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.

• it’s French for “superior force”
• act of God: a natural and unavoidable catastrophe that interrupts the expected course of events  (WordNet)
• a common clause in contract which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties (Wikipedia)
• an unavoidable catastrophe (Wiktionary)

So what’s the common theme?  It’s the ability to AVOID a particular set of actions.  In other words, force majeure events are those which are unavoidable or unforeseeable.  If you only click one link above, do the one for Wikipedia and learn about the three-part test in French and international law for what constitutes a force majure event.  UCC Section 2-615, “Excuse by Failure of Presupposed Conditions” and the Restatement of Contracts 2d, Section 261 “Excused Nonperformance” also include multi-part tests.

But we’ve gotten lax in contract drafting in the US and folks have assumed that force majeure clauses (those that allow a party to not perform as a result of one of these types of events) were continually written with actual unavoidable events listed.  In fact, almost every force majeure clause I now see contains at least one, if not more, of the following things as force majeure events:

• strikes/labor disputes
• telecommunication difficulties
• supply chain problems
• terrorism and war (sometimes even phrased as “acts of the public enemy”)
• riots
• government regulation

Unfortunately, these are not force majeure events.  Why?  Because most of them can be planned for… and even something like terrorism and war (especially when they’re happening right now), should be planned for.  If you can plan for them, they’re foreseeable.  And if they’re foreseeable, they’re not unforeseeable.  See where I’m going with this? 

So when you strike these items out of the force majure event clause, you’re going to get push back because people don’t want to be responsible for planning in all eventualities.  You’re not asking them to do it.  Rather, you’re asking that contract performance not be hindered or halted as a result of things that are capable of having a backup plan.  Which means that you could, if you were so inclined, draft language which allows for these items to be force majeure only if they were part of a backup plan that still was impeded.  In other words, you’ll give these items force majure weight if the party claiming force majeure can show that they had planned for them properly, but still ran into trouble.

Oh, and by the way, force majeure also isn’t one-size-fits-all.  Would you EVER list telecommunication difficulties in a contract with your telephone service provider?  Additionally, force majeure protections should benefit BOTH parties, even if one party’s sole obligation is to cut a check.  Payment can be made quite difficult by floods and hurricanes, just ask the good people in Louisiana, Alabama and Mississippi about business deals during Katrina.

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 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.

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 truth of the matter is that the GPLv3 is a very restrictive license, in as much as it’s also a harbinger of freedom.  The GPL was written in a way to specifically retain the freedoms it grants through successive iterations of a particular product, or its add-ons.  This means that if you like a GPL product, develop a derivative work, a modification, a plug-in or any other type of add-on, the resulting work is also going to be covered by the GPL (you do not have a choice in this).

“You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License.” – Section 10 of the GPL

This means that unless the WordPress GPL (yes, they’re specific by product… you can ADD restrictions if you want… so no 2 GPL’d products are necessarily identically licensed – we’ll talk about this in a minute) allowed for a theme developer to restrict the distribution of a theme, a theme developer isn’t allowed to add that restriction on their own.  Your development on a GPL product inherits the license of the original product.

Inheritance is a powerful concept because it creates license congruity, ad infinitum, for all downstream works of the original code.  It would be extremely difficult to manage license compliance if WordPress had one license, but a plug-in had a different one.

But there’s apparently a wonderful new theme available for WordPress called Thesis.  Its developer sells two several different versions of the theme (selling under the GPL is fine).  The problem comes to light when you look at the options:

1. Personal:  one site only; footer link must remain intact; can’t re-sell theme or modifications
2. Developer:  can create multiple sites and must pay Thesis developer for each site deployed; can remove footer link; can’t re-sell theme or modifications

And these options are problematic because they violate the GPL v2 under which WordPress is licensed.  Specifically, Section 2, which states, in part:

“You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License.”

and Section 6:

“Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute or modify the Program subject to these terms and conditions. You may not impose any further restrictions on the recipients’ exercise of the rights granted herein. You are not responsible for enforcing compliance by third parties to this License.”

(Note that v2 and v3 of the GPL are vastly different animals… and v2 was actually more in the realm of “free as in free beer” than v3, which touts freedom as “free as in free speech, not free beer”.)

So, in fact, the Thesis theme, as a WordPress derivative work, is bound to the GPLv2 license that WordPress is licensed under.  As such, even the sale of the theme is a problem, as are the one-site-only restrictions and the “can’t re-sell” restrictions.  Note: the footer link restriction is probably fine, as it could qualify as the attribution allowed under the GPL.  Additionally, it could be argued that the fee charged is for the “physical act of transferring a copy” as allowed by Section 1 of GPLv2, but even then, the remainder of the unauthorized restrictions are still problematic.

But who is going to do anything about this violation?  Who has the right to enforce the license?  WordPress?  The folks at b2 (WordPress’ predecessor)?  Any particular end user?  Technically, it’s the folks at WordPress who have the right to enforce their license upon theme and plug-in developers.  They have the ability to potentially even sue to prevent a rogue developer from violating their license with WordPress [though I'm guessing that a theme developer is going to try to argue that a theme isn't a derivative work or a modification].  But this is inherently difficult.  So instead, WordPress is taking a slightly different tack.  They’re going to create a Theme Page on the main WordPress website which only lists themes that follow the GPL (by the way, all derivatives have to be GPLv2 licensed, as the WordPress license doesn’t allow for newer versions of the GPL to apply).  I’m guessing that Thesis won’t be listed.

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 was looking for some insight that I might have missed.  In the world of contracts, your license actually will specifically state who has the ability to audit your license usage (if they have the right at all).  And in the world of law, the term “standing” is used to show who actually is allowed to raise a particular issue (via the courts, etc).  So the SPA/BSA/SIIA (SIIA is their current incarnation) (or any other third-party “enforcer”) wouldn’t have the legal right to ever come in and audit your software license use unless there’s language in the license that allows for such audit.

Even general audit language is probably safe to prevent the SIIA from knocking on your door one day.  Typical audit provisions include:

• explanation of who can come to audit (it usually says that the vendor has the right to audit)
• time-frame of any audits (I typically am very clear to limit audits to 1 time per calendar year)
• notice for audits (even bad audit language usually says that the vendor has to notify the licensee of the intent for an audit)
• who besides the vendor can come audit (if 3rd parties are allowed, I limit to a “big-four” accounting firm and have NEVER been challenged on this limit)

The result is that even with not-so-favorable audit language, I simply don’t see how the SIIA has any right to come and perform an audit, let alone try to sue a licensee for license violations (again, any license that has “no third-party beneficiary” language in it could be used to very clearly show that the SIIA doesn’t have any rights with respects to the license).

Additionally, it’s been suggested that there are two other routes to allow such an audit: the “source” (the licensee’s employee who reports a violation) and the potential for an assignment of audit rights.  As for the source person, unless they’re also the person in the company who can allow someone to come in, that individual probably doesn’t have internal authorization to allow the audit to happen – so I find this unlikely.  The assignment of audit rights potential does exist, and contracts that have poor assignment language could potentially allow the vendor to assign their rights to someone else (and, in fact, it appears that the SIIA attempts to use an assignment of rights in this manner).  So it’s conceivable, but I’ve never seen the language used in that way.

At the end of the day, the lesson is this:

1. Have strong audit language which clearly states who can perform the audit, on what time basis they can audit and what the results would mean (ie: usually you don’t have to pay any form of penalty unless usage exceeds 10% of the licensed quantity – but you’ll always have to pay for the difference in usage).  Include notice provisions and be very clear about whether the vendor can outsource their auditing… many will use large auditors, which is fine, but you don’t want Andy’s Audit Shack to be performing the audit.  Lastly, if you’re maintaining any kind of uber-confidential information (like SSN’s, bank account numbers, etc), then I would also be clear about what kinds of auditing tools can be used to complete the audit, as many vendors like to install their own auditing software onto your network.
2. Have clear assignment language which prevents EITHER party from assigning the agreement without the other party’s consent (not to be unreasonably withheld, if you so choose): “Neither party may assign or otherwise transfer this Agreement or any of the rights hereunder, without the prior written consent of the other, which consent will not be unreasonably withheld or delayed.”.

OK – so you’ve done the prior two things and the SIIA comes knocking (physically or with a letter requesting/demanding an audit).  What do you do?  Simple.  Deny them access – in writing.  They’ll threaten, similar to the Big Bad Wolf, to huff and puff and to blow your house down.  But if you’ve got things properly documented, the SIIA simply doesn’t have the legal right to audit.  It doesn’t matter whether the vendor they’re supposedly auditing for is a SIIA member.  It doesn’t matter if they claim to have permission.  (Oh, and interestingly enough, if they name names and tell you which vendor sent them to you, I would check your license agreement with that vendor because many vendors like to include confidentiality restrictions which prohibit either party from even identifying the other.)

Now, regardless of everything I’ve just told you, I also firmly believe that you should always be 100% compliant with your contractual obligations.  So use some form of license management tool to know that you’re only using what you’re licensed to use.

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 @raesmaa: Do your lecture notes violate your prof’s copyright? Holy crap! http://bit.ly/1yyPoT < Read comment #8 for the best analysis.
• RT @CopyrightLaw: “Focusing In On The Value: Google Books Provides An Amazing Resource” http://bit.ly/3d8YJB < Ends do not justify the means
• How to Avoid a Bad Bargain: Don’t Threaten: http://bit.ly/zPEzF
• Second Life sends TM infringement notice to SL educators: http://bit.ly/4qA2XO
• RT @gfiremark: New case throws cold water on constitutional challenges to statutory damages awards http://bit.ly/123lyz
• RT @CopyrightLaw: “Ideas, originality, and copyright. Coldplay accused of infringement again.” http://tinyurl.com/y8krmku
• RT @DanaNewman: Apple and Eminem settle copyright infringement case: http://bit.ly/22VfWw
• RT @fscavo: “Safe to say that the stimulus bill has been a failure” http://bit.ly/Y0TMY
• RT @vpynchon @cbsalary: First Court Order Served Via Twitter http://bit.ly/LQYRc
• RT @richards1000 @copycense Sweet: Complete collection of all USTR Special 301 Reports from 1989-2009 http://bit.ly/4xOXbX
• RT @CopyrightLaw: “Court rules (again) that Vernor can sell Autodesk software” http://tinyurl.com/ydm65tk
• RT’ing original thought w/o attribution is a copyright violation. Grrrrr.
• National Archives may have leaked data on 70M vets. But don’t worry, the contractors signed a privacy policy. http://bit.ly/13Y7o8 Oops
• Amazon clarifies their Kindle book deletion policy: http://bit.ly/ESmwq
• RT @DanaNewman: Copyright Alliance asks Obama to support creators’ rights: http://bit.ly/18GR4T
• RT @nikiblack: “Is Twitter Grounds for Trademark Infringement?” | Corporate Legal … http://bit.ly/3ubzCM (via feedly)
• @kevino80 Actually, the BSA really can’t audit anyone. People only believe they can.
• RT @DeistPatriot: “Let us never negotiate out of fear. But let us never fear to negotiate.” – J.F.K. #tcot
• RT @mgmtmatters: The single most important thing to figure out during a negotiation – the other party’s position <Wrong. Know YOUR position.
• “I just stole a baby’s intellectual property.” – Modern Family <– Awesome.
• RT @vpynchon: Greatest predictor of long lifespan is being appointed to US Supreme court < Hehehehe. Awesome.
• RT @raesmaa: Nice blog on negotiations but seen that win-win is worth zero when a lawyer compensated for avoiding risks http://bit.ly/phaF1
• RT @maryadamsICA: New blog post: What’s the Right Definition of Intellectual Property? http://bit.ly/QKX5r
• RT @raesmaa: 1990s question for IT vendors – what’s your sales model? 2010s IT – what’s your scales model? (via @monkchips)
• RT @BrettTrout: Microsoft gets $388M patent infringement judgment tossed out http://is.gd/3OUWc
• RT @drjimanderson: He Who Works the Hardest Wins the Negotiation: http://EzineArticles.com/?i…
• New post at licensinghandbook.com : Response to 50 Tips http://bit.ly/pdBsc
• @DanaNewman I love Track Changes (one of only 10 key Word features that should exist). 24# paper? Please. I’m happy if it’s signed.
• RT @smallfirm Berge’s 2nd Principle of Practicing Law, “Sue solvent defendants.”
• 50 Tips for Writing a Contract http://bit.ly/MON8g (HT to @dananewman for the link) < But only abt 30 of the tips are actually good ideas
• RT @DanaNewman: Judge tosses out remaining claims against Disney in long-running Pooh copyright case: http://bit.ly/ZmtlV
• RT @GregBufithis: RT @JanusPatents: Patent BlackBerry Battle: RIM/NTP Patent Case Takes New Turn http://bit.ly/7lztW < NTP not satf w/ $612M
• RT @TradeSecretLaw: Intangible assets make up 75% or more of your company’s value. Can you identify your intangible assets?
• RT @CopyrightLaw: “Corporate Reorg Caused Breach of Non-Transfer Provision of License” http://bit.ly/IJKVR < I want to see the full license.
• RT @CopyrightLaw: “I wish law professors realized that’s what lawyers should always do.” http://tinyurl.com/ydf34o4
• Apple Introduces New Educational Software Licensing Program for Institutions: http://bit.ly/TgbuY (via MacRumors.com)
• RT @GregBufithis: RT @dnball Licenses to use intellectual property are not transferable unless that right is in writing http://bit.ly/UTMPe
• RT @gtiadvisors: Mega-Breaches Employed Familiar, Preventable Attacks http://bit.ly/W3bHP < Which is why I won’t remove cont’l liability.

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.

• 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
• RT @raesmaa: Every person … of restless mind writes a book. From Predictions for 1993 (1893). http://bit.ly/HA8UY < It’s the internet.
• 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
• RT @blawgreview: Negotiation 101: Gender War Or Gender Peace And Prosperity? http://tinyurl.com/m4ewy6 (it’s @vpynchon, no less!)
• RT @DanaNewman: Fergie named in copyright infringement suit over “Voodoo Doll:” http://bit.ly/8JLEY
• RT @bethanyriskin @stacyrea: Leader Test: When your team members “fail,” do you wag your finger or extend a hand?
• New blog post on licensinghandbook.com: Contracting as a Specialty: http://bit.ly/iCFYQ
• RT @richards1000: “Professor Posts ‘Illegal Copy’ of Guide To Oregon Public Record Laws” http://tinyurl.com/kq35dc (via @CopyrightLaw)
• RT @BrettTrout: IBM’s new strategy: Open Innovation. http://is.gd/3o3DV < About damn time.
• RT @gtiadvisors @lawyerist: Lawyers do Love Arguing http://bit.ly/1uzoJ5 < Remember, though, that arguing isn’t negotiating!
• Open Source Business Models: http://bit.ly/EVvXC (by @stephenrwalli)
• Listening tips from a Hostage Negotiator: http://bit.ly/WUEMn < These are great… esp #2.
• New blog post: Business Continuity http://bit.ly/1dwMvn
• DOJ may revise eDiscovery procedures after 9th Cir ruling: http://bit.ly/ZNlet
• Apple pushes to change subscription accounting rules: http://bit.ly/Mjf4z < RevRec lesson of the day
• RT @kottkedotorg: Protecting yourself from your own irrationality http://bit.ly/12nj3M < Excellent negotiating advice!
• RT @AdamsDrafting: Blog Update: Lawyer and Contract Manager: Compare and Contrast http://bit.ly/KwMKo
• RT @uMCLE @SCartierLiebel @GabrielCheong: Agreements on Sex in Prenups http://bit.ly/4xnvsu < Love this lesson on contractual severability.
• RT @bobambrogi: LawSites blog: Free Site Enables Document Assembly http://bit.ly/vda1A (@jasonanderman)
• RT @bcuban @Smartalyx @Lotay: A blogger who gets a product (before/after a post) doesn’t disclose has ethical probs. Do you agree? <Agree
• RT @uMCLE @steigerlaw 16 Major Studios Sue ‘Ellen DeGeneres Show’ for 1,000+ copyright violations http://bit.ly/cSI6D < hehahahahahah
• Great negotiation advice: http://bit.ly/1dY7du

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.

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.

• no one wants money but everyone wants something that money can buy: http://bit.ly/KGzyN (@vpynchon – even if she’s on vacation)
• BSA softens anti-piracy msg: http://bit.ly/2027C Too bad there’s not an attempt-version of piracy yet … overstepping even in humor.
• RT @PeterKretzman @DavidLinthicum @dhinchcliffe: An Analysis of the Top Cloud Vendors’ cost: http://bit.ly/fIYJw.
• RT @jayshep: Lawyers are saving the world … with disclaimers: http://bit.ly/803Zp (via Client Revolution)
• New blog post: Library of Congress http://bit.ly/9Vrvl
• Just started a Twibe. Visit http://twibes.com/softwarel… to join.
• RT @vpynchon: Just joined a twibe. Visit http://twibes.com/attorney to join
• RT @gtiadvisors: RT @LexMonitor: RT @carmenhill: Social media policies critical for reducing legal, business risks http://bit.ly/uFfBU
• Just started a Twibe. Visit http://twibes.com/negotiation to join.
• Just joined a twibe. Visit http://twibes.com/Supply_Chain to join
• RT @dahowlett: Blogged: Friday rant: Software maintenance; it’s all Manny’s fault – http://bit.ly/AgmU7 – hat tip @monkchips
• RT @PeterKretzman @samj: Twitter’s trademark on Twitter is questionable http://bit.ly/MrI1q (PK: Twitter again shoots self in foot)
• RT @gtiadvisors: RT @jayshep: Great noncompete roundup from Trade Secret Noncompete Blog by @russellbesq: http://bit.ly/12VjKM
• RT @gtiadvisors: RT @GaryHonig: The 10 Stupidest Tech Company Blunders http://tr.im/wJI5
• RT @ManVsDebt: How to Deal with a Bad Deal – http://cli.gs/sR8uUR – (via @mattjabs on @fcn)
• . @vpynchon on Breaking through negotiation impasses. http://bit.ly/1yxhC5 If you’re not already reading Victoria, start now!
• RT @DreamSimplicity: Coupa SaaS Procurement offered Free to Government: http://tinyurl.com/l5hkco < dunno if it’s any good, though
• @SethGrimes @fscavo here’s another thought. Both OSI and FSF require freedom… both also require eventual free “beer” too.
• @SethGrimes @fscavo I think u should read GNU’s explanation first: http://bit.ly/AdeF an example OS isn’t necessary to prove one COULD exst
• RT @fscavo: Seth Grimes has it exactly backward: open source is free as in “free speech,” not as in “free beer” http://is.gd/2mRl1
• RT @iasta: Identifying and Controlling Hidden Costs: Why are inbound shipments unique? http://bit.ly/2uKggU
• RT @gtiadvisors: RT @BobWarren: 12 Negotiating Tips for Job Seekers http://tinyurl.com/l677wl
• RT @fscavo: Brian Sommer takes a humorous poke at vendors who are less-than-transparent in their public conference calls http://is.gd/2n5Y3
• Monetizing potential infringement instead of suing (or issuing takedown notices): http://bit.ly/yWy0n < good job Google and Chris Brown
• Mastering the art of everyday negotiations: http://bit.ly/JB3hU (from PsychologyToday) < always remember that everything is negotiable
• Maximizing value of software IP: http://bit.ly/eObWI < good info, esp for developers just starting out on their own
• (@spendmatters) on M&A due diligence in S/W world: http://bit.ly/s6Fo2 < thanks for the chance to share, Jason
• Ways consultants get burned in their contracts: http://bit.ly/QxSuL Call me for help if you’re in a similar situation.
• RT @SE_blog: Negotiating w/ Sole Source Vendor http://bit.ly/niu8g “Bring in the Heavies”

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 @gtiadvisors: RT @AdvertisingLaw: Blog Post: Content Protection and Copyright http://bit.ly/1Q0CX
• New blog post: Confidentiality Exclusions versus Disclosures http://bit.ly/4qYdND
• Tech workaround could allow MS-Word sales to continue: http://bit.ly/haM2S
• If you buy/sell software, get your free copy of the Software License Risk Matrix: http://bit.ly/14AJ0E
• . @insurancecvg on Coverage Disputes over Data Breaches: http://bit.ly/zaK87
• RT @ManVsDebt: frugal misery… when people try to apply cost-cutting tactics in areas that have a high personal value: http://bit.ly/rUDJ3
• I have available time for a new client if anyone is looking for ways to save money on IT procurement-related spend. Give me a buzz for info
• You don’t get what you deserve, you get what you negotiate (@activegarage): http://bit.ly/vW2KU
• RE: @park3 Thanks Jay. I’m still not sure that the distinction you point out really changes the analysis. Even in a… http://disq.us/1szo
• Who do you think is the best negotiator? 10% say William Shatner. Seriously? http://bit.ly/tP1SA
• RE: @park3 I don’t know that there is a rule. In fact, after years of thinking about it, the only rule is that there i… http://disq.us/1sxz
• Microsoft software clampdown nets 11 firms (via ZDNetUK): http://bit.ly/fVRFs
• RT @gtiadvisors @taxgirl: http://bit.ly/rPlPd < Why I recommend negotiation experts over corporate lawyers.
• RT @skydiver: http://bit.ly/JetPass – all you can fly in one month on jet blue – $599. < Sourcing folks should watch how this plays out.
• RT @gtiadvisors @colleencunningh @CoreyVickers @BettyFeng CFOs ignoring supply chain risks http://bit.ly/qtgK8 < I knew it… crap.
• RT @drjimanderson: Classic Sales Negotiation Tactic – I’ve Got to Talk to My Boss: http://bit.ly/wYU4j < Power tactic, learn to respond
• RT @harrymccracken: Texas Judge tells Microsoft to quit selling Word: http://bit.ly/ybXzR < This doesn’t affect current owner/users of Word
• When describing calculations in contracts – SHOW AN EXAMPLE, it might save your butt later! (@ontechcontracts): http://bit.ly/NXrsr
• New blog post: Jeff Gordon Quoted on SpendMatters Today http://bit.ly/zPTbo
• Simon Cowell’s lessons in salary negotiation http://bit.ly/1Es4p
• Thanks to Jason Busch (@spendmatters) for an opportunity to talk about M&A wrt licensing deals: http://bit.ly/ANzzA
• RT @fscavo RT @rwang0 Hearing about how hard it is to leave some #saaS vendors. Automatic renewal may not be the way to go! < Same here
• Follow the Five Fundamental Skills for Effective Negotiation and this won’t ever be an issue: http://bit.ly/oKM7J
• RT @ontechcontracts 3-step way to ID contract contingencies: http://bit.ly/N7Ldu < I was just talking about this. Good article!
• RT @fscavo: Stupid contract clauses that hinder business partner relationships http://is.gd/2aOYc Good post by @Figliuolo
• RT @WieseLawFirm: Thoughts on developing leverage and why it’s important in negotiations: http://is.gd/2aE28 < I call it Power in the FFSfEN
• Privacy policies just got interesting in ME (and applicable to everyone doing anything online): http://bit.ly/FFtYn (HT to Deena Burgess)

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.

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.

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.

And, even if you could, your organization probably doesn’t have tracking enough to make it possible – just remember that if you overuse your permitted license count, chances are there’s another provision in your license that allows the vendor to charge you (perhaps at non-discounted pricing) for the overage.

What I DO like about Ray’s suggestion is that idea that you should try to negotiate for a recapture of maintenance fees on unused licenses.  If you can’t resell them, the least you can do is take an annual count and only pay maintenance on the ones you’re using.  There is, of course, trouble with this thought, too – as there are some vendors that used to allow this (the last one I remember was Autodesk).  But the trouble is that you can get into a situation where you only upgrade SOME of your licenses to the current version because not all of them are currently covered by maintenance and the upgrades provided under such program.

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.

Granted, this has nothing to do with software… but it has everything to do with copyright.  So it’s still applicable. 

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.

If any particular state adopts these rules, I will probably recommend what commenter Sean Hogle recommended – the addition of yet another disclaimer.

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 Ideological History of the Supreme Court of the United States

A White Paper on Insurance Coverage for Cyber Security Losses (e-mail required)

The Applicator on “Chiseling on Demand”

Thirty Interview Questions You Can’t Ask and Thirty Sneaky, Legal Alternatives to Get the Same Info (hat tip to D.C. Toedt)

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.

I won’t bore you on the whole history of the UCC, or UCITA for that matter.  What you need to know is the basics.  These two bodies of law are “models” – written by extremely gifted legal professionals and designed to “harmonize” behavior between the states.  This is important because where Federal law doesn’t tread, each state can act independently.  When commercial transactions are involved, Federal law perks up and starts to notice, as the Commerce Clause of the US Constitution tries to keep commerce flowing between and among states.  The Commerce Clause is the reason why UPS or FedEx can ship from one end of the country to the other… and why you don’t have UPS-Indiana competing with a UPS-Illinois.  But states don’t like the Federal government leveraging the Commerce Clause on them – so they try to work out basic rules that can apply to transactions uniformily.  Hence the “U” in each of the above two models.  It stands for “Uniform” – with the intent that each state (perhaps with slight modification) will enact a form of the model laws so as to create a smooth playing field when dealing with issues that involve more than one state.

Commerce isn’t the only playing field of course (criminal law, for example, is another area where folks attempt harmonization).  But it’s a biggie.  And commercial transactions involving software have somehow seemed to be confounding for quite some time.  As better explained here, the UCC was modified in the 90′s to try to include software (the UCC was originally written for hard goods).  That really didn’t work out so well, and they tried again with UCITA.  For a variety of reasons (most notably, the feeling by buyers that UCITA was severly biased towards software publishers), lobbying efforts were successful in blocking the passage of UCITA in almost every state – and, as noted previously, several states even passed laws which prohibited UCITA’s application in their state.  It was seen as one of the largest failures of its kind.

But the American Law Institute doesn’t seem to know how to call it quits.  They’re trying again with the release of the Principles of the Law of Software Contracts.  As I understand it, Principles are less than models (ie: no “U”).  However, I’m just not sure that they’re even needed now.  Software licensee’s and licensor’s have been chomping at the contractual issues now for almost 40 years.  I don’t believe that the Principles are necessary – and by the time they’d even gain traction, some new software licensing model will invariably come out and introduce some wrinkle not previously covered by the existing Principles.

So while I applaud the ALI for working on this effort, I just don’t know that it’s worth their time.  Because remember, even if these Principles are followed by someone, they don’t have to be (they’re not designed to be enacted into law, merely serve as guideposts).  But even if they WERE law, they can be completely disclaimed.  Which means that panicky articles like this are also not really true.

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.

Several services have popped up recently that are allowing content to move from one format to another – especially on Amazon-related products and platforms (ie: the Kindle).  More specifically, Amazon is now allowing blog authors to license content for packaging and distribution on the Kindle, with the blog author receiving about 30% of the revenue generated from the license price.  So, if I were to want this blog to be available as a Kindle subscription for say, $1.99, I would get $.31 for every subscription.  But there’s a problem, Amazon has a license agreement that I would have to accept in order to make this happen.  And this license agreement also gives Amazon the right to bundle and resell my content in other forms, too, without paying me for it at all.  [For a full conversation on this, see this great post by Edward Champion.]

Additionally, Amazon’s current system doesn’t actually even check to see if I’m the owner of the blog I’m submitting into the Kindle Blog service!  So I could create an account, submit any of your blogs as my own, and in just a few clicks, create Amazon entries for your blog’s content – even competing with the “real” listing (if you so happened to have agreed to the terms as well and started using the service).

So, for the record, while I love Amazon for a bunch of reasons, this blog is NOT being made available as a Kindle subscription.  It is, however, being posted ON Amazon as part of Amazon’s author services… so you can read the individual postings if you go to the Software Licensing Handbook page at Amazon.  But if you happen to see it on your Kindle device, you’re paying someone else for stolen content.

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.

Brands, Trade Names, Monikers, Handles, etc. – these are all things that are typically covered by Trademark protection.  While it’s obvious today that a large company would register their domain name (www.largecompany.com), people quickly forget that new services offer new potentials for name registration: Facebook, Twitter, MySpace, etcetera – each require a new registration.  Of course, at one time, domain names weren’t as common and even The Coca-Cola Company went through an exercise with a third party who had registered coke.com.  But today, it should no longer come as a surprise to anyone that if you want to maintain your presence on each of these services, you have to register – especially if you’re not as large of a company to have a world-wide presence.  In fact, as I pointed out to James, his organization’s name (redmonk) might be common with another person in another part of the world.

Given that trademark registrations are regional in nature, it’s conceivable for two or more organizations to have a common claim on a particular name.  And it’s also possible, if you’re a coke provider (a coal residue), or any number of people with a last name of Coke, that you have a reasonable desire for a coke-related name.  But if you’re a Twitter user, for example, you’ll know that there’s only one option for a given name.  If you want @coke, you have to be the first to register the name.  How do you resolve this within the law and within any notion of fairness?  Well, with respects to domain names, ICANN basically ruled that if you had a legitimate claim on a name (such as those listed before) – or if you liked a particular domain name for your own personal use (and you weren’t squatting – trying to extort a trademark owner for ownership of the domain name), then it was first-come-first-serve.  The same is now true with these other services.

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.