I’m excited to finally be able to let you all know where I’ve been these last few months.  NET(net), Inc. has acquired the licensinghandbook.com family and we’ve all spent the last several weeks preparing, moving and re-organizing content to better serve you.

I’m sorry I’ve been away so long… these types of transitions are difficult to say the least.  I haven’t had a lot of time to blog as much as I would like with my new duties – but this move now provides you with access to more than a dozen software license negotiation specialists: from Scott Braden and his Microsoft practice to Steve Zolman and his incredible wealth of practical negotiation advice and expertise.

The result is that you’ll be better served by the team rather than just me as an individual… and since I’ve wanted you to always have the best information, this is an incredibly fortunate event.

For now, blog posts will be cross-posted at licensinghandbook.com and at netnetweb.com/blog.  I will be redirecting the feedburner RSS feed shortly.  But feel free to make the necessary changes on your side first.

I look forward to continuing this adventure with you!  Feel free to find me at jgordon@netnetweb.com going forward.

~Jeff

This acquisition strengthens NET(net)’s market leadership position with respect to helping clients optimize software licensing investments, adding to the collective expertise and Federated Market Intelligence of its already thriving investment optimization practice. Along with the acquisition comes Mr. Jeffrey I. Gordon, the former owner of the licensinghandbook.com family, who joins NET(net)’s team of experts as Vice President of Value Creation. As part of this role, Mr. Gordon will be responsible for leading NET(net)’s COMPASS practice, managing key client engagements, and refining the professional services delivery methodologies for NET(net)’s maintenance and services related engagements. Mr. Gordon will continue to write licensing, contracts and intellectual property-related articles for NET(net)’s blog and former licensinghandbook.com content will be available at www.netnetweb.com [Update: this content is available now, please update your links.], including access to Mr. Gordon’s books and training video series.

NET(net) President & CEO Steven C. Zolman said,“The LicensingHandbook has been a valued resource for many clients dealing with the complexities of the software licensing conundrum. Capturing the collective market intelligence of years of research, analysis and publication, will help us continue to refine our already industry leading capabilities as we surge further ahead in the IT Investment Optimization industry. Integrat- ing the expertise of Jeff Gordon into our value creation services engine will enable us to deliver this compre- hensive expertise in all future client engagements”.

“Understanding the old adage,‘Never bring a knife to a gunfight’ is essential when it comes to working with technology suppliers. Having the right tools and the right people makes all the difference when it comes to managing both spend and risk. NET(net)’s team of seasoned professionals allows me to provide more value to our collective clientele. From Microsoft-specific experts to former CIOs, NET(net) has created a best-in- class services organization and I’m honored to join the team!” said Jeffrey I. Gordon.

About Licensinghandbook.com:

Based in Raleigh, North Carolina, Licensinghandbook.com has a monthly readership of more than 200,000 individuals interested in learning the ins and outs of software licensing, contract negotiations and risk management issues.

About NET(net):
Founded in 2002, NET(net), Inc. is a global IT Investment Optimization and Negotiation firm, serving more than 1200 clients worldwide, in virtually every industry sector, with over 15,000 engagements, resulting in strategic and financial value exceeding $50B of incremental value. Additional information is available at www.netnetweb.com.

You can read all of the story in more detail at ConsortiumInfo.org.  The end result is a huge win for open source developers as a result of three key findings by the District Court:

1. Violation of an open source software license constitutes copyright infringement, not just breach of contract (this was first upheld by the Federal Appeals Court in 2008 in this case).
2. Use of open source code without attribution is a violation of the Digital Millennium Copyright Act.
3. These violations entitle the Plaintiff (Jacobson) to monetary damages – which, as they’re based on violations of copyright law, are potentially much more substantial than those which may have been limited by contract law.

There are some mitigating circumstances in that the results in this case are not yet dispositive of all future violations, as the ruling of a US District Court is limited to absolute applicability only in its geographic district.  The concern is that a Federal Appellate Court (including the US Supreme Court) could overrule or otherwise reverse this decision.  Worse yet would be another US District Court coming to a different conclusion with a similar set of facts.

But for now, FOSS developers can rest a little easier knowing that their creations are protected by copyright law.

I saw an interesting article today that high-tech vehicles were posing problems to some mechanics.  The mechanics claim that they can’t afford the thousands of dollars that are necessary for them to obtain the specialized diagnostic tools for each auto manufacturer.  The manufacturers are claiming that they’re trying to protect their intellectual property.

Sound familiar?  Yup, it’s exactly like the issues Frank Scavo and Ray Wang have written about with regards to third-party software providers being blocked from performing various maintenance/implementation tasks by the contracts and software licenses and services agreements of certain primary vendors.

On the automotive side, it’s apparently gotten to be such an issue that there’s a congressional bill called the Motor Vehicle Owners Right to Repair Act of 2009.  The stated purpose of this Bill is to “protect the rights of consumers to diagnose, service, maintain, and repair their motor vehicles”.  What’s really interesting are the Bill’s findings, among which say that:

• Motor vehicle owners are entitled to choose which service provider will diagnose, service, maintain, or repair their motor vehicles.
• Promoting competition in price and quality… will benefit consumers.
• Only service technician with the necessary tools and information can access the computers to perform diagnosis, service, maintenance and repair…

And the requirements of the Bill, specifically:

• Duty to Make Tools Available:  The manufacturer of a motor vehicle sold, leases or otherwise introduced into commerce in the United States must offer for sale to the motor vehicle owner and to all service providers on a reasonable and non-discriminatory basis, any tool for the diagnosis, service, maintenance, or repair of a motor vehicle, and provide all information that enables aftermarket tool companies to manufacture tools with the same functional characteristics as those tools made available by the manufacturers to authorized dealers.
• Replacement Equipment: The manufacturer of a motor vehicle sold, leased, or otherwise introduced into commerce in the United States must offer for sale to motor vehicle owners, and to all service providers on reasonable and non-discriminatory terms, all equipment for diagnosis, service, maintenance, or repair of a motor vehicle.

The only thing the Bill protects for the manufacturer are things that are actual trade secrets.

Wow.  Of course, there are a LOT of people (and more specifically, a lot of trade association and advocacy groups) behind this Bill.

Could you imagine what would happen if this passes and someone realizes that software in cars isn’t that dissimilar to plain old enterprise software?  If only there was a trade association group for buyers of enterprise software apps. 

But let’s talk about the other side of the issue for a moment.  Do consumers have a right to have third-party companies provide service?  A right?  No.  I don’t think there’s a right to be able to have third-party providers.  [Keep in mind, when we're talking about rights, we're talking about things equal to "life, liberty and the pursuit of happiness...".]

Absent a right, should third-party providers still be allowed/encouraged?  I’m really torn on this.  On one hand, I’m all in favor of things that inspire commerce.  I like behaviors that create business, allow more people to work… and of course, things that drive down costs and dissipate apparent monopolies.  On the other hand, an individual or organization who creates something should be able to protect their idea/invention and not have to give up the secret sauce simply so that other people can benefit.  But there seems to be a line somewhere that once you cross it should allow for third-party companies to fill available niches.  Maybe it’s where the original vendor is no longer able to provide a quality-level of service.  Maybe it’s a situation where the original vendor is charging exorbitant rates.  I’m not sure.

Anyone have a solution?

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

• RT @TradeSecretLaw: Vary the Speed and Timing of Your Negotiations for a better deal. http://bit.ly/XP5W9 < Good. Are there better examples?
• RT @johnlwatkins: New blog post: Why Judge’s confidentiality rule may increase arbitration and mediation. http://bit.ly/j9PYj
• RT @TOpatentlawyer: Microsoft patents a way to make more money from MS Office http://ow.ly/tGOg (via @slashdot)
• RT @dahowlett: Qu: do software buyers make rational decisions? Methinks ‘not often.’
• The Cloud Computing Consultant: http://bit.ly/2lSgVQ (via @dealarchitect) < Hilarious and NSFW.
• MS attempts to patent software licensing based on time: http://bit.ly/kRcsO < I hope there’s a solid prior art search (and practice).
• RT @glambert: “When is a blog a sponsored endorsement?” (via DLA Piper) http://bit.ly/peWyj
• RT @CopyrightLaw: “NBC And CNBC Sued For Infringing Use Of…FONTS” http://tinyurl.com/yfob39h
• RT @jayshep:Best law school advice? “Say hi to Heidi. She’s in our section.” Been married to her 13 years with 2 beautiful daughters.<
• RT @TradeSecretLaw @worklawyer: Don’t lecture. Tell stories. Emotion is more persuasive than facts. < works w/ negotiation, too.
• RT @matthomann: Three great questions to help you remove ego from your (and your clients’) decision making: http://bit.ly/isPkL < Excellent!
• RT @CopyrightLaw: “More fair use follies — copyright infringement by court filing?” http://tinyurl.com/yh75nfc < I’m loving @copyrightlaw
• RT @gfiremark: Termination rights: music to artists’ ears http://bit.ly/15O7Hq
• RT @CopyrightLaw: Resale of International Textbooks to US Students Not Protected by First Sale Doctrine http://tinyurl.com/ybqo828
• RT @gfiremark: Was a Contract Formed? http://bit.ly/OvsQs < K wasn’t conditioned on others’ perf. Can’t wait to see the pics.
• @VBalasubramani OK… so who’s going to take this to the SCOTUS? And what’s the third case: Vernor, Cincom and…???
• RT @VBalasubramani: what’s the difference between a purchase and license of software? http://bit.ly/QSMwP < Congrats! Great job.
• Cool trademark search/registration site: http://www.trademarkia.com
• Andy Clarke (@cowshedstudio) on being a Contract Killer: http://bit.ly/Bv4pP <Good article by the kind of person I want as a contract client.
• RT @highrockmedia Freelance contracts: Do’s And Dont’s – http://bit.ly/hiXLg (via @smashingmag) < I’m commentator #39.
• SEC charges former CEO of IBSG with fraud in announcing fictitious licensing agreements: http://bit.ly/3NLp6U
• RT @gtiadvisors: Gmail, AOL, Yahoo! all hit by webmail phishing scam http://bit.ly/3UN3CM < What does this say about the USERS?
• RT @ITLeadersForum @alltop The Twitter decision flow chart – fun way to think about our use of Twitter…http://retwt.me/CgU4
• RT @marinafeehan: Nixon Peabody Says Student Recruitment needs Overhaul. http://bit.ly/CJsHL < Translation: We don’t want to go it alone.
• New post at licensinghandbook.com : FTC Required Disclosure http://bit.ly/18TPsw
• RT @WieseLawFirm: What are you saying that you aren’t saying? New Blog Post up on the importance of Body Language. http://bit.ly/4gSB7k
• RT @Molly_McDonough: Need a social media/copyright refresher? Take this @bobambrogi quiz http://bit.ly/EyHq
• RT @DanaNewman: Guns N’ Roses sued for copyright infringement: http://bit.ly/NbvWI
• Court Re-Affirms First Sale Doctrine Applies to Licensed SW – http://bit.ly/2fNwsI < Compare w/ Cincom http://bit.ly/IJKVR
• Just use whatever the hell you click “yes” to the first time you load up Resident Evil V to get you started. > http://bit.ly/3WiF51 < Oh my
• Stanford loses patent rights b/c a researcher signed a partner co’s visitor agreement (@ontechcontracts): http://bit.ly/vyPit
• RT @gtiadvisors @kaedron: Microsoft confirmed that thousands of Hotmail accounts compromised in a phishing attack – http://bit.ly/1kpIVT
• RT @fscavo: Expect to hear more of these. From @DavidLinthicum “SaaS Horror Stories Are Starting to Appear” http://bit.ly/kpFT4
• RT @Francineward: Intellectual property- Should biz methods be protected by patent? What will the Supreme Ct say? http://tinyurl.com/ya84d57
• RT @BrianNFletcher: Reading: Red Hat files briefing in support of stopping software patents http://sbne.ws/r/2WRe
• RT @DanaNewman: Dreamworks’ “Flushed Away” sued for copyright infringement: http://bit.ly/p9dOa
• New post at licensinghandbook.com : Announcing the Software Licensing Education Series on DVD http://bit.ly/7RNjZ
• RT @JoeTalik: Many firms unhappy with procurement outsourcing deals http://bit.ly/2lcPP < Don’t outsource what you don’t already do well.
• RT @gfiremark: Excellent Review of “most prolific scholar of copyright in history” http://bit.ly/2dGAws
• Have you downloaded my free Software Licensing Risk Matrix yet? http://bit.ly/FreeRiskMatrix
• RT @raesmaa: Do your lecture notes violate your prof’s copyright? Holy crap! http://bit.ly/1yyPoT < Read comment #8 for the best analysis.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

• RT @CopyrightLaw: “Music Industry Copies Language Of Copyright Reformers In Pushing For Three Strikes” http://tinyurl.com/ybbqfs4
• RT @CopyrightLaw: EFF: “You Bought It, You Own It: MDY v. Blizzard Appealed” http://tinyurl.com/ye4tcu6
• RT @gfiremark: It’s official: Victoria Espinel nominated as ‘IP Czar’ http://bit.ly/2yIgv
• @fscavo they’d better understand 97-2 if they want me to bend for a revrec issue.
• @rwang0 Make them show you the section in AICPA SOP 97-2 which stops them from doing what you want them to do.
• RT @rwang0: Finding it pred that software vendor sales reps keep using rev rec as an excuse when pushed for discounts on 1yr maint contracts
• RT @libertyluver: Justice Ginsberg in the hospital…a speedy recovery to a one of a kind woman!!!! http://ow.ly/qZLh
• RT @kevinokeefe: My Name Is Kate and I Am a Listener; listening is key to use of the net (@accesstojustice) http://bit.ly/k4ART
• RT @CopyrightLaw: “Beyond Kicking People Offline, France Raises Fines For Copyright Infringement To $440,000” http://tinyurl.com/l9foj7
• What a well-placed $20 gets you (via @kottke): http://bit.ly/p8M5w
• RT @libertyluver: And someone said Copyright Law didn’t matter? How about sticking your foot in your mouth again? http://bit.ly/1OrWtW
• RT @CloudAve: DMCA Take Downs, Copyright, Fair Use http://bit.ly/wpA7f
• RT @vpynchon: downturn=commercial wild west: READ THE CONTRACT … DO NOT SIGN if it contradicts reps made by sales
• Seth’s new business isn’t a hit.. it’s extortion. (@TEDchris) RE: http://bit.ly/2ljDEW
• New blog post on licensinghandbook.com: Insurance Basics http://bit.ly/uadLy
• Do you only worry about the dollar limits in your contracts’ insurance sections? Think again. Full story coming in 20 minutes.
• Not that Apple actually needed anyone’s permission: http://bit.ly/3x2fXO
• Facebook gives developers access to users’ inbox messages!!! http://bit.ly/3r67OL Oh boy.
• RT @stephenrwalli: blogged thoughts on the open source business “tools” and dual licensing: http://tinyurl.com/nz6uzx
• @nipclaw Hmmm… dunno’ that that’s the real problem. I’ve met VERY few lawyers who’ve drafted a contract from scratch.
• @nipclaw Copyright on forms might not apply in the US. Depends on a LOT of variables (See http://bit.ly/TAL4f as well).
• RT @CopyrightLaw: “Scribd fires back, denies violating copyright” http://tinyurl.com/l7bqux < Gonna’ be quick if Scribd’s being truthful
• RT @richards1000 @jaredcorreia @AbacusLaw History: US District Court Judge issues first digitally signed judicial order http://bit.ly/18WlaX
• RT @tomsearcy: So-called “experts” are … even worse when they’re on your buyer’s team: http://bit.ly/2YF4CQ
• RT @gtiadvisors: RT @DougCornelius: [new blog post] Intellectual Property and Social Media http://bit.ly/GBn4S
• RT @blawgreview: Blawg Review Sherpa, “woman lawyer”, @vpynchon http://www.forbes.com/forbe… writer http://tinyurl.com/m4ewy6
• RT @SusanEJacobsen: A litmus test before hiring a social media “expert” http://bit.ly/1BrE4v < Could be used with any kind of consulting
• RT @adamsdrafting Blog Update: Who Gets to Draft Contracts? http://bit.ly/pNdLY < Interesting question… would love input.
• RT @gfiremark: And that makes three (governments): The United States opposes the Google Books Settlement http://bit.ly/vDjtS
• RT @AdamsDrafting: Easier than ever to be a free rider rather than develop content.
• Too cool… just got quoted in the Washington Post on severance negotiation (I can only find the article via Omaha): http://bit.ly/3aOqzb
• RT @gfiremark: The Scholarly Kitchen: ‘$80,000 per Song, and Perceptions of Copyright’ http://bit.ly/Ju3RO < Excellent post!
• RT @TradeSecretLaw: Ten Fatal Mistakes that Business Owners Make – No. 10: Failure to Protect Intangible Assets http://tinyurl.com/pmqcht
• NC law allows minors to back out of contracts unless approved by the Superior Court. The NCAA just figured this out: http://bit.ly/le6rl
• Some rumors should rest untested (via Lowering the Bar): http://bit.ly/MHgEr

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

• RT @rwang0 @dealarchitect: Don’t cry for me Germany. SAP had plenty of warnings. http://tinyurl.com/mclvbm < I can’t wait to see who’s next
• RT @richards1000: Tuunanen et al. on Automated Software License Analysis http://bit.ly/svjQR < Cool but irrelevant. FOSS license are nonneg.
• RT @rwang0: reading the new twitter terms of service. like the fact that you and only you own your content. < At least for now.
• RT @jimcalloway @ernieattorney Important safety tip for ‘would-be lawyer bloggers’: if you lack common sense don’t blog http://bit.ly/2fFcBH
• New blog post: Content, Value and Commoditization http://bit.ly/27HVx
• RT @btannebaum: Lawyers, do you care about transparency on twitter? http://mylawlicense.blogspo…
• Contract negotiation according to the Marx Brothers: http://bit.ly/12U7pY
• US Registrar of Copyrights opposes Google book deal: http://bit.ly/KhP83 … so do I. Unwarranted monopoly.
• … and then there was a whole discussion on what constitutes being an expert at something, sparked by one lawyer’s assertion that it takes 6 months’ of research and then a good SEO strategy to get yourself to the top of the Google rankings.  I, and others, disagreed.  (RT @nikiblack @Adrianos: “How To Become An “Expert” In Your Niche In 6 Months” http://bit.ly/pIj2Q < I really do NOT like this!)
• New blog post: On Acceptance Testing… http://bit.ly/s0zsV
• @JasonAnderman The author misses part of the value of the lawyer – understanding that a form isn’t 1sizefitsall. Available /= viable.
• @ferrusi @PeterKretzman When discussing vendors, not having them in the room usually leads to more openness. It can also reveal biases.
• @PeterKretzman @mckenziesa: RE: Find a way to get the salesmen out of our vendor discussions! < Um, Ask them to leave?
• RT @glambert: Blogging Lawyer Charged with Confidentiality Violations – http://bit.ly/mLcTj (Public Defender tells a little too much)
• RT @rwang0 Cloud computing model – IDC numbers show s that its … 1/2 the cost < How does that translate to customer fees?
• RT @PeterKretzman @testobsessed Source code, like invty, is a liability, not an asset. (PK: indeed. It’s why I laugh at source code escrow)
• RT @vpynchon @tamerabennett: Disney, Pixar Sued by Luxo Lamp Co: http://bit.ly/MO4X7 < Shouldn’t matter. Pixar’s not selling lamps.
• RT @fscavo: @negot8or thinks #saas providers should set up living trusts (my word) for their customers. Read comments: http://is.gd/34L65
• Kate Gonzalez’s Tom Ten Force Majeure Imposters (via @superbuyer): http://bit.ly/Ol4Wy
• Confessions of a Car Salesman: meeting, greeting and dealing: http://bit.ly/3nihk (via edmunds.com)
• Antitrust lawyer slams Google book pact: http://bit.ly/83Hqp (via All Things Digital)
• RT @LeighMonette: RT @PrivacyLaw: “’Anonymized’ data really isn’t—and here’s why not” http://tinyurl.com/ksxz8t
• RT @fscavo: Just blogged: SaaS contingency plans need more than software escrow http://bit.ly/r2cJn < Escrow is wasted money IMHO.
• RT @jimcalloway: Blogged about lawyers taking their laptops across the U.S. borders. http://tinyurl.com/n4bfms
• RT @BrettTrout “World Patent” good for M$, bad for most everyone else. http://bit.ly/o0rbZ
• Jeremy Telman, contracts prof @ my almamater, on why execution before performance is a good idea: http://bit.ly/1iJjY7
• RT @vpynchon: http://twurl.nl/tiuvp7 the negotiation analysis of the lessons of the Cove (which halted the killing of dolphins for one day)
• RT @bobambrogi: LawSites blog: Plaxo’s New Terms of Service http://bit.ly/1BNRy
• RT @bobambrogi @paulzink: You and your attorney colleagues (esp. those in copyright law) may get a chuckle from this: http://bit.ly/jJd6G
• … and then we had a long discussion on the tweeting of the play-by-play via twitter of a NFL game (the NFL likes to exert some extreme control over their content).  Some folks thought that twitter was a game-changing technology.  I argued that it was control-changing…. that they should tweet every game in their own words: @FlashFusion @julito77 @gtiadvisors It’s only a copyright issue if you tweet the actual broadcast wording/play-by-play. Make up your own.
• RT @doctorow: Another reason you can’t outsource your kids’ online safety to spyware companies: http://tinyurl.com/n934fh < Read the EULAs!!
• RT @gtiadvisors @GregBufithis @BrettTrout Proposed U.S. patent law reforms would stifle innovation and injure entrep’s http://is.gd/2ZXza
• RT @OmarHaRedeye: Blawg Review #228 is live http://bit.ly/11D50J/ < Thanks for the inclusion!
• Sometimes is pays to see how the software sausage is made: http://bit.ly/S3b5p

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

Some of these articles advocate changing the business model – such as this article that talks about offering “free” versions and then what amount to special editions – customized content that people would pay for since it appeals directly to their interests.  Others, like this post by Jason Anderman (of WhichDraft fame), talk about the economics and business advantages (giving away free content potentially encourages customers to come back to you for paid gigs).  But everything seems to be stemming from Chris Anderson’s latest book: Free: The Future of a Radical Price.  As I’ve not yet read this book (but his other on The Long Tail was interesting, if not challenged by some economists), I can’t really comment on what Chris is suggesting.

But I can comment on the value of free, especially as it relates to contracts, software licenses and other legal forms… and it’s a cliche, but the truth is: You Get What You Pay For, especially in legal forms.  But this is because it’s not about the form itself, but rather, the drafter and the advice you get when using the form.

To understand why legal documents are somewhat of an exception, it’s important to start at a foundational level (with the law) and build up towards the client.  Remember first that within the United States alone, there are 51 bodies of law (each State, plus Federal), not including any of our protectorates or territories… nor considering any of the other 193 US State Department-recognized countries’ laws.  Second, know that within a given type of agreement, there are literally THOUSANDS of potential combinations and permutations of clauses that can be used to obtain a particular goal – and dozens when you whittle down your agreement to only be governed by one or two bodies of law.  Lastly, think about your own personal situation with respects to your needs.  Now look around and ask yourself what other items in your life you use without modification of some sort.  Your home, car, office… even your computer.  All are customized because of the way you plan to use the tool.  Sure, there might have been a framework involved, but who did the customizations?

The answer, with respects to contracts, is a contract specialist and sometimes a lawyer.  They use templates as starting points to prevent the re-invention of the wheel and to make sure that all bases are covered.  But they are only starting points.  As I’ve said in the past, I almost never give/sell/provide my templates to other people because I’m simply afraid that they’ll take them and use them without modification – contrary to their intended use.

In fact, a few years ago, I ran a search to see how many online EULA’s were similarly modeled after Microsoft’s… and was pretty shocked to discover the sheer number that had copied the document word-for-word, including the choice of forum language (venue) for any disputes.  I notified a very distressed company in Australia that they might want to change the language because as it stood, any disputes with them would have to be resolved in King County, Washington (Seattle, Microsoft’s hometown).

So remember that while you might find forms, templates and other legal documents freely available online, you probably need professional assistance to help you customize that document for the specifics of your particular situation.  Don’t be fooled into thinking that one size fits all.  It doesn’t.  AVAILAbility doesn’t equal VIAbility.  (That said, Stephen Guth gives away his license agreements – which are good starting points if you’re looking for a free document.)

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later and “<” which means that I am commenting on what came before it.

• RT @LeighMonette @cyberlaw: Microsoft can still sell Word, at least until the appeal is decided – the stay was granted. http://is.gd/2StlM
• New blog post: The Prisoner’s Dilemma http://bit.ly/3pXV37
• It only takes 1 person who knows your purchasing system to bilk you. http://bit.ly/pBmcI Wanna’ chat about better processes? Call me.
• RT @harrymccracken: Amazon gives Kindle owners their copies of 1984 and Animal Farm back: http://wp.me/pg9un-4iW
• Remember the story about a music label paying artist’s education from early this summer? They didn’t. http://bit.ly/hhf1a
• Because I love words: http://bit.ly/rN6v0
• RT @bobambrogi: LawSites blog: New Site for Sharing Legal Documents http://bit.ly/1SXQGf < Just remember you get WHO you pay for.
• RT @wallybock: RT @ericdbrown: Blog post: The Dangers of Hidden Talent – http://bit.ly/170Yk
• RT @gtiadvisors @GaryHonig: The SBA has a new online federal procurement training site http://www.sba.gov/fedcontr…
• RT @gtiadvisors @constructionlaw: Insurance, Guarantees and Performance–Oh my! http://su.pr/1aFG69 < Glad 2 C this is more than an IP prob
• RT @blawgreview: Is there a looming trust crisis in the “social media expert” space? http://tinyurl.com/lfc9bn via @CharlesHGreen
• New blog post: Brittle Contracts http://bit.ly/2Qo5hE
• RT @Licensing_News: TSO3 enters into exclusive negotiations with 3M http://cli.gs/dNPJ7 < Wondering about benefits of this announcement.
• RT @SusanEJacobsen:“Small talk” is just that–small & insignificant. Say something meaningful. Give folks something to think about. Be real.
• Fifth of Five Fundamental Skills for Effective Negotiation (Communication): http://bit.ly/2GfAel
• RT @CloudAve: Free Sometimes Comes at a Huge Cost http://bit.ly/x2f5O < Excellent!
• RT @gtiadvisors: @negot8or (trusting SM) I would suggest the old fashion way – Trust, but Verify… the verify part is where we help.
• DOJ announces $1.9M+ in grants for criminal IP enforcement: http://bit.ly/11MMWZ
• Is breach of contract a good use of taxpayer dollars? http://bit.ly/d7kgE
• One reason I don’t like press releases for deals: http://bit.ly/12rE0o
• 4th of Five Fundamental Skills for Effective Negotiation (Perception of Power): http://bit.ly/Fi64Z
• I’m excited to announce that my wife and I are expecting in March, 2010. http://twitpic.com/g17r0
• Seth Godin on “wanting”: http://bit.ly/1mvLJ8 < Apply this before negotiating to clarify your needs vs wants.
• RT @LeighMonette @internetcases: Interesting email privacy case that could be relevant in cloud computing context: http://is.gd/2JxpU
• Thanks to Sheryl Schelin (@theinspiredsolo) for including the LicensingHandbook Blog in this weeks’ blawg review: http://bit.ly/YULSx
• RT @gtiadvisors @BurgessCT: Alliance Against IP Theft http://ow.ly/nnke – their new website is full of useful data & easy to navigate
• RT @SuperBuyer: How are vendors like a Big Eighties band? Find out here: http://tinyurl.com/m3m9y2
• RT @jod_writer @caseywright: Girl’s science project disproves advertiser’s claims, results in multi-million $ lawsuit http://bit.ly/14iTan
• RT @jod_writer @chucknewton @BlawgTweets: Ave Maria School Of Law Prepare Student’s For Law School By Scrubbing Toilets http://bit.ly/17DcKc
• RT @gtiadvisors @gaconsultants Not first time, had case 3 yrs ago, Marriot and Radisson Customer Data Breached http://bit.ly/ZP6dv
• RT @fscavo: heheh RT @yourdon For software ppl, today’s Dilbert is hilarious! http://bit.ly/LSuwW
• RT @iasta: Poor Communication = Poor Supplier Performance, Part V http://bit.ly/2jMoQV

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

I also realized that many of you might have no idea what you’re seeing below.  Sorry.  These are “tweets”, 140 maximum character messages sent via Twitter.  Within the Twitterverse individual users follow others and have followers (think of it like overlapping Venn diagram circles).  To read a tweet, you have to wade through a bit of jargon used to make the most of the 140 character limitation.  “RT” for example, is shorthand for “Re-tweet” and the @____ is the username of some other individual on Twitter.  Combined together, then, “RT @_____” means that someone else wrote a tweet that I found important and I now want to forward along to my followers.  The URL’s are then also shortened by shortening services like bit.ly to make the most of the character limitation, too.  Lastly, you might see “hash” identifiers “#______” which are ways to tag tweets of a particular flavor for easy searching later.

• RT @ferrusi: RT @procurement: 10+2 Strategies for Managing Suppliers http://bit.ly/wIbFn #sourcinginnovation
• @gtiadvisors Even better is the ToS: http://bit.ly/12Pupt <They’ll narc on you if they believe you’re attempting to commit fraud.
• Lego “rejects” Spinal Tap’s request to use minifig stopmotion video: http://bit.ly/j4AnX < I think Lego is outside the lines on this one.
• NC passed a recent law banning texting while driving. NC DOT started Tweeting traffic updates this week. Where’s Alanis now?
• New blog post: My Lego Love is Fast Fading http://bit.ly/wncA9
• Stephen Guth on whether RFI’s are Ethical: http://bit.ly/iKzP9
• RT @DreamSimplicity: RT @SIIA_Software:#SIIA Announces Appointment of New VP of Comm http://bit.ly/4oCzQJ <could explain new pirate video
• Madisonian on the Ninth Circuit’s decision on computer searches and the plain view doctrine. http://bit.ly/wFpic
• RT @nikiblack @DougCornelius @brucecarton @complianceweek: Oops. Important: Remove “Fudge This” from Financials. http://tinyurl.com/m9t9w6
• Ongoing discussion on FOSS license types: http://bit.ly/30u595 < Really good commentary from Shlomi.
• RT @LeighMonette: RT @AdamsDrafting: Blog Update: When to Provide for Indemnification http://bit.ly/gno5Q
• RT @russellbesq: RT @LawProf: “Second Degree Murder and Six Other Crimes Cheaper than Pirating Music” http://tinyurl.com/ns8y78
• RT @russellbesq: RT @PrivacyLaw: “Alaska Data Protection Law” http://tinyurl.com/kvfudu
• 3rd of Five Fundamental Skills for Effective Negotiation – Time Management: http://bit.ly/q7Z2b
• RT @glambert: Unpredictable Playlist Dooms Sound Recording Copyright Holders’ Infringement Claim – http://bit.ly/OcufG (Mintz Levin)
• RT @nikiblack: “You didn’t learn that in law school either?” Legal Antics http://bit.ly/Ps1EF (via feedly)
• New blog post: Jeff Gordon on Supply Excellence http://bit.ly/2GnCAi
• 2nd of Five Fundamental Skills for Effective Negotiation – Strategic Thinking: http://bit.ly/11Nyof
• RT @gtiadvisors @idexperts: Feds Issue New HIPAA Data Breach Rules: http://tinyurl.com/n5sx3g < Important for your contract lang on confid.
• Layaway is back… I didn’t realize for school supplies. Anyone wanna’ see if together “we” can pay some off? http://bit.ly/3fXxPK
• RT @nikiblack: Great comments from @LeighMonette: “Should lawyers be wary of cloud computing and SaaS?” http://bit.ly/WbS6m < Agreed!!
• RT @nikiblack: Very interesting discussion re: lawyers use of cloud computing in the comments to this post: http://bit.ly/iyYyV Join in!
• RT @nikiblack: “Should lawyers be wary of cloud computing and SaaS?”: http://bit.ly/WbS6m < Note my concerns in the comments.
• RT @hitchandplow: New blog entry: Google Book “Settlement” is Bad for Law, Copyright owners and Users http://bit.ly/3IFdZv
• New blog post: More on Trust http://bit.ly/1D8f9Y
• 1st of Five Fundamental Skills for Effective Negotiation – Information Gathering: http://bit.ly/15a3Hn
• . @ontechcontracts “In praise of short, simple contract clauses” : http://bit.ly/fikJn < Perfectly succinct.
• Speed limit raised b/c “radar speed checks show … already “safely traveling” at that speed: http://bit.ly/um1k5 < chicken & egg problem
• RT @stephenodonnell: New blog post: Vendor Consolidation http://bit.ly/1s38Br < Here, here!
• RT @TheAntiGuru Playing games during negotiations can be costly… http://bit.ly/6tpK #negotiation < great story, demos all 5 Fund Skills!
• RT @francois_ A Decision-Making Perspective to Negotiation: A Review of the Past and a Look into the Future http://bit.ly/ODRX6
• @benpobjoy If you need help with contract negotiations… some of us out here are willing to do so.
• RT @glambert: New on 3 Geeks: Are Blogging and “Thought Leadership” Compatible? – http://bit.ly/WoKFa
• RT @mental_floss: Students at Occidental College can take a course in stupidity (CTSJ180) offered by the Critical Theory/Social Justice dpt.
• Baby lawyer just risked $475K on Millionaire and lost it. I wouldn’t use him as my attorney – in his own words, he wasn’t risk adverse.
• Fatal negotiation mistakes made by copyrighters (or any other service professional): http://bit.ly/gxgJv (from zeriously.com)
• Interview w/ managing partners @ Raleigh firms: 70% don’t use ANY social networking sites. Wow.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

I use the word rejection in quotes in the prior sentence because I don’t think that the Lego Group had any rights on which to make their claim.  Per the article, Lego Group claimed copyright over the figures themselves (known in Lego parlance as a “minifig”) whereas Spinal Tap’s IP lawyer clearly states that they weren’t intending to show the Lego Group’s logo or use the word Lego anywhere in the DVD.  Copyright protects written and visual works embodied in a tangible medium of expression.  So I’m trying to figure out how the Lego Group thinks that they have a copyright over the minifigs themselves.  I just don’t see it.  Even from a search at the US Copyright Office, what I see are a slew of Lego registrations over the various books, stories, videogames and logos.  I also see one deemed a “sculpture”, which I can only assume is a large version of one of the Lego minifig.  But then the copyright would only cover that sculpture itself – not necessarily every little conceivable permutation of Lego minifig made possible by the myriad tops, bottoms, heads, hair and accessories available.

But even assuming that Lego holds a copyright in the general design of a Lego minifig, would the use for this DVD not qualify as fair use?  I’m not sure it would – it’s parody, but not of Lego… it’s for profit… it “takes” the entire work.  OK.  Fair use is out.  (Which blows Spinal Tap’s attorney’s idea away, too.)

So if the minifig IS registered, yet is distributed 4 billion times (per their company profile)… without any kind of licensing document attached to it… by a company that zealously protects its intellectual property rights… leads me to believe that even the Lego Group knows that they’re on shaky ground.  [Interestingly enough, their company profile also tells the story about the company receiving a patent for their "Lego System" in 1958 - which would have long since expired.  In the US, usually (but not always), intellectual property is protected by only one type of protection.  You don't get to gain a copyright after your patents run out.  Either it's a tangible, useful good... or it's a work of art.]

All in all, I think Spinal Tap gave up WAAAAAAYYYY too early on this one.  What’s next?  Do recording artists need the permission of their guitar manufacturers (which, btw, are covered by copyright by some designers) to play their guitars in their videos?  Of course not.  The guitar manufacturer still holds copyright – but they gave UP the right to restrict where it was played in order to sell the guitar.  Same is true for the Lego Group.

Anyone else wanna’ weigh in on this?

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

Only then did I make my way to the Copyright Office to inquire about the process.  Part of the official copyright process is to file a registration certificate with the Registrar of Copyrights at the Library of Congress.  The form, two original copies of your work and the filing fee arrive in Washington, D.C. and meet with the scrutiny of an office filled with submissions from around the globe.  The individual reviewer who is going to finish your paperwork and send you back a registration certificate is also part of the process who determines whether your particular work is worthy of storage on the shelves of the Library.

The Registrar’s office explained to me that they simply have so many things come in the door that not everything is actually kept (they add about 10,000 items per day, though).  They were extremely gracious, however, in attempting to look up my book.  And they were very soft-shoed about trying to let me down gently that it hadn’t been selected for inclusion in the collection.  In fact, they told me that in many cases, the materials are sent around DC to other offices – Congressmen/women’s office, Legislative Affairs offices, even the US Supreme Court… all depending upon the subject matter of the particular work and the potential relevance to any matters currently being discussed.

I took being dismissed with grace.  But I had to admit to myself that part of the reason that I wrote the Software Licensing Handbook was to provide a resource for the future – something that I could always say I contributed to the greater knowledge of the population.  My goal, essentially, was to have the book in the Library’s collection – forever more a part of history.  It is therefore with great pride (and yes, even humility now that I understand the scope of the work at the Registrar’s Office), that I am able to say that the second edition of the Software Licensing Handbook is now a part of the permanent collection at the Library of Congress.  If you don’t already have a copy, get your LoC Reader Card on your next trip to DC and check it out for a little light reading.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

At the end of the day, the time to think about M&A-related stuff is when you’re entering into each relationship… not when the vendor announces they’re getting bought or sold.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

• RT @rwang0 BlindSearch – the search engine taste-test. http://bit.ly/kEonM < I keep getting Google.
• Gerry Spence on The Great Gift of Rejection: http://bit.ly/TlTd5
• . @vpynchon on Negotiating the Power of Reciprocity: http://bit.ly/uCPuT
• Gamer – the 2000s version of The Running Man. Anyone check to see if Stephen King is getting royalties? http://bit.ly/3oUKxr
• RT @DreamSimplicity: 4 Advs to using SaaS for your Small Biz http://bit.ly/12RrXm –> 4 Disadvs by (@negot8or): http://bit.ly/pXwjX
• RT @DreamSimplicity: Microsoft Acquires Office.com from SaaS provider Contact Office to Use against Google! http://tinyurl.com/ls3t2a
• We’ll Know When We Get There… the story of John Hughes’ pen pal: http://bit.ly/13A5QC
• RT @gtiadvisors: RT @AdvertisingLaw: Top 10 Tactics for Negotiating with the Unethical and Untrustworthy | Lawline.com http://bit.ly/vnbr6
• 20 Salary Negotiation Techniques: http://bit.ly/1hjNm6
• An interesting instance of unexpected contract terms: http://bit.ly/3bkkv The reselling, I get. It’s the “distribute” that bothers me.
• Don’t Act Stupidly (from Stephen Guth): http://bit.ly/lzGD9
• RT @SE_blog: RT @tminahan: Dug from the supplyexcellence.com archives: Dirty Supplier Tricks and How to Combat Them http://bit.ly/13zoqI
• On needing “room” to negotiate: http://bit.ly/10htxb < Quick, but fun and accurate.
• New blog post: Quoted in New Article on Settling Out of Court http://bit.ly/f7R9d
• Someone finally sued over Amazon’s Orwellian behavior. I was wondering when this would happen: http://bit.ly/L1vrS (from THR, Esq)
• Bacharach on Bargaining vs Negotiation: http://bit.ly/ti7MR
• Basic Ethics of Business Negotiators recap of discussion from Chicago ABA Meeting: http://bit.ly/vujHU
• Dell CTO on management of virtual resources http://bit.ly/tl96W
• RT @gtiadvisors, @jimrobinsonlaw, @lawsocgazette: Apple iPhone app makers need legal advice, says Law Society http://tinyurl.com/m8ybhz
• RT @hitchandplow: New blog entry: The Post Vs. Gawker: When Does Linking Become Larceny? http://bit.ly/3UiLun
• New blog post: Cnet author advocates theft http://bit.ly/mVZIU
• Cnet author advocating breaching M$ software licensing. Unbelievable. http://bit.ly/19wiKu
• New blog post: Four Disadvantages to Using SaaS for Your Small Business http://bit.ly/12IGb
• HPC Survey – over 1/4 of IT Execs plan to intro private clouds in ’09: http://bit.ly/ezpN4
• @rwang0 @kitson @fscavo Yes, users DO outnumber the vendors. But they really suck at “unionizing”.
• RT @WieseLawFirm: RT @DougCornelius: Van Halen used the brown M&M’s clause to quickly check for contract compliance: http://bit.ly/qrjA7
• RT @gtiadvisors: RT @jimrobinsonlaw RT @venturehype When should startups incorporate the company? http://tinyurl.com/l2ygmf @TMMBA528
• Google to act slightly like a normal software company – advertising its apps: http://bit.ly/yA3fj
• RT @doctorow: Associated Press will sell you a license to quote Thomas Jefferson’s public domain speeches: http://tinyurl.com/lplnqp
• Woody Allen with a negotiation tale (HT to Sam Bacharach): http://bit.ly/4tPeBZ
• Wondering why negotiation opponents insist on complete document reversion as their response to a redline. Not good for anyone.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

Thanks to Ms. Filisko for an excellent story.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

In his post, he blatently advocates buying “lesser” versions of Microsoft products to take advantages of the discounts available to certain classes of users, regardless of whether you actually fall into that user class.  His cavalier attitude towards the vendor (telling his readers that Microsoft probably doesn’t check up on usage) and the user (suggesting that users who pay the appropriate price for their user class are “suckers”) is abhorent and I’m frankly disappointed that the editors at Cnet allowed this garbage to see daylight.

I’ve responded twice in the comments (as “negot8or” if you care to read them… once on page 1 and again on page 2).  The general gist of my response is that if you don’t like the pricing for a particular product, don’t buy it.  Vote with your pocketbook.  Vendors who don’t sell enough software will either drop their price or drop out of the market.  But buying something you’re not licensed to use and using it anyways is a form of theft (“software piracy” if you will).  Software has historically been sold on the basis of end-user value.  It’s the right of the vendor to charge whatever they want.  Stealing, in any form, isn’t justified because there exists a cheaper price somewhere else – or for someone other than you.

As much as I advocate for better software licensing terms and more transparency from vendors, I do not believe in taking what isn’t yours.  I hope you agree.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

Yet, as enterprise software buyers asking for references, this is essentially what we’re accepting from the vendor – a note from the prior owner.

Several years ago, I started to put together a list of folks I’d rather talk with and I’d love to hear your suggestions as well.  These include:

• customers who never finished implementation (for any reason)
• customers who discontinued maintenance in the last 12-24 months (I want to know the number as a percentage of total customers and I want names/contact details)
• customers who are similar in size of implementation to me, but who had exceeded planned implementation time

As a customer myself, I would never hesitate to serve as a reference under these circumstances.  Would you?

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

When you buy a book, you’re actually completing two transactions.  You’re purchasing the paper – the tangible product.  But you’re also buying a copy of the story itself – the intellectual property.  Each of these has distinct legal implications and over the years, laws have been developed to help protect not only the customer/consumer, but also the author and publisher.  The physical aspect protecting the consumer is that you have the ability to change your mind about your purchase (ie: you can return the book assuming you don’t damage it and that the transaction wasn’t noted as “all sales final” (though this isn’t an absolute bar to return)).  Retailers are likewise allowed to return what is returned to them – they have even more flexible return policies with their distributors.  And, as we’ve seen in the prior articles, folks are in an uproar about the idea that a retailer would come to your house to automatically take-back things you’ve purchased simply because their distributors wanted them to do so.

The other transaction – the one for the intellectual property – is much more interesting (IMHO).

Copyright is the protection most books are afforded.  When you buy a book, you have the right to read the story, burn/destroy the book, talk about the story with anyone, and heck, you can even resell the book (this is all part of what is known as the “first sale doctrine”.  What you can’t do is make copies of the book.  If you sell it to someone else, you can’t keep a copy for yourself, too (this is the issue with software, music, movies, etc being “shared” online).  But short of sale, the ownership in the copy is yours.  Therefore, it’s my argument that Amazon.com’s behavior amounts to theft – both of the tangible item AND the intellectual property.

The usual problem with pursuing this claim is that a service provider is smart enough to make device owners agree to some form of Terms of Service.  I would’ve thought that the Kindle ToS would have even been so bold as to allow Amazon an unrestricted right to do what they did.  But it doesn’t (Amazon Kindle ToS as of 2/9/2009):

Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon. [Emphasis added.]

I have other problems with this document, of course (such as the restrictions on resale).  But on its surface, Amazon grants a perpetual license to the purchased content.  So through their behavior, following their own Terms of Service, they’re in breach.  But we won’t hear about any suits as the ToS restricts claims to confidential arbitration and limits damages to the price of the device.

For its part, Amazon says that “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.”

[Update:  Amazon's Herdener (the source of the above quote) actually said more:

These books were added to our catalog using our self-service platform by a third-party who did not have the rights to the books. When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers' devices, and refunded customers. We are changing our systems so that in the future we will not remove books from customers' devices in these circumstances.

This doesn't really change anything.  Even if an unauthorized party sells you something they don't own, so long as you don't know that the item wasn't theirs to sell, you retain ownership as a "bonafide purchaser."  I'm glad to see that Amazon won't remove books in the future, seeing that they weren't supposed to do it in the first place.]

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.  Follow me on Twitter if you want up-to-the-minute information on contracting, licensing, negotiation and the law.

AdamsDrafting

• Wal-Mart Case Raises Issues of Categories of Contract Language
• Another Instance of Semantic Ambiguity: “Buys”
• My Response to Someone Seeking Advice on Contract Drafting
• Contract Interpretation and Contract Drafting

Corporate Insurance Blog

• Insurance Coverage for Cyberattacks and Denial-of-Service Incidents

E-Sourcing Forum

• Poor Communication = Poor Supplier Performance, Part I
• Trust is the Key in Long Term Contracts

Firstdrafter

• Federal government is increasingly wanting unlimited rights in data, say commentators
• State law peculiarities – things to keep in mind in negotiating a choice-of-law clause
• Vendor sends its standard T&Cs after the deal is struck by e-mail – and later finds the T&C protections aren’t part of the contract
• An early-neutral-evaluation clause can help keep contract disputes out of court and protect business relationships

Madisonian

• Judge rules that a burrito is not a sandwich
• Our future as “parasitic aggregators” is in jeopardy
• How much of this do you think is copyrightable?
• Irony (Updated)

Settle It Now Negotiation Blog

• Negotiating Unity:  Gettysburg, Rhetoric and Poetry
• Mediation of Insurance Disputes in the London Market

The (non)billable Hour

• What Do Your Clients Think About You?
• A Legal Blogging Roundtable
• Twelve Truths About Time
• Ten Rules for Presenters

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

Now we know.  They intend to SELL IT!  This is why I harp on making sure that you have the proper provisions in your contract(s) for confidentiality, indemnification, information security and limitation of liability

To Clear’s credit, they are saying that they’re going to continue to comply with their pre-existing privacy policy – and that the data can only be sold to another TSA-approved traveler program.  But what if that program is run by an organization you wouldn’t want to have your personal details?*

Interestingly enough, however, this violates the terms of that agreement (as it existed when I pulled it from flyclear.com on June 29, 2009) – boldings are mine:

3. ADDITIONAL LIMITATIONS ON APPLICANT AND MEMBER PERSONAL INFORMATION
A. We do not sell or give lists or compilations of the personal information of our members or applicants to any business or non-profit organization. We do not provide member or applicant personal information to any affiliated or non-affiliated organizations for marketing.
B. None of the information that we collect may be used for any purpose outside the operation and maintenance of the Clear Services.
C. We would only disclose personal information about members or applicants if required to do so by law or legal process.

The termination of operation might be considered a “legal process” – but the way the language is written, 3.C. would not be valid as a result of the company’s dissolution.  Thus, they’re limited to 3.A. – which clearly states that they won’t sell the information to “any business.”  I wonder what the chance is now that they’ll only sell it to someone who’s TSA-approved.

*Not that the government doesn’t now already have your information as a result of the background check.  I’m just sayin’.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

“For ten years, we’ve been driven by a simple vision: The End of Software.  Now it’s time to take on a new challenge: The End of Maintenance.

Let me tell you about a customer that I met on our Cloudforce tour. This customer currently uses Siebel software to run her call center.  She pays more than $15 million a year for the privilege of having to implement the updates that Siebel sends her.  That does not include backup. Or disaster recovery. And of course, it does not guarantee that she will be using the latest technology.  The maintenance agreement only assures her that her outdated software will continue to work.  She is paying tolls on a road to nowhere.

We can help her, and many other customers, and deliver much more for a fraction of what they currently pay in maintenance. It’s time to open up a new front in “The End of Software”– one that is long overdue.

It’s time for The End of Maintenance.

Every year, companies spend billions on maintenance fees and get relatively little in return. Maintenance fees cover updates that are mostly  patches and fixes, but they stop far short of the kind of innovation every that enterprise needs to survive.  Companies pay to keep the past working and they end up doubling down on technology that can never keep up with their needs.  The fees that companies pay have actually been rising, from something like 17% a few years ago to numbers more like 22% today. Every four or five years, companies are paying for their software all over again.

It’s time to set these businesses free and make them successful in the Sales Cloud,  Service Cloud and on our Force.com platform.

Our new mission begins at a critical time in the economy, when companies are questioning conventional wisdom as they never have before.  That, of course, extends to their IT budgets as well. The CIO is in a tough spot right now.  Corporate budgets are tightening.  And our rivals in the legacy client-server world are using this opportunities to extract more money from their customers by raising maintenance fees.  I call this phenomenon “the compression of IT” and it resonates with just about every CIO I speak with these days.

We have a better vision. We sell our customers a service and every customer is able to use the latest. Innovations are included. Upgrades are automatic and invisible. Customers’ intellectual property of customizations and extensions is rigorously preserved, and carried forward without disruption.

The service gets better, not just less buggy. That’s not what people are getting for all those fees that supposedly buy them “maintenance.”

It’s time to set these business people free: to give them the experience of being wildly successful in the Sales Cloud, the Service Cloud, and in their own unique applications that they can build on our Force.com platform. This is the time to do it, because this is when people need it: their IT budgets are tight, their business situations are critical, and their old-world software vendors are taking care of themselves instead of meeting the needs of their customers.

We’ve raised people’s expectations for better alignment of business value with IT cost. We’ve earned our leadership position in enterprise cloud computing. It’s time for us to set people free from paying more and more to get less and less. It’s time for The End of Maintenance.

Aloha,

Marc”

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

I would pay attention to what the US Copyright Office decides based on their review – and on the results of the lawsuit itself.  While I still strongly believe that US intellectual property right laws are able to handle new technologies… I’ve become a little concerned about how the courts have been reacting to various claims (as well as legislative moves like the DMCA).

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

I’m more concerned at the moment with the opportunity for re-negotiation because this opportunity does actually exist.  But it’s an opportunity that ALWAYS exists.  The current economic situation is merely bubbling the issue to the surface.

Now, I’ve literally just spent the last half-hour writing and re-writing an attempt to eloqently and gently explain how negotiations are supposed to work and how they’ve not really worked over the last few years due to bullies (both on the vendor and customer sides of the transactions).  The truth, however, is that there isn’t a nice way to explain it.  The negotiation situation has been bad and it continues to be bad – even after the current downturn has made everyone more acutely aware that bad deals are worse when the economy turns sour.  So I’m just going to be really blunt.

Folks: do good deals.  Work well with each other to make sure that each party’s true needs (and a few of each party’s wants) are met during the deal.  Look deeply into the financials of the deal, as well as how they’re calculated.  Don’t guess, don’t assume, don’t overestimate.  Use real numbers, actual counts and a solid basis for each transaction.  Get rid of puffery, boasting, bloating and non-essentials.  If you only THINK or BELIEVE something is going to come to pass, don’t base the deal on it.  Rather, find a way to add it in as a POTENTIAL opportunity – a possible future transaction.  But don’t commit to an uncertain future.

In more Plain English™, buy what you need, sell what you have.  If you don’t need it or don’t have it, don’t do the deal.  Don’t use pretend numbers to support the transaction or the promise of potential to entice you into something that won’t work for you in the current state.  And don’t expect either party to return to the table when the economy goes bad or things don’t work out as planned for you.  Your problem isn’t THEIR problem.  (Perhaps you’ve heard this as “Poor planning on your part doesn’t constitute an emergency on my part.”)  And, for the people who are thinking it, this is not a situation for force majeure.  Economic fluctuations are understood and always possible.

Again, do good deals.  Apply the Five Fundamental Skills for Effective Negotiation.  If you need/want help, get it.  Oh, and contrary to what is happening with certain large industry players at the moment, don’t expect someone else to bail you out because you didn’t plan.  If you haven’t learned the lesson so far, let’s put it in Plain English™, too:  The economy swings both ways.  Unexpectedly.  More often than we’d like.  Regardless of your political leanings, fiscal and risk conservativism is always appropriate.

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

Facebook has announced that they plan to have members vote on the new Terms of Service they’ve been working on.  In fact, they even say that it’s been a group of Facebook lawyers and a group of law students.

Facebook lawyers, with the help of law students, have been reading the 3,000-plus comments, and the administrators of the original protest group against the terms of use changes are consolidating the feedback in a list of “key concerns,” according to Facebook. The company has also sought input from privacy, copyright, and Internet legal experts.

OK, so I’m glad that they’re seeking input from privacy and copyright experts, too.  Even more interesting, though, is that unless 7,000 people submit comments, they’re only going to take the response as advisory.

Facebook will hold a vote on any proposed change if at least 7,000 members submit comments. The results of the vote will be “advisory” if less than 30 percent of Facebook active users participate in the process. If 30 percent or more of active members vote, the results of the vote will be binding, according to Axten.

In theory, that’s very representative.  If the people don’t feel the need to vote, those that do shouldn’t be counted as a representative sample of the entire population.

But let’s also be honest and say that the average teenager does not have a complete understanding of copyright, privacy or any of the other potential legal issues strewn about a Terms of Service document.  To them, music has always been “free”, digital nannies are more effective at stopping them from copying Wikipedia articles for school papers than the fear of punishment, and privacy is something they can control through the use of fake identities online.  It’s not that they’re unable to comprehend, they just haven’t had to do so up to this point.  When given the choice of “Accept” or “Reject” when installing software… how many of you read the language and then click “Reject”?

So while I think it’s commendable that Facebook offer up it’s proposed ToS to the user population for a vote, I think it’s ultimately going to not be an effective means by which the “public” will get Terms of Service that are truly acceptable to them.  The simple truth is that Facebook is a service.   They offer it to the world for free and they have created a Terms of Service document which governs the user’s use.  If the user doesn’t like the ToS, they shouldn’t use the service.  Facebook should have some sort of internal moral compass to not do anything that’s a violation of their user’s rights (even if their users don’t fully understand such rights), but that isn’t a legal requirement.  At the end of the day, Facebook should post it’s Terms of Service in both legal and layperson’s terms – disclosing the good (and more importantly) the “bad”… in detail.

Hopefully, potential users can then make an informed choice about how they wish to use the service.

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.

Even President Obama was on camera, promising to do something about it.

The House of Representatives released copies of the contracts that are supposedly preventing the government from taking action on this.  Too bad they don’t have a contracts guy reading section 3.04(b) with any clarity:

“3.04.  Forfeiture of 2008 and 2009 Guaranteed Retention Awards as a Result of Termination of Employment of Covered Person.  If the employment (or, as applicable, consultancy) of a Covered Person terminates prior to payment of a Guaranteed Retention Award, the Covered Person will forfeit the right to such Guaranteed Retention Award in the following circumstances: [...]

b)  the Covered Person’s employment (or, as applicable, consultancy) is terminated by AIG-FP for cause (“cause” means conduct involving intentional wrongdoing, fraud, dishonesty, gross negligence, material breach of the AIG Code of Conduct or other policies of AIG-FP or AIG, or conviction of or entry of a plea of guilty or no contest to a criminal offense); [...]“

Given that the US Government now has a controlling interest in the organization, and given that the US Government has such an interest due to these executives’ imputed gross negligence (“recklessness and greed” according to President Obama), one would think that the US Government could simply fire these individuals – thereby preventing them from getting their bonus.

Just a thought… maybe I’m misreading something somewhere, but I don’t think so.  President Obama:  Please give me a shout if the AG needs some contract-review assistance. 

(Thanks to ContractsProf Blog for many of the links.)

[Update:  I guess there's always the IRS version.  I still think that 10% is too much of a bonus for these folks.]

The current economic situation is encouraging many organizations to reconsider their current contractual relationships.  Contact me before your opponent does to find out how to make the most of your renegotiations.  The Licensing Handbook Blog is the companion site to the Software Licensing Handbook. Covering licensing topics on a regular basis, Jeffrey Gordon attempts to offer advice, add humor and sometimes even a bit of wit to a practice that most people find abhorrent – namely, reading a contract from start to finish.