Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 1 of 38 Page ID #:1215 1 MICHAEL K. GRACE (SBN 126737) [email protected] 2 PAMELA D. DEITCHLE (SBN 222649) 3 [email protected] 4 GRACE+GRACE LLP 444 South Flower Street, Suite 1650 5 Los Angeles, California 90071 6 Telephone: (213) 452-1220 7 Facsimile: (213) 452-1222 8 Attorneys for Defendants XenForo Limited 9 and Kier Darby 10 UNITED STATES DISTRICT COURT 11 FOR THE CENTRAL DISTRICT OF CALIFORNIA 12 WESTERN DIVISION 13 Grace LLP Grace 14 + vBULLETIN SOLUTIONS, INC., a ) Case No.: CV 10-8209-R (JEMx) Intellectual Property Intellectual 15 California corporation, ) Grace Los Angeles, CA 90071 CA Angeles, Los ) DECLARATION OF KIER DARBY IN 16 444 South444 Flower Suite Street, 1650 Plaintiff, ) SUPPORT OF DEFENDANTS’ 17 ) MOTION FOR SUMMARY 18 v. ) JUDGMENT ) 19 XENFORO LIMITED, an English ) 20 private limited company; and KIER ) 21 DARBY, a British citizen; and DOES 1- ) 10, inclusive, ) 22 ) 23 Defendants. ) 24 ) 25 26 27 28 DECLARATION OF KIER DARBY Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 2 of 38 Page ID #:1216 1 DECLARATION OF KIER DARBY 2 I, Kier Darby, declare as follows: 3 1. I have personal knowledge of the facts set forth in this declaration and, 4 if called upon to do so, I could and would testify competently from personal 5 knowledge as follows: 6 2. In 1998, I graduated with a B.A. Honors degree from the National 7 Centre of Computer Animation at Bournemouth University in the United 8 Kingdom. After university, I started a computer graphics animation company, 9 Alternate Perspective 3D Ltd. (“AP3D”) with two fellow graduates. Our clients 10 included FIFA, AMD, and Ferrero Kinder. 11 3. In 2000, while developing the AP3D website and working on my own 12 personal projects, I became an active member of an online community of persons 13 who develop third-party add-ons, which provide additional functionality for the Grace LLP Grace 14 + Internet forum software “vBulletin”. The vBulletin Internet forum software was Intellectual Property Intellectual 15 developed by Jelsoft Enterprises Limited (“Jelsoft”), a private limited company in Grace Los Angeles, CA 90071 CA Angeles, Los 16 the UK founded by James E. Limm and John Percival. 444 South444 Flower Suite Street, 1650 17 4. Like the majority of other Internet forum software applications, of 18 which dozens if not hundreds are available, vBulletin is written using the “PHP” 19 programming language. I made use of the programming training I had received at 20 university learn how to program in PHP. 21 5. In early 2001, John Percival, a co-founder, lead developer and project 22 manager of vBulletin, took notice of my vBulletin add-on work. He offered me a 23 job as a freelance developer responsible for integrating my add-ons into the core 24 code for the next major release of vBulletin: vBulletin 2. I accepted his offer and 25 joined the Jelsoft team that already included Michael Sullivan and Freddie 26 Bingham. At the time, we all worked from our respective homes using our own 27 computer equipment, because Jelsoft did not have any physical offices. 28 1 DECLARATION OF KIER DARBY Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 3 of 38 Page ID #:1217 1 6. After the release of vBulletin 2 in 2002, Jelsoft started development of 2 vBulletin version 3. The nature of vBulletin development was to continually add 3 new features and improvements to the existing code. vBulletin 2 included most of 4 the code and features from vBulletin 1, and vBulletin 3 would include most of the 5 code and features from both vBulletin 1 and 2. 6 7. In 2003, Percival resigned from the vBulletin development team, and I 7 was invited to take over the jobs of lead developer and product manager of 8 vBulletin on a freelance basis, which I accepted. 9 8. As the lead developer and product manager, I had overall day-to-day 10 control over vBulletin software development. I also assumed responsibility for 11 many of the day-to-day tasks of managing the vBulletin business and had full 12 access to all of Jelsoft’s computer systems, including servers hosting vBulletin’s 13 websites, sales, license and customer data. I also had full access to the complete Grace LLP Grace 14 + history of all vBulletin software development. Intellectual Property Intellectual 15 9. By the Spring of 2006, Jelsoft had become very successful due to the Grace Los Angeles, CA 90071 CA Angeles, Los 16 popularity of the vBulletin software. On my recommendation, Jelsoft leased office 444 South444 Flower Suite Street, 1650 17 space in Pangbourne, Berkshire – approximately two miles from my home – to 18 serve as Jelsoft’s business and software development headquarters. 19 10. In addition, Michael Sullivan, Ashley Busby, Scott MacVicar, and I, as 20 well as a number of other UK-based freelancers, became full-time, permanent 21 employees working out of the new Jelsoft office. I was entirely satisfied with the 22 compensation that I received both as a freelancer, and also as a full-time employee 23 of Jelsoft. True and correct copies of my employment agreement and Restrictive 24 Covenant Agreement, both dated April 6, 2006, are attached hereto as Exhibit A 25 and Exhibit B, respectively. 26 11. When I became an employee of Jelsoft in April 2006, we had been 27 working on vBulletin 3.6. I believed that the architecture of vBulletin was 28 becoming outdated and cumbersome to maintain, due to the fact that it still 2 DECLARATION OF KIER DARBY Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 4 of 38 Page ID #:1218 1 included large amounts of older code from older versions of vBulletin. The 2 development process was reaching the point at which almost as much effort was 3 being expended maintaining the old code and correcting errors therein as was 4 being spent developing new features. 5 12. With considerable input from the development team, I decided that 6 3.6 would be the final version to use the old code, and that the next major release of 7 vBulletin (“vBulletin 4”) would consist of all new code, employing new “object 8 oriented” programming techniques that had only become available to PHP after 9 vBulletin 3 was released. I understood that this change would allow for faster, more 10 robust future development. We estimated that vBulletin 4 would require 11 approximately two years of design and development work before commercial 12 release. We referred to vBulletin 4 as a “rewrite”, as we intended to implement all 13 of the existing vBulletin 3 features using brand new code. Grace LLP Grace 14 + 13. We decided to make use of an approach called “model-view- Intellectual Property Intellectual 15 controller” (“MVC”) for the new PHP code, and “semantic XHTML” for the Grace Los Angeles, CA 90071 CA Angeles, Los 16 vBulletin 4 user interface. Both MVC and semantic XHTML are widely-known, 444 South444 Flower Suite Street, 1650 17 industry-standard patterns, consistent with modern programming practices and 18 customer expectations. Both are subject to the interpretation of the individual 19 developer as to the manner in which they are implemented, in the same way as a 20 determination to make a cake does not dictate the ingredients or method. 21 14. Many products and software frameworks implement their own 22 versions of MVC in PHP, and hundreds of thousands, if not millions of websites 23 and web software applications employ semantic HTML and XHTML, including 24 two of vBulletin’s major competitors, Invision Power Board and phpBB, both of 25 which released versions of their forum software using semantic XHTML in late 26 2007 to early 2008. 27 15. After the release of vBulletin 3.6 in 2006, Jelsoft was focused on the 28 development of two add-on products for vBulletin (“Blog” and “Project Tools”). 3 DECLARATION OF KIER DARBY Case 2:10-cv-08209-R -JEM Document 80-1 Filed 10/09/11 Page 5 of 38 Page ID #:1219 1 During this period, Limm suddenly informed me that he wanted to add “social 2 networking” features to vBulletin as soon as possible. This was the first time that 3 Limm had ever instructed the development team to follow a specific development 4 path. I told Limm that development of these features would delay the start of work 5 on vBulletin 4, but he was insistent that the social networking features must be 6 developed immediately. Limm’s requirements for the features kept expanding, and 7 the aging vBulletin 3 architecture hampered the development process. Eventually, 8 we decided that the new features could only be achieved with a new vBulletin 9 version, and as a result we began working on vBulletin 3.7. 10 16. In mid-2007, while we were developing vBulletin 3.7, Limm informed 11 me that he and Percival had sold their Jelsoft shares to IB Services Limited, an 12 English affiliate of an American company, Internet Brands, Inc. (“Internet 13 Brands”). I had been unaware that Limm was interested in selling Jelsoft, and I had Grace LLP Grace 14 + never met or had any contact with anyone from Internet Brands. Intellectual Property Intellectual 15 17. Days before the sale of Jelsoft to Internet Brands completed, Ashley Grace Los Angeles, CA 90071 CA Angeles, Los 16 Busby arranged for generous bonuses to be paid to all Jelsoft staff.