Monthly Archives: August 2009

This Week on The Web 2009-08-30

The things that happened around the web this week – maybe you already read about them, maybe you need to again.

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 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.


My Lego Love is Fast Fading

I’ve loved Lego since I was a little kid.  I haven’t really counted, but I’m guessing I still have (in large crates in my garage) somewhere around 300+ Lego sets of varying size.  There’s something about allowing your creativity to roam that really interests me.  And as a company, the Lego Group has also been of keen interest from an intellectual property perspective ever since they started becoming sticklers about calling Lego blocks “Lego Bricks and Toys”.  But I think they’ve crossed the line recently with a “rejection” preventing the mock-rock group Spinal Tap from including a Lego-brick-based stop-motion video on their latest DVD.

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?

Jeff Gordon on Supply Excellence

Justin Fogarty from Supply Excellence e-mailed last week and asked me (and some others as well) about what we thought would be the biggest supply chain risks in a recovery.  He was kind enough to think that my response on “Instant Amnesia” warranted a guest post on Supply Excellence.  Thanks to Justin for the opportunity!

More on Trust

A few months ago, I wrote that you can’t contract trust – that if you don’t trust someone, the contract isn’t necessarily going to help.  D.C. Toedt picked up the baton and discussed how parties can help build trust between two parties (presumably who do not have an existing history).  I really liked his points on the prenuptual provisions folks could employ and I was struck specifically on his followup point that merely proffering a balanced document to start contract negotiations could set a positive stage.  I hadn’t really given it too much thought before, but I realized I’m biased based on the first document I receive prior to the start of negotiation.

I’m sure it sounds silly.  Heck, it sounds silly to me.  Even though I consider myself fairly introspective, I hadn’t considered this bias before.  I hadn’t considered that I prejudged my negotiation adversaries based on a piece of paper.  But there it was.  I am a balanced-contract bigot.

I do not think well of people who allow unbalanced template contracts to leave their outbox headed in the direction of  I don’t like the language, I don’t like taking the extra time spent reviewing such agreements, I don’t like re-inserting and re-balancing the same typically imbalanced sections over and over again.  So once I am forced to do it, I hold it against the people who sent me such an off-kilter document.

This isn’t good.

First of all, it’s probably not their fault.  Most of the contracts people I meet didn’t write their own templates – and those that do, probably have to cede control over the final verbiage to another set of individuals.  Second, even if they did write the language, there’s a certain amount of zealous advocacy I respect and admire that comes out as one-sided contract provisions.  But overall, as a professional negotiator, I believe Herb Cohen got it right when he said that our job is to “care, but not that much.”

I also think that I’m biased because even when I don’t have complete control over templates used by my myriad employers, I always try to encourage contractual balance … especially in those contract sections where I know balance will eventually occur in each negotiation.  (Quite frankly, it’s a time waster to have to re-negotiate each of those sections and I’d make those recommendations if for no other reason than to save myself effort.)

So the lack of respect I feel towards people who allow these imbalanced agreements to come my way at least affects my very first impression and initial response.  This can come across in any number of emotional behaviors (I can be pissy, stand-offish, brusque, curt, argumentative, etc).  Note that none of them are positive emotions.  So what do you think the other sides’ response is to my behavior?  Typically, it’s mirroring (and not the positive kind).  In the end, my behavior contributes to the destruction of trust.  Not a good place to be to successfully negotiate an agreement.

What do I do?  The bias is there.  And I’m never going to be happy about imbalanced agreements.  Well, I can:

  • start by making sure that I continue to advocate for balanced contract provisions based on actual risk allocation;
  • check my attitude at the door when I receive a new agreement and remember that the person who sent it didn’t necessarily control the drafting;
  • ask for a more balanced agreement to serve as the starting point (if the other side doesn’t have one, we can always use mine); and
  • do as D.C. suggests and proactively note the balanced provisions in my template when I send it.

Perhaps, most importantly, I can remember that I am 50% of the trust equation and need to act in a manner both deserving and proffering of trust.  Thanks to D.C. for reminding me of one of my responsibilities as part of the negotiation process.

This Week on The Web 2009-08-23

The things that happened around the web this week – maybe you already read about them, maybe you need to again:

Library of Congress

I visited the Library of Congress about a year ago on a quick trip to DC.  I figured that stopping by the Library to see if the Software Licensing Handbook was actually on a shelf wouldn’t hurt (yes, it’s a little egotistic, but everyone needs a boost every now and then).  The process to actually browse the stacks, however, is fairly involved.  You have to obtain a Library of Congress reader card.  This involves payment of a fee and a photograph which eventually results in a hard plastic ID card.  Taking the card to the librarians enables you to retrieve a book to sit and read.  But when I asked the librarian for a copy of the Software Licensing Handbook, they didn’t have one on the shelf.  I was crestfallen.

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

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

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

This Week on The Web 2009-08-16

The things that happened around the web this week – maybe you already read about them, maybe you need to again:

Confidentiality Exclusions versus Disclosures

When dealing with confidential information, one of the key areas of concern is where information that would otherwise be considered confidential loses its protection.  In most contracts, there are four situations where confidential information ceases to be confidential information and can be released.  Information that:

  • was in the public domain prior to, at the time of, or subsequently to disclosure;
  • was in the lawful possession by recipient prior to disclosure and was not already covered by a confidentiality provision;
  • is subsequently acquired by recipient through lawful means from a third party who is not under an obligation of confidentiality; or,
  • is subsequently developed by recipient without use of or reference to the confidential information.

For these four items, information that was confidential now is not.

There’s a fifth reason which would allow for disclosure, but I argue, shouldn’t change the nature of the information from confidential to non-confidential: disclosure pursuant to court order or legal process.

In this fifth scenario, we’re talking about a situation where a court of competent jurisdiction orders the release of information, usually to the court, as part of a judicial (or extra-judicial, like arbitration) process.  The information is going to be disclosed because of it’s probative value – that simply because it’s confidential doesn’t mean that the court shouldn’t consider it as part of whatever is the subject of the litigation.

But that doesn’t mean that I want that information to change status to non-confidential information.  Rather, what I want is to keep that information confidential even AFTER the judicial review.  This is possible through the use of protective orders and other legal procedures.  But if your contracts say that a judicial process will change the information’s status to non-confidential, a single well-strategized lawsuit can unintentionally release a lot of otherwise-confidential information into the public domain.

The best way to handle this is to make sure that your confidentiality provisions clearly segment release of confidential information pursuant to a court order from the other four reasons by which confidential information becomes non-confidential.  Additionally, include language that requires the disclosing party (the one responding to the court order) to:

  1. Notify the owner of the confidential information that such court order is being pursued/followed/responded to.
  2. Reasonably assist the owner of the confidential information in obtaining any available legal protections.
  3. Only disclose the specific confidential information requested by the court order (not just hand over everything).

Jeff Gordon Quoted on SpendMatters Today

Today’s edition of SpendMatters discusses merger and acquisition issues as they relate to software licensing.  Jason Busch was kind enough to seek my opinion on the matter and through my long and winding response, he pulled out the best nuggets.

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

This Week on The Web 2009-08-09

The things that happened around the web this week – maybe you already read about them, maybe you need to again: