make sure that those involved know this is the case, because everybody needs to know when they're doing well. Others are confoundingly negative, and I don't post about all of them. Often a bad experience is indicative only of poor employee training, or a single middle manager with a rotten attitude. I call the 1-800 number. I let the people above know what's going on below. It's how resolution is acheived when you have someone with oversight to implement change.
In the case of Personal Threads, my objection was to the attitude and behavior of the owner. That changes things quite a bit. Yes, there are exceptions, but in general, the owner is the top. The only entity to which the store owner is answerable is the public. I didn't at the time advocate that anyone else stop shopping at Personal Threads - my decision to do so was my own. I wanted to relate what prompted that decision, however - for the two reasons I listed above.
Reactions
Reception to the post on Ravelry was largely unfriendly; it varied from mildly uncomfortable with my having posted the letter before the owner had a chance to receive it and respond to plainly rude, defensive, and accusatory. That's life; I don't feel hurt by the response. The most constructive of the response suggested that I remove the group posting linking to my blog until the owner had a chance to respond to me. I agreed to do so, and said I would update the thread when I received a response or, if I received none, after one month. The owner made an appearance on the thread as well:
Transcript:
Someone was nice enough to bring to my attention that someone felt that something I did or said was inappropriate. I haven't had the opportunity to read what was written in the original post and I don't know what my infraction was.First, if I did offend someone, and obviously I did, I sincerely apologize. I truly do regret this incident, whatever it was. Being the older brother to five sisters I've always tried to be considerate of womens feelings and sensitivities.
Second, I find the support given to me and my store a treasure that I didn't know I had. Thank you all so very, very much!
Third, I haven't received the letter yet, but when it comes I will give it my full attention. As far as posts go, I have never quite understood posting something to the world before you say something to the person who offended you. My request to all my wonderful customers is that if anything happens in my store, either by me or my employees or my dog, please say something to me right away or it will become more of an issue. Letting things go just causes it to fester.
I believe the tone of this was intended to evoke the image of a sympathetic, customer-oriented man who would in fact make a real effort to reach out and make the necessary changes for me to be comfortable shopping in his store again - an outcome I very much wanted.
Wednesday, two days later than I intended to send my letter off, I finally put it in the mail. (I have to admit: I don't use postal mail for much, and it's really not in any workflow I have.) Off it went, however. I also received mail Wednesday - a certified mail receipt, as well as a plain letter in my mailbox. Both were from Place Law Office. (I initially mistook the certified mail receipt as a receipt for the letter in my mailbox, causing some confusion - I missed the box that was checked saying my item was being held at the post office. I didn't figure that out until after post office hours Saturday, and so I wasn't able to retrieve the certified mail until today.) The letter in my mailbox and the one I picked up from the post office were identical, and posted in entirety below (with my mailing address obfuscated). The transcript does not include the Cc block or stationery items from the top of the letter.
Transcript:
RE: The Personal Touch, Inc., Personal Threads Boutique & Mr. Joe LewisDear Ms. Tesla:
Please be advised that this office represents The Personal Touch Inc., Personal Threads Boutique and Mr. Joe Lewis.
I have carefully read and reviewed with Mr. Joe Lewis your letter of February 6, 2010. In addition, I have reviewed the publication of your letter on your internet "Blog" Sperari.com.
Your February 6, 2010 letter is libelous. It is clear that the letter was intended to defame, to shame, to disgrace and to injure the reputation (personal, professional, and business) and character of my client(s) The Personal Touch, Inc., Personal Threads Boutique, and Mr. Joe Lewis.
Demand is hereby made of you to immediately withdraw and "take down" your letter of February 6, 2010 from your controlled internet "Blog".
You are hereby on Notice to CEASE AND DESIST from any activity, of any nature, which would or could jeopardize the business interest(s) of my client(s) in any manner.
I trust that, in light of the foregoing, you will comply with the demands described herein, as well as your legal obligations.
You should be advised that these matters are regarded as harmful to my client(s), and I have been instructed to vigorously pursue all avenues of relief to protect and insure their rights.
I trust you will govern yourself accordingly.
Very truly yours,
//signature//
James R. Place
Before he had even received the physical letter, he got with his lawyer to draft a cease & desist letter. I have received no other correspondence from the store owner. There was an opportunity to recognize and acknowledge the interaction that left me so cold; to apologize; to promise improvement; and to conduct his business accordingly in the public eye. That bar is high, but it is the bar that I set for those with whom I do business. It is also apparently too high for the owner of Personal Threads. Instead, he has accused me of publishing a letter that is libelous; this accusation has no merit, as what I related in my previous post is true, however uncomfortable it might be for the store and its owner.
On Cease & Desist Letters
I feel very strongly about civil liberties. This should be no mystery to those who know me, and likely not to those who've read anything I've written pretty much anywhere. I believe that unfettered public discourse, to include dissent, is a healthy part of a free society. More than that, I believe it is fundamental to a free society.
Cease and desist letters are a funny thing - not quite a legal action in and of themselves, they send the implicit threat of legal action, often to stifle dissenting or unfavorable reportage and opinion. To a consumer, often just an "air of law" is enough to make them believe that they have done something wrong and must comply. To those who know better, the implicit threat is that regardless of the veracity of the accusation, a company will have more resources to invest in a legal process that can be both lengthy and costly. The image of a schoolyard bully is only too appropriate: intimidated by the looming shadow of someone bigger than them, most kids don't know what to do but hand over the lunch money.
Never in my wildest dreams would I have believed that the genuine impulses that led me to publicly post the letter I sent to Personal Threads would have inspired such a technique. Nor, had I been warned, would I have believed that a local yarn store - long celebrated as a warm, welcoming place for community, friendship, and shared knowledge - would be the type of entity to engage in such a tactic.
My belief is that nobody is so well-equipped to damage a business as those running it - by means of the ways in which they choose to conduct business. Face-to-face interaction is a particularly visible area of insight for customers. The way in which a business handles customer conflict is similarly open. I believe that Personal Threads has failed in these, what I consider to be two of the most important indicators of the quality of a business, and has done so in such an objectionable manner as to be personally unresolvable.
My Recommendation
Due to the response that I have received, I have changed my recommendation. I am no longer shopping at Personal Threads, and I further recommend that others follow suit. I will not do business with a company that conducts itself in the manner descibed above, and that holds both its customers and the truth in such contempt.
As a follow-up to my mini-rant about the DUI exception to the Constitution, it looks like the courts think there's a general "drug exception" to it, too (via Reason Hit & Run):
As I feared, the Court seems to be opening up a "drug exception" to the First Amendment, albeit limited (so far) to students in school. It's true that high school students do not have the same free speech rights as adults, but the Court has held that they do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." They have a right, for instance, to wear anti-war armbands. In that case, the Court held that student speech may be suppressed only if it will "materially and substantially disrupt the work and discipline of the school." A "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" or "an urgent wish to avoid the controversy which might result from the expression" is not enough to justify censorship. But fear of drugs apparently is.
An American citizen is an American citizen is an American citizen. High school kids should not be denied rights simply because they're forced to be in a classroom all day, and further, talking about a subject, however controversial, is a right that should not be infringed upon.
If you're looking for something to be pissed off about, look no further: The DUI Exception to the Constitution (DUI BLOG).
I'm not an apologist for people who drive while legitimately intoxicated and impaired. My uncle died in a car accident involving astronomical blood alcohol levels, and several of my family members have had their licenses revoked and even gone to jail for drunk driving, with levels of intoxication that should justify removing them from operating heavy (and dangerous!) machinery (like cars) in public places (like roads). But I don't care what your crime is - Miranda rights are not optional. Access to legal counsel should not be optional. Probable cause is there for a reason. The right to a jury trial should be damned near sacrosanct.
I don't drive drunk. I do sometimes go out and close a bar with friends, and limit myself to a drink or two early in the night so I can be well sure it's out of my system by the end. Based on the time of night I'm driving, I don't find it unlikely that I'll eventually be pulled over and checked. And I won't be cooperating with this legal farce; I won't submit to providing evidence that is both faulty and beyond question, I will demand to be informed of my rights, and I will demand presence of legal counsel.
I'll do that not because I'll be drunk, but because I give a shit about our Constitution.
Do any of you read those EULAs that pop up before you install software? I'll admit, I usually only read the first paragraph or two (unless it's a company that I'm aware has a history of including particularly onerous terms - hooray for Slashdot), and that for only about half of them.
EULAs usually really suck. Not only is the language so far removed from common English that it might as well be Martian a lot of the time, but there's a certain sense that, whether or not you have an issue with something in the EULA, you can't do a damned thing about it. Need that industry-leading software package for work, school, or to complete vital parts of a project that's important to you? Agree or pay the consequences. Did you already pay, and open the box? Click the disagree button, and you have a very fashionable, lightweight box to display in a curio cabinet - fantastic conversation starters at parties! "Yes, I paid $1299.00 for Adobe Creative Suite, but I didn't like the some of the terms of the EULA. But it's a pretty box, eh?" That nasty verbiage (because they would never use a word like "language" or "text") seems pretty damned ironclad, most of the time, the terms of the agreement more dense and solid than a metal baseball bat to the head.
But they don't have to be. Downloadable Mac software is particularly good about softening up the legalese, and avoiding most of the crap that makes us want to take a vow of techno-celibacy. First, Mac software tends to come with, at the very least, a time-limited demo. If you don't like the terms of the agreement, you didn't already pay for it. There's no box to open, nothing to return - just disagree.
Second, a lot of the best Mac software is written by small, passionate groups of people. Not being separated from the user by a thick barrier of lawyers and advisors, many can (and do) use much more human terms in their EULAs. Some even have a sense of humor - and thank [insert deity]! Compare this to your typical, software mega-corp EULA:
By accepting this agreement you promise not to be a scumbag software pirate robbing hard-working programmers of their livelihood. Sure, I have fun doing this, but if I'm going to keep it up I have to put groceries on the table, you know? You are welcome to install Jer's Novel Writer on any machines you own as an individual. Corporations, businesses, and what-not do not have that right. If you're part of some giant novel factory you need to pay for a copy for each machine.Heck, let's just be reasonable here. Jer's Software Hut (the Hut) is depending on people like you who know the right thing to do. You know the difference between sharing and stealing (sharing good, stealing bad). If you need to ask a lawyer if it's OK to do what you want to do, it probably isn't. Why bother? The lawyer will cost you more than dealing directly with the Hut anyway.
Just to make it clear, while you can buy a license to use this software till the cows come home, Jer's Software Hut owns the code. (In geek-speak, you own your copy of the binaries, while I own the source.) It would be silly to do anyway, but you're promising now that you won't try to reverse-engineer Jer's Novel Writer or incorporate any subset of it into some other product without express written permission from the Hut.
I will give you the right, however, to make as many copies of this agreement as you want, and modify it and use or sell it to your heart's content. If you publish it somewhere, I would appreciate credit. (I can see my EULA-writing career blossoming now.)
Heck, you're not reading this anyway. I don't know why I bother. I could put in that I have the rights to anything you create with this software, and you wouldn't notice. You've already clicked "accept" like a good little robot. I'm glad I went with the cheap lawyer.
(That takes the gold as my favorite EULA, by far. That's for Jer's Novel Writer, by the way - a fantastic little program that I use for far more than novel writing. I highly recommend it if you've got a Mac and any kind of thoughts you'd like to organize.)
And finally, when nasty legal language (pardon me, verbiage) is necessary, some software houses make sure their users know that they're responsive to EULA-related concerns. For example, The Omni Group includes this text at the top of all of their license agreements:
The document that follows this paragraph is a license agreement. Why do we need such a thing? Well, to be perfectly honest, our lawyers have told us that we need to protect ourselves. We at The Omni Group pride ourselves on our low-key style, but the global nature of the software business means that one lawsuit from one user in a far-flung jurisdiction could put us out of business. It also means that, without this agreement, we might not have protection from people who misuse our software. We do not want to bet our entire company on such possibilities, however unlikely, because we like doing what we do and want to continue to be able to do it. And, so, we require you to read and agree to this license. We think you will find it quite reasonable. Obviously, if you disagree, click "Disagree." But, don't just stop there. Let us know. Send some email to <info@omnigroup.com> telling us what you find unacceptable about our license agreement. We can't promise to change anything, but we will do our best to get back to you.
The straightforward, honest approach is encouraging. I don't have any issues with the rest of their EULA (which I actually did read in its entirety, due to that paragraph), but I'm glad to know that my concerns would not fall on deaf ears.
Now, I see these things as mostly typical of Mac culture - but I'll be the first to admit that I'm fairly out of touch with Windows and *nix software trends. I know that in my 10+ years using Windows software, I never read anything like either of the above examples, but I haven't read any Windows software EULAs in the last year and a half or so. As far as desktop *nix goes, I don't think I ever saw a EULA, other than the straight text from the GPL or BSD license. If any of you have similar (or other good) experiences on any platform, I'd love to hear about them.
Oh, and if you're a software developer - consider softening up that EULA, would you?
