Category Archives: blog

FTC Required Disclosure

The FTC now requires bloggers to disclose what they’ve received for free.

I was about to say nothing when I remembered that I received a copy of H. Ward Classen’s A Practical Guide to Software Licensing for Licensees and Licensors.  It took me so long to read and review that Ward probably regretted even having a copy sent to me.  But I got it for free nonetheless.  Oh, and if you want to send me something for free… I love freebies.  Just remember that I’ll now disclose that I got it for free.

But I think the FTC’s missing a real opportunity for regulation.  I think people who send out free things should disclose from whom they’re attempting an endorsement or comment.  I’ll even go first because, frankly, I only send things to people I know and respect and who would actually have a use for what I’m sending.  This, by the way, is also a great list of folks that you should be following/reading (in alpha order):


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.

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.

Novatus Contracts Summer 2009 Promotion

I just received notice that Novatus has created a promotional pricing offer valid from June 1 to September 30, 2009, which includes low-cost licensing options, rapid deployment and pay-as-you-go licensing – no commitments required.  Released in light of the current global economic condition and Novatus’ desire to address prospective client’s budgetary requirements, the best contract management system just became easier to adopt.  To learn more, contact me here (select Novatus from the drop-down menu).

About Novatus, Inc.
Novatus delivers contract, compliance and supplier management software via On-Demand SaaS delivery and On-Premises installation. With a focus on customer driven requirements, mobility and integration, Novatus provides the right fit for companies seeking a proven provider with superior technology who offers cost efficient applications and rapid deployment. Novatus was founded in 2008 by well-respected and globally recognized contract and supply chain industry leaders and is comprised of domain experts who have been top tier software and services providers since the contract management space formed and evolved into a recognized software category and formal discipline throughout the last decade.

A Few Licensing Issues with Amazon

Many of the technologies we use every day come with a license agreement of some sort.  You might not even realize that it’s so because of where you are in the transaction chain – either as a buyer or as a seller.  Content, for instance, is created, licensed/sold, packaged, re-licensed/re-sold, bundled, re-licensed/re-sold, and on and on so many times that you can hardly figure out who actually created much of what you read online.  This is important, especially insofar as you want to be sure of who is providing the information that you use to make decisions, but also because as information is licensed/bundled/re-licensed over and over, it’s possible that the content creator isn’t getting what they earned as part of the transaction (namely, credit/attribution and/or payment).

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.


Are there any negotiators, contract professionals or sourcing folks (or anyone else for that matter with a voice on a particular subject) out there who would like the opportunity to write an article to appear here on the Licensinghandbook Blog? I’m looking for a few good guest posts – on topics of virtually anything you can think of that’s related to the general nature of this site.

If you’d like the chance to reach a rather substantial audience on a particular subject, now’s the time to act!  🙂

Simply contact me and let’s get you booked.


Blawg Review #206

Blog Reviews (sometimes known as Blog Carnivals) are posts by individual blog authors who pick a certain topic and then “review” various other blogs related to that topic (many times, the topic is only tangentially related to the blogs being reviewed).  The “Blawg Review” is simply one focused on law-related topics.

I was lucky enough to be included in J. Craig Williams’ Blawg Review #206 at May It Please The Court on the topic of Evergreen Clauses.  Thanks Craig!

Vet Your Lawyer Interview Now Available

I had the pleasure of being interviewed recently by Nat Colley for his series on Vet Your Lawyer.

We discussed the topic of negotiation and more specifically, negotiating with your own attorney.  I won’t ruin the listening experience by rehashing it here – but suffice it to say, the Five Fundamental Skills made a significant presence.

Thanks again to Nat for his time!