SUMMARY: GIBSON GUITAR CORPORATION vs. D.N. CROWE
On April 10, 1995, Gibson Guitar Corporation -- the largest manufacturer and distributor of musical instruments in the United States -- declared war on a single disabled (by Multiple Personality Disorder) software engineer, D.N. "Lynx" Crowe, who had been working for over two years on Gibson-funded projects. On that day, Lynx was told in writing his services were no longer required and was refused his pay for his previous two weeks of work. The next day, Gibson filed suit against him in federal court, even though their corporate attorney told them they had no case. Essentially, Gibson told Lynx not to do any more work on the project and then sued him the next day because he was not doing any more work on the project, and asked him to repay every penny he had received for the previous two years.
Lynx is not some run-of-the-mill programmer, as his resume attests. Among other things, Lynx had written the software for the voice cards that make the Oberheim OB-Mx synthesizer work. This instrument (which is actually a watered-down version of the Buchla 300, which Don Buchla and Lynx had created years earlier) garnered glowing reviews, such as the review by Jim Aikin in the August 1994 issue of Keyboard Magazine. The voice card is such an important and unique feature in the OB-Mx that Gibson at one time devoted an entire Web page to describing it. (That page has since been taken down.) The instrument will not work without a voice card. The voice card will not work without Lynx Crowe's software.
Gibson asked the court to grant them, not Lynx, copyright ownership of the software that Lynx wrote and that Gibson had sold internationally for over a year in the OB-Mx synthesizer, and also for copyright ownership of the uncompleted code for the ZIPI real-time network hub Lynx had been working on. They also alleged that Lynx was in breach of contract for failing to complete the ZIPI project.
So what? Well: 1) Gibson's allegations were totally untrue; and 2) The CEO of Gibson, Henry Juszkiewicz, knew they were untrue when he ordered his lawyers to file the suit Gibson pressed in order to beat Lynx into submission and steal his intellectual property, his sanity and nearly six years of his life.
How can I make such a sweeping accusation? The evidence before the court shows:
1. The copyright law is very clear and straightforward. The creator of intellectual property (such as software) is the legal owner of that copyright unless he is an employee working for wages. If he is an independent contractor, he owns the copyright in his own work -- whether he is paid hourly, salaried, etc. -- unless there is a written work-for-hire contract.
2. Gibson corporate counsel Lucian Wayne Beavers wrote a letter to Juszkiewicz just a couple of days before the suit was filed, in which he admits that Lynx was an independent contractor, that Gibson had no written contract with him, and that Gibson can't own the copyrights in question.
3. In Gibson's answer to Lynx's counterclaim (Paragraphs 9 and 11), they admitted to the court that Lynx was an independent contractor, and also that they didn't have, and never have had, any written, signed agreement with Lynx (Paragraph 4, where they admit to Lynx's statements in Counterclaim Paragraphs 19, 20, 25, 27 and 28).
4. Because there was no contract, Lynx could not be in breach of it. Lynx was told, in writing, that Gibson Western Innovation Zone Labs no longer needed his services as of 4/10/95. No law anywhere says you have to do work for a company that tells you, in writing, they don't want you to do any more work.
5. Also, in December 1995, Gibson sued six other G-WIZ employees and contractors because they continued to work on the ZIPI project after Gibson told them to stop. (State of Tennessee 20th Judicial District, File No. 95C4393.)
6. Lynx's last invoice -- for work done in March/April 1995 at Juszkiewicz' specific request -- remained unpaid until the settlement was finalized in February 2001, despite California law which states that when a worker is fired, the employer must give him his final check within three business days of the firing or pay interest on every day it is late. The $2,430.00 at issue was less than a minute's income to Gibson, but was two months' rent to Lynx. He ended up being evicted from his apartment.
Thus, Gibson's two complaints were absurd on their very face. Beavers' letter to Juszkiewicz dated April 8, 1995 analyzed the merits of legal action against Lynx. He admitted that Lynx probably did own the copyright and outlined three possible paths: reconstructing new code in a "clean room" environment, negotiating with Lynx, or filing a preemptive lawsuit. Beavers saw "some psychological advantage to being the aggressor" and recommended filing the lawsuit as a bargaining technique, to show Lynx that Gibson meant business. Juszkiewicz ordered the suit to be filed.
This was perhaps the most serious blow of all. For while Lynx's Multiple Personality Disorder (MPD) never interfered with his talents as a computer engineer, it leaves him subject to severe emotional damages from matters most people could just brush off. Gibson always knew Lynx had MPD and had made adjustments -- such as flex time -- for the disability in accordance with the Americans with Disabilities Act (ADA). Lynx's therapist confirmed that Gibson's suit cost Lynx (all of the dozens of personalities) damage that will take years to repair and, indeed, some of the damage done by Gibson may be permanent.
From April to November of 1995, Lynx tried unsuccessfully to find a lawyer to defend him from Gibson's specious lawsuit. Regardless of the merits of Lynx's case, none of the dozen law firms Lynx approached felt they could afford to challenge a rich corporation like Gibson. Finally, with resources strained to the limit, Lynx chanced upon San Francisco attorney Christopher Dolan, who agreed to take the case because he was morally outraged at what Gibson was doing.
In December of 1995, Dolan filed Lynx's response and counterclaim to Gibson's original suit. This document not only refuted the arguments of Gibson's case, it charged Gibson with deliberately infringing on Lynx's copyright in the OB-Mx software, seeking to injure Lynx professionally, and knowingly inflicting financial and emotional damage on him. Lynx's counterclaim sought upwards of $7,000,000 damages from Gibson for all their bad faith dealing.
In July 1998, summary judgment was entered. Lynx was awarded ownership of the OB-Mx and ZIPI software (but Gibson retained the trademarked name ZIPI). Gibson received permission to amend their complaint to contain the affirmative defense of "implied license" -- meaning that, while they didn't own the sopftware, they had a right to use it for their own purposes for no additinal payment.
With a trial date finally having been set for September of 2000, Gibson finally met with Mary and Lynx for a serious settlement conference in June of 2000. The terms of the settlement were agreed upon, and everything was to be finalized no later than July 20. Nevertheless, Gibson managed to stall the proceedings more than six months, and the settlement didn't go into effect until February 2001. Click here to read about the settlement. Part of the settlement involved a public statement of regret for the harm that Gibson's actions caused Lynx. In all its history under Henry Juszkiewicz, Gibson has never before apologized for any of its litigious actions.
For a long time, various aspects of these events puzzled us. Why was there so little communication between Keith McMillen and Henry Juszkiewicz? Why did these men, supposedly partners, keep so many secrets from one another? What made Henry so desperate to obtain Keith's failed technology and spurn Lynx's? With the events at OpCode, Mary Mason has finally pieced together the entire picture, and it's one of two men each trying to bamboozle the other. We've just learned that Gibson is pushing their new instrument connection standard called GMICS. Before you invest heavily in GMICS equipment, we suggest you read the details in Mary Mason's essay, "Beware The Technohick Takeover!" It might lead you to wonder whether you want to buy something from a company that's so technologically inept.
Lynx and Mary are currently looking for venture capital so they can finish "Kitten" (which is the new name for the incredibly versatile protocol Lynx has designed). If you know of anyone who wants to invest in new technology, please get them in touch with Missing Lynx Systems.
Thank you for support.
How can Gibson be prevented from pulling these shananigans on other people and killing other valuable technologies? The main weapon against them is publicity. People must learn not to do business with pirates like Henry Juszkiewicz in the first place -- and if it's too late to avoid that, know that he is not invincible, that he can be beaten. Tell your friends about this case; forward copies of the files or invite them to browse this Web site for themselves by sending them an invitation.
Thank you for reading this. I hope you never find yourself at the mercy of a corporate bully.
For those who like to take things in the order they happened, you can review the case documents in the following chronological order:
Mary Mason letter to Keith McMillen (3/18/94)
Lynx Crowe letter to Henry Juszkiewicz (3/27/95)
Paul Warner letter to Henry Juszkiewicz (4/5/95)
Lucian Wayne Beavers letter to Henry Juszkiewicz (4/8/95)
Chris Muir note to Lynx Crowe (4/10/95)
Henry Juszkiewicz letter to Paul Warner (4/11/95)
Gibson's filed complaint against Lynx Crowe (4/11/95)
Lynx Crowe's reply and counterclaim against Gibson (12/22/95)
Gibson's reply to Lynx's counterclaim (2/9/96)
Gibson's apology and admission of no claims on rights (1/17/01)
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