Monthly Archives: July 2009

Lease by XKCD

Another fabulous comic by Randall Munroe:



This Week on The Web for 2009-07-26

Forms and Templates

There are a lot of people pushing for contract process automation.  Ken Adams, famously known for his contract style manual, has been on this bandwagon for some time now.  Others are close behind – all trying to find ways to automate the parts of the contracting process that can be automated.

While I’m a big fan of gadgets and tools, and yes, even templates, I worry a bit about what is being offered by way of these various forms companies.  Recently, I wrote about WhichDraft – a good service with templates that (while I didn’t review all of them) seem to at least have been written by someone with knowledge of what is supposed to go in them.  On the other hand, I see hundreds of software developers looking online to find a sample agreement that they can crib for their own use.

I’ve tried time and again to express to these developers (and my fellow contracts professionals) that templates are all well and good – if you wrote them yourself or if you know and/or trust the author.  If, however, you’re simply grabbing whatever you can find – or using a pay service who doesn’t put the author’s name on the template, you might want to think twice. [In fact, I recently inquired of one such company and they wouldn’t even respond.]

IACCM and other contracting groups

I launched Skribit suggestions over a year ago to attract ideas for these posts and to-date, I have to say that it’s not been as successful as I’d hoped.  Either that means that I’m giving you all what you want, or you’re not seeing the suggestion box, or it doesn’t really matter and I’m just another form of entertainment.  🙂

In any event, I received the suggestion “IACCM” the other day.  No instruction, no guide… just IACCM.  Do you want dirt?  A recommendation to join?  Positive comments about the organization?  OK.  I’ll give you everything I know.

For contracts professionals, IACCM is one of three major (Caucus and NCMA are the other two), and a handful of minor, professional organizations you can join to hopefully provide you with resources and connections to other contracts people.  These organizations are membership-based, relying on membership dues along with other sources of revenue to exist.  Generally speaking, they all have some sort of platform to keep members communicating with each other (such as a forum), a resume/jobs area, and additional for-purchase information available to members (and sometimes non-members, too).  Oh, and they provide certifications, too.

As an association professional, my wife would kill me if I didn’t say that these types of organizations are indispensable.  And for the most part, I think she’s correct.  They provide immensely valuable information and networking opportunities and are a must-have for anyone who is new to the profession.

IACCM in particular focuses on the international nature of contracting and the special relationship between organizations dealing on a global scale.  They hold at least one annual conference both in the US and somewhere abroad. IACCM’s certification program is academia-based and is centered on a person’s history as a contracts professional and their contribution to the profession as a whole.  They offer a forum for members to discuss various topics, a jobs board and resume database, and they offer research reports based primarily on surveys of the membership.  From a business perspective, IACCM is a true association – a non-profit organization governed by a Board of Directors and managed by Tim Cummins and his staff.

Caucus is more US-based – and as a for-profit organization, is designed around a consulting practice whereby ICN consultants provide contracts and vendor management-related information to buyer-clients.  Caucus is, by their own definition, a procurement-only organization, founded under the belief that sales teams obtain thousands of hours of training a year and buyers get almost none.  As such, the one-sided viewpoint skews their offerings, but the annual conference and other provided training materials are well-received by the membership.  Like IACCM, Caucus provides a members-only forum to ask/answer questions of your peers and they have a certification program that is program-based (take course, take test).  As previously stated, Caucus is privately held and while members pay an annual membership fee, the organization’s behavior is guided by the owners of the organization rather than a Board.

NCMA – the National Contract Management Association is also an association governed by a Board and it is also the oldest of the three (since 1959).  It offers the same basic services, as well as certifications, but its unstated target membership is government-related contract professionals.  Membership in NCMA rewards you with extremely valuable government-related contracting information and even a quarterly magazine.

Overall, membership in these organizations can be quite rewarding and extremely valuable for the networking and basic business information received.  True value from participating in any of these types of organizations comes from the interactions between the members.  Certifications offer a less-experienced individual the chance to show dedication to the profession as well as base-line competency in certain key areas.  People considering membership in any group should pay attention to the benefits for membership, the cost and the target member profile.  If you’re not receiving value, ongoing membership isn’t necessarily beneficial and should be reviewed annually.

But again, remember, these organizations really only give as much as they receive.  In other words, if you buy-in and expect a core-dump from them to you, it simply is never going to happen.  You need to get involved.  Ask or answer questions in the forums; offer to teach if you’ve got the experience.  Attend the conferences if you’re financially able.  Above all, meet the other people at these events as they will be the ones sitting across the table from you someday.

The Value of Testimonials

If you’ve not seen the latest CarFax commercials, they’re pretty funny.  Essentially, the buyer wants to see the CarFax report and the seller doesn’t want to give it to them.  Here’s my favorite:

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?

This Week on The Web for 2009-07-19

Amazon’s Orwellian Behavior

As many are reporting, “recalled” an e-book remotely in response to a request by a publisher.  This is all kinds of scary and most folks are centered on the purely tangible nature of the problem.  I’m also concerned about the precent it sets, but I’m more concerned about the sapping of intellectual property rights that seems to be yet unexplored by these articles.

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’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.]

Why RFP’s Suck for Both Sides

RFPs suck for both sides of the equation. Bidders hate responding to them and the requesting organization hates reviewing them.


Well, because they’re time consuming… and each side believes that the other side is: 1) Only spending enough time to barely glean the financials off the top; 2) Inserting default language from prior RFPs which may or may not have relevance to the current project; and 3) Only doing this to appease some misguided sense of a “strategic sourcing process”.  These assumptions are all 100% true:

  1. Using RFPs correctly can be a valuable part of a strategic sourcing process.  But generally speaking, they’re hastily assembled, from a template, and sent out without consideration as to who will get them.
  2. Responses almost always arrive at the last possible moment – not because they’re the product of countless hours of taxing effort and meticulous drafting – but because they’re tossed in a drawer and forgotten until the last possible moment.
  3. Reviews ARE hastily done… with receiving “teams” designated to score RFPs by section but having no real training as to how to do it properly (usually because they didn’t spend enough time working on a requirements document for the project to begin with).

How do I know this?  Well, it’s easy, really.  After a decade of using them, I long ago learned to monitor the Word document’s properties for the RFP itself.  It’s where I’ve asked responses to come electronically, so I can see EXACTLY how much time has been spent editing the document.  Do I really think that it only takes an hour of editing to respond to one?  Ha.  Only if it’s a copy-paste job.

But I’d wondered what bidders were doing to monitor our review.  Now I know.  And I think it’s an excellent smack-down.  Reviewers SHOULD be held accountable for the efforts they ask others to expend on their behalf.  As time-consuming processes go, you should at least be willing to put in the effort to review something that you’ve asked someone else to create.  Oh, and by all means should you have LIMITED the number of potential respondents long before sending out the document package.

By the way, all of the food, drink and alcohol provided by these various agencies sure smacks of impropriety to me.  NEVER send a reviewing organization ANYTHING until after the deal has been signed… and then you’d better comply with that organization’s gift policy or you should expect to get it back.


Risk Matrix Available for less than $1

I was watching a video today by Cory Doctorow about the copyright wars.  He’s a great speaker and a wonderful author.  He gives away everything he writes for free.  Which is much easier for him, as a NYT best selling author.  🙂

But I would like to get the Software Licensing Risk Matrix out to many more people.  So, if you go to my Products Page, you find it available for $1.00.  That’s the cheapest I can go in the PayPal and Shopping Cart systems.

I think I can even go cheaper.  Which is to say, click here to download it for free.  If you like it, I hope you’ll come back and click the donate button below and I’ll leave it to you to decide how much you think it’s worth.

TWoTW for July 12, 2009

This Week on The Web.  Interesting articles, stories and thoughts from around the web this past week that are related to contracts, licensing, negotiation or law:


Corporate Insurance Blog

E-Sourcing Forum



Settle It Now Negotiation Blog

The (non)billable Hour