Behringer responds to reports, defends reverse engineering

MUSIC TRIBE and Behringer responded early today to CDM’s request for comment, following revelations that company had targeted a Chinese website and Dave Smith Instruments with threatened or real legal action over criticism of the company’s business practices.

Uli Behringer, company CEO and founder of holding company MUSIC TRIBE, shared the following, which I’ve included in its entirety. (He also shared the same message to their Facebook group.)

In the message, Behringer doubles down on the claim that comments posted by a Dave Smith Instruments employee to the Gearslutz forum, as well as by Chinese news site Midifan, are false and constitute illegal defamation. He also defends the practice of what he describes as “reverse engineering” in their product development process.

Here’s their side of the story, as represented to us:

Hi Peter,

Thank you for reaching out and giving us an opportunity to respond in detail which we appreciate.

This is actually a first in our history with CDM and we welcome the change. As usual there are always two sides to any story and in the spirit of transparency and fairness we believe both sides should be heard. Since much revolves around “Defamation,” please find a quick Wiki link.

https://en.wikipedia.org/wiki/Defamation

Chinese Media Case
Allow me to first comment on the previous story related to the Chinese Media case. While you had claimed to have reached out to us for comments, there is no such record in any of our systems. You only contacted me and Michael Lapke last weekend after the news was already a week old.

Let me start by saying that we don’t have any problem with people criticizing us. In fact we appreciate constructive criticism as that’s the only way to learn. What we have a problem with is when our employees are being called highly offensive and insulting names by media outlets. Unfortunately your article did not properly reflect the full content and background of the language used, which in the Chinese culture has a highly different sensitivity and legality.

This was not only raised by our Chinese colleagues but also customers of this media site who felt compelled to contact us. Also publishing pictures of a cancer-fighting colleague in a hospital bed has caused deep concerns among our people.

We sent the owner of the publishing site a Cease-and-Desist letter, but he was never sued as wrongly reported. We have since spoken with the publisher and they have promised to remove the offensive language and refrain from posting such slur in the future. We consider this case to be resolved and he also has standing invitation to visit us.

Since our employee welfare and integrity has been severely questioned by this Chinese magazine and whose accusations have later been repeated by CDM and other publishers without fact checking, I like to post a link to a local job portal that may give you a different impression. We also invited you Peter (and everyone else) to visit us, both in Manchester and Zhongshan.

We are very proud that we have been ranked Zhongshan’s No. 1 employer by the leading and independent job site (http://www.jobui.com/company/35895/)

Our factory MUSIC Tribe City is ranked:

· No 1 most popular electronics company
· No 1 most popular recruiting company
· No 1 most employee caring company

I am very proud of our local leaders who go out of their way to make a difference for our employees. If you like to learn more about our MUSIC Tribe City here is a video.

DSI Case

Some time ago an employee of DSI had posted incorrect and slanderous statements about our company on multiple forums. We put both the employee as well as DSI on notice and received a signed Cease-and-Desist letter from the employee where he assured us that he would refrain from such future comments. I have attached a copy of the undertaking of the employee to stop making such comments. In the reply of DSI, the company stated that it has instructed all employees to stop making any false or derogatory statements against us.

It is important to understand that this is not a legal action against a mere individual but a representative of a competitor. Any such false and disparaging comments made by DSI’s employee, are damaging and inappropriate in a highly competitive market such as ours. Unfortunately and despite the signed declaration, the individual working for DSI chose to continue to make such claims and hence we were forced to take legal action. If the employee had stopped his actions as agreed, the case would have never been field. While I am not a lawyer, I can only assume that including 20 “John Does” is part of a standard legal procedure to include other potential individuals related to the company. For clarity purposes, this case has nothing to with any particular forum or individuals other than those related to DSI.

Misconception around IP

Allow me to post an article about IP (Intellectual Property) as this is an important one to us. Especially because we have been accused of not honoring the IP of other manufacturers. I have heard and read over the years many accounts of lawsuits, judgments and sanctions against our company that are frankly based in fiction and not fact.

Technology is free for anyone to use unless it is protected

This is the fundamental principle of every industry and how we as a society progress and evolve. Imagine there was only one car or guitar manufacturer. I welcome this opportunity to set the record straight not only on past cases but to also clarify our view on IP and what constitutes fair competition as well.

About 30 years ago, as a small garage operation, we became involved in a patent dispute with Aphex over a processor we were building. At that time there were several companies who produced those exciters, such Akai, SPL, D&R, etc. Our patent attorney advised us that the Aphex patent was invalid and I also applied for my own patent (DE3904425), with sponsorship from the acclaimed Fraunhofer Institute, the inventors of MP3. Despite assurances and our own beliefs, we ended up in court where the judge ruled in Aphex’s favor and we lost the case. We paid damages and moved on.

This case illustrates very clearly what I came to understand over the ensuing nearly 30 years about patents and IP. Disputes over intellectual property are commonplace in many industries and especially so in the technology industry. IP is a grey area, as it deals with patents, trade dress, copyrights, designs etc. where not much is black and white.

Just look at cases with Roland versus InMusic, Gibson versus PRS, Peavey versus QSC, Microsoft, Blackberry, Yahoo, Google, Samsung, Apple etc. Lawsuits are often used as “guerilla tactics” and especially common in the US where legal fees are sky high and each party has to pay its own fees regardless of the outcome of the case. This, along with the fact that IP litigation is often used as a tool to push a competitor out of business, are reasons why there are so many cases in this area of law.

Misconceptions around IP

One needs to be clear about the distinction between blatantly copying someone else’s product and the principle of reverse engineering. Copying a product 1:1 is clearly illegal, however reverse engineering is something that takes place every day and is accepted as part of a product development process known as benchmarking.

Often one company will establish a new market opportunity for a unique product and others will follow with their versions of that pioneering product. Think iPhone followed by Samsung Galaxy. This is the principle of competition.

The Article from Berkeley Law School gives a great read and provides valuable background information. A quick excerpt demonstrates why public opinion often differs from the law.

“Reverse engineering has a long history as an accepted practice. Lawyers and economists have endorsed reverse engineering as an appropriate way for firms to obtain information about another firm’s product, even if the intended result is to make a directly competing product that will draw away customers from the maker of the first product.”

One of the cases that endures in people’s memories is when we were sued by Mackie over alleged infringement of their IP. After a series of very costly and bitter court cases which we all won, Mackie reached out to us for a settlement which did not involve any money. It was proven in court that we had not copied their schematics or PCB layouts, nor had we infringed on any patents as there were none. Nor had there ever been any legal cases brought by BBE, dbx or Drawmer as claimed by Mackie as part of their marketing campaign against us and which was later erroneously reported by Wikipedia and even CDM.

In our first two decades, most of our products were designed to follow market leaders with similar features and appearance, at a lower cost. This value proposition upset many of our competitors while at the same time earning us a huge fan base among customers. I fully understand that many of those competitors would be frustrated by our ability to deliver equivalent or better products at significantly lower prices and that is the source of much of the anger directed at us by them.

Since the Aphex case we have been sued several times and we equally had to sue competitors over infringement of our IP. This happens in every industry and is part of a fierce and competitive landscape.

However, to be clear, we have not lost any substantial IP case since the Aphex case 30 years ago and legal cases are a matter of public record.

We are committed to never engage in any activity that willfully infringes on the intellectual property rights of any company or individual. However, we are also aware that legal wrangling will continue as we press on with our philosophy of delivering the best products at the lowest possible cost.

We welcome criticism

I am a big believer in free speech and welcome any form of constructive criticism, as this is the only way for us to learn and improve. We also don’t mind any comments made or language used by individuals as this is a matter of personal choice.

It becomes sensitive when incorrect or defamatory statements are made by competitors and the media. While there is free speech, words do have consequences and since we are all bound by the law, the rules should be applied equally to everyone.
Once again, I understand that people have their opinions and preferences and I fully respect that. I also understand that some people don’t like me or our company, and chose not to buy our products which I respect, too.

Since we started our company 30 years ago, we have always carefully listened to our customers and built what they wanted us to build. Sometimes people would request us to improve an existing product in the market, sometimes they would come up with a complete new idea. In fact many of the ideas for our most successful products have actually come from our customers and for that we are immensely grateful.

However, we are also aware that legal wrangling will continue as we press on with our philosophy of delivering the best products at the lowest possible cost.

This is the philosophy I started the company on 30 years ago, and this is the philosophy that will carry us into the future.

Thanks for listening.

Uli

Pictured: a mock-up of Music Tribe City.

The post Behringer responds to reports, defends reverse engineering appeared first on CDM Create Digital Music.

Behringer have sued Dave Smith Instruments, forum posters for defamation

In addition to sending a cease-and-desist letter to a popular Chinese music gear site, Behringer are now taking rival manufacturer Dave Smith Instruments – and unnamed users of a popular forum – to court.

Last week, CDM reported that Behringer’s global entity, MUSIC Tribe, had sent a cease and desist letter to Chinese news site Midifan, threatening a criminal defamation lawsuit would be the next step. However, as of this writing, no lawsuit has been served.

CDM was tipped off today that court filings are available showing MUSIC GROUP (in the USA) have proceeded with legal action against Dave Smith Instruments and various defendants for libel per se, libel per quod, and product disparagement, in the state of California, seeking damages in excess of US$250,000. The filings are dated 9th of June 2018.

The twist here is that in addition to Dave Smith Instruments, the manufacturer, and employee Anthony Karavidas (an engineer at DSI), the lawsuit seeks damages from an additional twenty individuals posting in the same forum thread. Since the identity of those individuals is unknown, they’re named as “DOES 1-20.” In the words of the lawsuit, “the true names and capacities, whether individual, corporate, associate or otherwise … are unknown to Plaintiff.”

In other words, it’s possible someone reading this article just got sued in California but doesn’t know it yet. Uh… hi there, happy Tuesday.

Behringer name Dave Smith’s Prophet Rev2 as a competitor to the Behringer Deepmind 12 in the suit.

Court filings are available as public record of the San Francisco County Superior Court (that’s the state trial court of the county of San Francisco). Expect a large pile of legal findings from the two companies and their lawyers, but those are located here:

https://sfsuperiorcourt.org/

(All documents related to the proceeding are located under case CGC17559458.)

The lawsuit is directed exclusively at commentary published by DSI employees on the Gearslutz forums.

But to review: a selection of comments by a single engineer and twenty unnamed individuals has been turned into a quarter-million dollar-plus defamation claim against a manufacturer, an individual, and pseudonymous forum posters. That thread is still up – it reached the 153-page count before a Gearslutz moderator closed the discussion, on the 4th of July of 2017. One sample:

Behringer Mini model D? A good idea?

(Whereas some threads were initiated by forum user Uli Behringer himself, this one came from a third party, before it ballooned.)

Dave Smith Instruments declined to comment for this story.

What the lawsuit says

According to evidence presented in the lawsuit, Tony, appearing as Tonykara, wrote a series of messages in a thread in early 2017 on Gearslutz forums, and later identified himself as an engineer working for DSI when a user asked him who he was. In the same thread, DOES 1-20 [users identified only by handle] chime in with other sentiments tilted against Behringer. (This thread itself was not entirely one-sided – even in the court evidence provided, you’ll read other form posters criticizing Dave Smith Instruments and Tonykara.)

These observations range from general complaints about Behringer products copying other products or characterizing business practices as “underhanded,” to specific allegations – particularly, a post by Karavidas that claims the Behringer CT100 cable tester is a “blatant copy” of a product by Ebtech.

Some of these complaints may indeed be factually questionable or genuinely inaccurate. Other claims, however, would be harder to disprove. For instance, the lawsuit highlights a comment by Mike Hiegemann (aka Paul Dither) who says “it’s not a secret that Behringer has ripped off products in the past and is planning to do so in the future.” The lawsuit characterizes that as “false, defamatory, and libelous.”

It would be hard to prove or disprove what Behringer will do in the future (obviously), but note that past lawsuits by Roland and Mackie in fact claimed some past Behringer-branded products were deliberate copies. Whether or not those makers won those lawsuits, it means that they did product a significant amount of material evidence as a matter of public record.

Or to put it another way: if you go out and say CDM is a “crap site,” I really can’t do anything. Even if you say “CDM is a biased site that only does what it’s advertisers want,” ditto. I might disagree, but could I take you to court for libel? If you say “CDM is a crap site that’s just a bunch of archaic open source tools mixed with advertiser news made for aging music hipsters,” I … actually, okay I think I’m just now projecting. You get the point.

So, the next questions to answer appear to be, how truthful or untruthful were these statements? Can they be held as libelous? What damages would the authors owe MUSIC Group, if so? Is Dave Smith Instruments legally responsible for what one of its employees posted on a forum?

And I suspect most of interest to readers of this site, can Behringer unmask a series of people posting under pseudonyms and hold them responsible, as well?

There are three charges made in the lawsuit:

Libel per quod. Paraphrasing: claims about Behringer’s business practice and alleged history of copying other products are false and have hurt the company’s reputation. This category requires demonstrating specific legal damages in court.

Libel per se. This is a related set of claims, but because of US law forbidding attacking someone else’s business profession falsely, might not require damages. [Very big disclaimer: I’m not a lawyer. If I were a lawyer, I would probably advise you that you shouldn’t take this description as legal advice. But you can get this literally from what “per quod” and “per se” mean.]

Product disparagement. Here, because potential customers read these statements, and they refer to the Behringer brand and products, there’s a specific claim of damages to the brand and the products, beyond

If you can find your way through the court documents, you’ll find exhibits reproducing the complete forum thread, plus a cease and desist letter sent on the 7th of March 2017 – and an agreement by Tony Karavidas to comply with the letter.

There are a couple of things here that are unclear to me, which I will try to investigate.

One, reading through the lawsuit, I’m unclear as to the degree to which Karavidas may have violated the terms of the cease and desist. It appears that some message posts – as he attempted to continue to explain and/or complain about the situation – post-date an agreement to cease disparaging Behringer. It may be that failing to adequately respond to the cease and desist triggered the legal action, instead of defusing the issue.

Two, it’s unclear what will happen to other, pseudonymous posters to Gearslutz. The lawsuit says these “Does” 1-20 will be amended to the lawsuit once their identities are known. That may mean attempting to obligate the forum to reveal those identities. (Historical footnote: when Apple attempted to unmask sources and authors of stories on its leaked “Asteroid” audio interface over a decade ago, courts ruled it couldn’t, in a case called Apple versus Does. This is a different set of circumstances, but it gives some clue to how courts handle unidentified users in legal cases.)

Watching this case, however, may prove itself interesting. The law is intended to prevent damage to a profession – whether you’re one person or a big manufacturer – based on untrue claims. But this means two things, if the courts work correctly. On one hand, if false claims were made about Behringer, that will presumably come out. On the other hand, if Behringer are simply gagging criticism, and if industry complaints that their products are unfairly copying intellectual property, theoretically, that should come out, too.

And, of course, it’s possible for both of those scenarios to be true at once, depending on how this shakes out.

But for anyone who believed that defamation was some peculiarity of Chinese law last week, in fact US law and many international laws do hold individuals and publishers (like this one) legally responsible for damages if we make claims that are false. And yes, suffice to say, that could put a publisher out of business, on legal fees alone. That’s not a commentary on this case – that’s the reality of tort laws worldwide. And those laws exist to balance protections on free speech with the impact that speech can have as others.

Behringer had not yet responded to CDM’s request for comment as I published this.

Behringer and China

Late last week, I shared news that Chinese news portal Midifan had received a cease and desist letter from Behringer, via Music Tribe.

Behringer threatens legal action against a site that called it a copycat

Midifan emphasized that the letter complained about products “copying” existing products, and in fact the letter from Music Tribe singled out coverage of Superbooth introductions of products with appearance, names, and structures based on the Sequential [Dave Smith] Pro One, Roland VC-330, SH-101, TR-808, and vintage modules, plus the ARP Odyssey. (Note that KORG had licensed the Odyssey and collaborated with its original creators; Behringer did not.)

Midifan and Music Tribe also clashed over reports by Midifan of a worker strike at Behringer’s MUSIC Tribe City manufacturing facility in Zhongshan, China.

Behringer has declined to comment publicly on CDM’s story. I did reach out to Uli Behringer directly over the weekend, and had a conversation, but got no further public comment.

Uli Behringer did post a statement to the MUSIC Tribe Academy Facebook group, which CDM shared via our own channels.

https://www.facebook.com/musicmotionnoise/posts/10156301703909870

This post disputes claims of worker health issues at their own MUSIC Tribe City manufacturing facility, opened this year. And it invites us to go visit the actual facility.

It doesn’t respond to other questions about the cease and desist letter.

If Behringer add more, I’ll run it here.

The post Behringer have sued Dave Smith Instruments, forum posters for defamation appeared first on CDM Create Digital Music.

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