IC and Massdrop: the Halo Switch Disagreement

[ohaimark]

As some of you may know, I have been working with Input Club on a few writing projects as a rather intermittent unpaid intern. That places me in a unique position to acquire a bit of additional information. With that obligatory disclaimer out of the way, I will provide an update and some personal speculation regarding the disagreement between Massdrop and Input Club over the Halo switch line.

Brief: Input Club and Massdrop disagree on a number of points regarding Halo switches. The resulting situation is an inconvenience for the Whitefox Kickstarter campaign and all involved parties.

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Input Club's initial claims: https://www.kickstarter.com/projects/le ... ts/1964996

Relevant text: "... when we tried to order switches for the WhiteFox/NightFox, Massdrop would not let us source them. They then claimed to own the “Halo” name and asked us to give up the license-back altogether, so we would essentially lose all access to our own invention."
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Massdrop's reply: https://www.massdrop.com/talk/2342/mass ... tch-update

Relevant information: Massdrop makes contrary claims. I strongly recommend reading the whole thing so that you understand Massdrop's side of things.
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I:C's reply to the Massdrop statement: https://input.club/official-halo-switch-statement/

Relevant information: I:C offers a point by point rebuttal of Massdrop claims. Once again, I recommend reading the whole thing. The key information on their page is a small segment of the purported contract, which I will include here.

BEGINNING –

Sec. 3(c)(ii)(2)(c)

Limited License Back. Massdrop does hereby grant Designer a limited, non-exclusive and revocable license to use Massdrop’s Joint Inventions solely to the extent necessary for Designer to (i) perform Designer’s obligations under this Agreement; and (ii) to request manufacture of, and purchase, Products solely from the manufacturer designated in Exhibit C, and to sell products incorporating such Products to end users. Input Club (itself or with or through other entities) agrees to not distribute or sell such Products to resellers or distributors.

END

I am conveying the following messages from Input Club:

1. Massdrop has been notified that it is in breach of contract.
2. The license, at the time of this writing, has not been revoked.
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My personal speculations (which are not endorsed by Input Club, and only allude to direct answers from Input Club in list items 1 and 3):

1. The word “request” probably refers to the manufacturer of Halo switches, not Massdrop. I speculate that Massdrop cannot, therefore, legally deny Halo switches to I:C. It may be in a separate clause behind a semicolon (ii) for that reason. I:C seems to have asked Massdrop to tell the manufacturer it was okay to produce Halo switches for I:C. Massdrop may have told the manufacturer that it wasn’t okay instead, which could be in direct violation of the snippet above.

2. “The license, at the time of this writing, has not been revoked.” This might mean that the license cannot be revoked at will, or without conditions being met. I:C would not confirm or deny that speculative point when posed with direct questions for legal reasons. The general public could have arrived at this hypothesis given the statements above, so I consider this (item 2) worth the rather small risk I am shouldering by posting my thoughts.

3. We (the public, of which I am a part in this situation as information is being withheld from me) might get more information if things proceed to court.
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My opinion on the situation:

I'm not fond of this sort of back and forthing, but I think it was the only decent move that Input Club could make given what I know about the situation. If they announced out of the blue that there would be delays and changes, without definitive reason, their brand would have suffered. If they waited to announce a different agreement with Massdrop, assuming negotiations went well, there still would have been damage. I:C chose the least awful option in a no win scenario, in my opinion.

It would have been better, however, if the public outcry had been anticipated and IC had waited to include the items that I publicized above in their initial post. I don't think they expected this to blow up -- it was buried in plain text inside a Kickstarter update without any particular call to action besides a hurt tone.

I would like to emphasize again that my information is incomplete. This is the most objective and informative report I can offer on the subject. Please draw your own conclusions about the situation and discuss them below. I have confidence that the keyboard community can handle this peaceably.

New information may invalidate my personal speculations. If that occurs, I will update this topic to reflect such invalidations.
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[ohaimark]

I mixed up Massdrop and Input Club in the first sentence.

TO CLARIFY: I am working with Input Club as an unpaid intern.

[chuckdee]

Note that they released one small section of a larger contract. Contract law does not work that way. if it did and was that clear cut, they would have filed claim already rather than taking this route. And the bullying is present even in the statement. I'm not taking either side, as we'll never get enough information nor, more importantly have the expertise to truly judge. But this could have been handled and could still be handled behind the scenes like real businesses handle them.

[pomk]

Note that they released one small section of a larger contract. Contract law does not work that way. if it did and was that clear cut, they would have filed claim already rather than taking this route. And the bullying is present even in the statement. I'm not taking either side, as we'll never get enough information nor, more importantly have the expertise to truly judge. But this could have been handled and could still be handled behind the scenes like real businesses handle them.

That is not necessarily true. They have a contract with their KS customers and are oblidged to share information about delays. A court approach would have definitely caused them to miss all deadlines.

edit: if they had the capital to go to court, they should have maybe kept the name 'massdrop' from their initial update.

[chuckdee]

Note that they released one small section of a larger contract. Contract law does not work that way. if it did and was that clear cut, they would have filed claim already rather than taking this route. And the bullying is present even in the statement. I'm not taking either side, as we'll never get enough information nor, more importantly have the expertise to truly judge. But this could have been handled and could still be handled behind the scenes like real businesses handle them.

That is not necessarily true. They have a contract with their KS customers and are oblidged to share information about delays. A court approach would have definitely caused them to miss all deadlines.

edit: if they had the capital to go to court, they should have maybe kept the name 'massdrop' from their initial update.

You can share information about delays but not attempt to try the situation in the court of public opinion. Especially if you can make and tool a switch in a short period of time with the minimal change to timelines as they said in the Kickstarter update.

[matt3o]

if IC has been bullied as they claim, I don't see why they shouldn't react in any ways they see fit. It is known that big companies move only when their image in publicly compromised, not when you ask politely. If IC is just a spoiled brat, court will settle it.

[webwit]

I've warned people many times about Massdrop's legal yet illegal fine print, and that because of this it was clearly a bad company you shouldn't do business with, to which most people replied I was a whiner and they just wanted to go lalala I don't hear you because I want my shiny keycaps.

Going lalala so you can get your pretty keycaps is one thing. To invent a switch and then give them the patent and sign their shit fine print contract, is signing up to be shot in the foot. I'm not sure I feel pity for such idiocy. Well maybe a little. But still IC values "trust and transparency" yet signed a contract with a company which values hiring lawyers instead, to craft fine print aimed at fucking with your rights as soon as things go astray. If you ignore the sign "beware of the dog" you shouldn't complain when you get bitten.

[chuckdee]

Massdrop's legal yet illegal fine print

I've never heard this warning. What fine print are we discussing here?

[ohaimark]

The legal fine print actually favors I:C, I've heard, so it was Massdrop's screw up.

As for Massdrop being bad legally, yup. There's a term in their customer TOS that is unenforceable, if not illegal. I warned them about it and it wasn't changed when I last checked.

[ohaimark]

https://medium.com/@jlkoepke/we-can-cha ... 2409e2d0f1

They had an amend at will, without notification, section when I last checked.

[chuckdee]

The legal fine print actually favors I:C, I've heard, so it was Massdrop's screw up.

As for Massdrop being bad legally, yup. There's a term in their customer TOS that is unenforceable, if not illegal. I warned them about it and it wasn't changed when I last checked.

You've heard? From whom?

[Daniel Beardsmore]

This is Deskthority, the land of unsubstantiated claims — what on earth did you expect??

[ohaimark]

I:C, who I trust more than Massdrop. I only said I heard it, not that it was verifiably the case.

When all of this gets sorted (which may take a good long while) I'll welcome the outcome. If I misplaced my trust, I am prepared to have it rubbed in my face. If my guesses are right, however, I will be smug and shameless about it.

[chuckdee]

I:C, who I trust more than Massdrop. I only said I heard it, not that it was verifiably the case.

When all of this gets sorted (which may take a good long while) I'll welcome the outcome. If I misplaced my trust, I am prepared to have it rubbed in my face. If my guesses are right, however, I will be smug and shameless about it.

So you heard from someone who has a vested interest in being right? Who possibly signed an agreement that would put them in this position, when they had lawyers representing them? It has nothing to do with trust. It has to do with the agreement. And what has been released that they said would make others take their side is woefully inadequate at this point. Given that release, I'm not sure that I would trust their interpretation, personally...

[webwit]

And... there they are, the Defenders of Bad Company Because They Bought a Product There. Ready to fight anyone who criticize their darling.

Search for "massdrop tos", scroll to the bottom (naturally), it takes 5 secs.

MODIFICATION OF TERMS OF SERVICE

You acknowledge and agree that Massdrop may, in its sole discretion, modify, add or remove any portion of these Terms of Service at any time and in any manner, including the terms of Massdrop membership, by posting revised Terms of Service on the Site. You may not amend or modify these Terms of Service under any circumstances. The current version of these Terms of Service is available at http://www.massdrop.com/terms. It is your responsibility to check periodically for any changes we make to the Terms of Service. Your continued use of this Site after any changes to the Terms of Service means you accept the changes.

If you sit down as a company to craft your TOS, and then insert that, then it's a premeditated Bad Company.

[infodroid]

If you sit down as a company to craft your TOS, and then insert that, then it's a premeditated Bad Company.

Let's stop using eBay as well, because their User Agreement is pretty similar:

We may amend this User Agreement at any time by posting the amended terms on http://www.eBay.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the eBay Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an eBay representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.

and what about Signature Plastics?

Signature Plastics reserves the right to change, modify, add or remove portions of these Terms and Conditions in its sole discretion at any time and without prior notice. Please check these Terms and Conditions periodically for any modifications. Your continued use of the Site following the posting of any changes will mean that you have accepted and agreed to the changes.

[Slom]

These are really easy to distinguish:

If you sit down as a company to craft your TOS, and then insert that, then it's a premeditated Bad Company.

Let's stop using eBay as well, because their User Agreement is pretty similar:

We may amend this User Agreement at any time by posting the amended terms on http://www.eBay.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the eBay Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an eBay representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.

We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the eBay Message Center and/or by email.

and what about Signature Plastics?

Signature Plastics reserves the right to change, modify, add or remove portions of these Terms and Conditions in its sole discretion at any time and without prior notice. Please check these Terms and Conditions periodically for any modifications. Your continued use of the Site following the posting of any changes will mean that you have accepted and agreed to the changes.

These are different in scope it seems:

Signature Plastics LLC website terms and conditions
These terms and conditions (“Terms and Conditions”) apply to the use of the Signature Plastics websites [...]

Other Terms and Conditions
Additional terms and conditions may apply to purchases of goods or services, [...]

as compared to

Terms of Service
These Terms and Conditions of Service ("Terms of Service") govern your membership on Massdrop.com and its associated mobile sites (the "Massdrop Sites" or the "Sites") and your purchases and use of products and services available through the Massdrop Sites.

[webwit]

Let's stop using eBay as well, because their User Agreement is pretty similar:

and what about Signature Plastics?

It's a red herring fallacy: two wrongs make a right. It is not relevant to the discussion or Massdrop's wrongdoing.

[chuckdee]

And... there they are, the Defenders of Bad Company Because They Bought a Product There. Ready to fight anyone who criticize their darling.

I just asked a question. I do remember this now, and if its unenforceable, then aren't the terms of your labeling them a bad company pretty much disingenuous? If it ever comes up, it's unenforceable, right? And considering the fact that they haven't even updated the TOS since 2013, and it seems pretty boilerplate ... the risk seems pretty theoretical than actual.

[webwit]

Your premise is that if a company has a term in small print which says "I hereby sell my soul to the devil", it is not a bad company, because you can fight it in court?

[andrewjoy]

That is not necessarily true. They have a contract with their KS customers and are oblidged to share information about delays

Kickstarter does not have customers it has "backers"

Kickstarter has no contracts between backers and projects. You give the project money and depending on how much you give you get a "reward" when the project is completed. If it fails you have no legal leg to stand on to get your money back. Its a donation simple as that, no different that rich people who give to a museum or gallery to get there name up on the wall, there is no contract.

Never back anything on kickstarter or any other crowd funding platform unless you are willing to lose the money.

[__red__]

Your premise is that if a company has a term in small print which says "I hereby sell my soul to the devil", it is not a bad company, because you can fight it in court?

Webwit, this may be a cultural thing. In the UK for example (and maybe .nl?) there is the concept of an 'unfair contract'.

I do not believe that exists (or at least in the same way) in the USA.

[andrewjoy]

No such thing as a " unfair contract".

In situations like this its important to remember the 17th and 27th rules of acquisition

A contract is a contract is a contract

There's nothing more dangerous than an honest businessman.

[webwit]

I just wonder what drives people to jump into defense of bad companies, and actively fight any criticism with silly logical fallacies, pulling arguments out of their ass.

[pomk]

Note that they released one small section of a larger contract. Contract law does not work that way. if it did and was that clear cut, they would have filed claim already rather than taking this route. And the bullying is present even in the statement. I'm not taking either side, as we'll never get enough information nor, more importantly have the expertise to truly judge. But this could have been handled and could still be handled behind the scenes like real businesses handle them.

That is not necessarily true. They have a contract with their KS customers and are oblidged to share information about delays. A court approach would have definitely caused them to miss all deadlines.

edit: if they had the capital to go to court, they should have maybe kept the name 'massdrop' from their initial update.

You can share information about delays but not attempt to try the situation in the court of public opinion. Especially if you can make and tool a switch in a short period of time with the minimal change to timelines as they said in the Kickstarter update.

Yes, you are correct in that statement.

I guess we both agree that they really had to engineer a new switch because of this ordeal should they wish to fulfill their commitment to their KS backers.

Now, how should they continue with MD? I came up with three options that they at I:C probably thought of:
1. Just let it slide, say nothing to anyone.
2. Go to court! .. but for what? They already have at this point funded an improved switch and by winning they would just gain access to their original, outdated, design. They might also gain some capital and could possibly publicly shame MD on its practices. By going to court, they have a lot more to lose though. Should they lose, they might go bankrupt and ruin the rest of their lives. If your lawyer said that there is a 5% chance that we will blow this (because of some undisclosed parts of the contract, or maybe because the US justice systems does not have 100% rate of being correct in the first place) would you risk your entire life on it? I would not, at least not for some outdated switch designs.
3. Go open source on your disagreement with MD. This way you can bring to light how from their point of view MD people are a bunch of assholes. Pros: you will feel better after venting some steam (compared to option 1). Cons: some people will not like you for it.

I do not think that this will go to court at all. I:C has their personal lives to risk and unless they are rolling in cash, no sane person would. MD will not go to court, as it has now everything that it wanted in the first place, an exclusive switch. (though MD might sue for patent infringement in the future, who knows)

As for my personal opinion, I really like that they did go for option 3. It is nice to see how petty the people at MD really are. For a couple switches they decided to ruin the only meaningful non keycap relationship that they had with the mk community.

[Elrick]

I just wonder what drives people to jump into defense of bad companies, and actively fight any criticism with silly logical fallacies, pulling arguments out of their ass.

That's the thing I've consistently seen EVERYWHERE, even at home.

When I grew up as a child all we did was to be extremely suspicious of everything connected with Government and Business, both were/are as Evil as each other. Now we have the complete opposite, the immediate trust and obedience of All Corporate structures and of course Government as well.

Looks like we who are much older know the real truth of what both of these regimes are like and what they could do to everyone on this planet but all the Millennials seem lost in LaLa land, too busy worshiping Apple, Toys'R'Us, Nike, Samsung, Sony, Amazon and Google. They have won in completely mesmerizing them with lies and fantasies and in essence winning them over to protecting their profits.

It's seems not one young person wants to know what the REAL world is like nor how to read the truth from all the fake propaganda being tossed their way. They have become completely controlled and manipulated from birth, hence we are now entering this really terrifying age of complete compliance and no questioning whatsoever of the establishment.

[chuckdee]

Your premise is that if a company has a term in small print which says "I hereby sell my soul to the devil", it is not a bad company, because you can fight it in court?

No. I think I was quite clear. And that's not the premise in question in this discussion, so I won't even bother to refute the false equivalence in that statement.

As for my personal opinion, I really like that they did go for option 3. It is nice to see how petty the people at MD really are. For a couple switches they decided to ruin the only meaningful non keycap relationship that they had with the mk community.

All information was not released (and probably will never be released), so we don't have enough information to know who is is the wrong.

[webwit]

Your premise is that if a company has a term in small print which says "I hereby sell my soul to the devil", it is not a bad company, because you can fight it in court?

No. I think I was quite clear. And that's not the premise in question in this discussion, so I won't even bother to refute the false equivalence in that statement.

How convenient for you to dismiss the argument that criticizes your premise, now you don't need to have a counter-argument. I guess you don't have one.

[chuckdee]

Your premise is that if a company has a term in small print which says "I hereby sell my soul to the devil", it is not a bad company, because you can fight it in court?

No. I think I was quite clear. And that's not the premise in question in this discussion, so I won't even bother to refute the false equivalence in that statement.

How convenient for you to dismiss the argument that criticizes your premise, now you don't need to have a counter-argument. I guess you don't have one.

I'm not dismissing anything. I'm just not going off-topic. You can continue to do whatever you want. If you want to make a topic to discuss such, I might participate. Or I might not. But it won't be in this discussion about a specific point.

[webwit]

How convenient for you.