Software Licensing Handbook now available as an eBook

I know, I know… welcome to the 20th Century, Jeff.  I was waiting for my publishing “house”, Lulu, to allow for an eBook edition, and we’ve finally got it.

So, if you have been waiting for the eBook version of the Software Licensing Handbook (I’m matching Amazon’s price for the paper version, so get it cheaply now), you can get it here.

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.

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):

• Ken Adams
• Adam Ayer
• Rick Chapman
• H. Ward Classen
• Jim Geisman
  
• Eric Goldman
• Stephen Guth
• Victoria Pynchon
• Frank Scavo
• Brian Sommer
• Ray Wang

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:

• 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”

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.

Baseline Partnership Announced

As others have been, I’m very interested in technologies which can improve the lives of contract negotiators, purchasing managers and other folks engaged in the process of contract review. Dozens of software packages have been released in the last few years which purport to help ease that process. I’ve played with many of them – most end up being focused on document assembly. What I’ve been looking for is a tool that helps when I’ve got a non-standard agreement and want to quickly compare it to my standard preferred language.

This is usually a highly choreographed event. I start with needing a 22″ monitor so I can see two documents side-by-side at 100%+ size (my eyes are getting old). Then, with the proposed agreement on the left and my template language on the right, I systematically move through the proposed agreement and bounce around my template to find the matching sections. I read the proposed language, consider its phrasing, see what can be kept and how I can make my preferred language work without appearing to bloody up the proposed agreement too badly. I redline the proposed agreement accordingly and then turn it back around to the other side. Depending on the length of the agreement, font size and other issues, I typically move at a pace of about 4-8 pages per hour for the complete process.

When I first heard about Baseline, I was skeptical. Baseline Solutions advertises it as a document review and knowledge management tool. You upload your preferred language (the baseline information) and then you can bounce any other proposed agreement off your preferences. The software uses proprietary algorithms to review the wording and match the sections. It looks for common phrasing but also appears to recognize intent. Frankly, I’m not sure how it works, but it does.

After a few seconds, the system returns to me a Word document with track changes turned on showing changes to the document corresponding to my preferred language. The result is that the first review of my prior two-documents-on-the-screen-at-the-same-time exercise is accomplished in a few seconds. The basic review is complete – now I can spend my valuable time reviewing the unique contract issues. I’ve just saved time and produced a better document.

In the first iteration, Baseline was focused exclusively on NDAs, as they’re seen to be the most static of standard agreements. But the newly released Baseline product tackles software licenses and services agreements as well. Added into the product now are two new features, both of which Licensinghandbook is proud to participate. Several sections of the Software Licensing Handbook are available as a Knowledgebase within Baseline. This is like Pop-Up Video for your contract. See a section you’ve never heard of or don’t know why it’s there? The Knowledgebase is there to explain.

Over the years, many folks have asked for my template software license agreement. I’m reluctant to hand it out – it’s not only the product of a decade of refinement, but it’s also detailed enough that failure to use it properly could result in problems. Baseline uses template language as the reference point for comparison, so in a first for Licensinghandbook, I have agreed to allow Baseline to use my template software license language as a template against which customers can bounce their proposed agreements.

Please join me in welcoming Baseline Solutions to the contract management marketplace!

[Disclaimer: My partnership with Baseline provides me revenue based on the use of the Software Licensing Handbook Knowledgebase or the Licensinghandbook Software License Agreement.]

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.

Software Licensing Handbook in Sales Contest

Ok, so your reaction to the title would probably be mine, too: “who cares if the SLH is in a sales contest?”.

Well, perhaps you will… if you were thinking about buying a copy, Lulu is offering a 10% discount off the list price for this May sales contest event.

To take advantage of the sale through the month of May, simply order here and at checkout, enter code “MAYCONTEST10”.

Thank you all for your support (whether you’ve bought the book, are buying one, or just read my little missives here)!

Software Licensing Handbook Reviewed by H. Ward Classen

I am honored to present a review of the Software Licensing Handbook by H. Ward Classen, author of A Practical Guide to Software Licensing for Licensees and Licensors.  Thanks to Ward for his time and energy on creating such a comprehensive evaluation!

Jeffrey Gordon’s Software Licensing Handbook is one of those rare reference resources where the reader only wishes they had come across it earlier.  The Software Licensing Handbook is a comprehensive resource addressing all of the material potential issues a practitioner may confront in a software licensing transaction.  It guides the reader from preparing for the RFP/RFI process to identify prospective vendors until the successful vendor has completed its contractual obligations.

The book begins with a detailed overview of the different intellectual property rights utilized to protect software: patents, copyrights, trademarks and trade secrets.  Mr. Gordon’s explanation allows the reader to understand the basis and means for software protection and thus the foundation for software licensing itself.  By providing a succinct overview of intellectual property law, he permits the reader to conceptualize reason for and the importance of each clause in a software license.  The subsequent text delves into a comprehensive explanation of almost every issue that may arise during the course a software negotiation, including defining the services to be rendered, tax liability, indemnification, source code escrow and most importantly, how to successfully negotiate a software license.  Perhaps the most valuable aspect of his book is Mr. Gordon’s advice on how to negotiate a software license.  Mr. Gordon is an expert in negotiation and it clearly shows.  He interspaces throughout the book negotiating positions from both the licensor’s and licensee’s perspective. His tried and true advice provides invaluable insights that benefit all parties to a transaction.

Mr. Gordon also examines many of the issues related to alternative licensing transactions such as ASP licenses and click-through and shrink-wrap licenses as well as open source licenses.  As open source software assumes greater importance in the world of software licensing, it is imperative that both licensors and licensees understand the risks and benefits of utilizing open source software   Too often parties fail to realize the inherent risks of utilizing viral licenses. This brief but comprehensive discussion provides the reader a fundamental working knowledge of the relevant issues related to open source licenses.

The book explores many aspects of software licensing that are rarely addressed in other books including the RFP process, software audits and the importance of establishing severity levels for maintenance and support agreements.  Each of these issues is critical to a successful licensing transaction but yet many practitioners fail to grasp their importance.  By utilizing an RFP process, a customer is able to compare and contrast the abilities of several vendors and usually obtain better terms and pricing through a competitive process.  Software audits allow the licensor to confirm the licensee’s compliance with the terms of the license grant.  Audit language must be carefully drafted to protect the licensor’s interests while limiting the licensor’s ability to conduct overly broad audits of the licensee’s business at the licensee’s expense.   Similarly, it is in both parties interests to negotiate well defined severity levels for the provision of support and maintenance services to avoid potential disputes.

Not only does Mr. Gordon address the issues involved in software licensing, he provides the reader with a solid foundation for negotiating peripheral agreements when purchasing computer hardware and working with value added resellers (VARs).  While some readers will not interact with VARs or purchase hardware on a day to day basis, his discussion is not superfluous as every practitioner should have an understanding of the interrelationship among vendors providing an integrated software system to ensure the customer receives a vibrant, fully functional system.

Mr. Gordon also includes a chapter on contract management.  Many practitioners falsely believe the contract ends with the acceptance of the software.  This misconception often contributes to the software failing to meet the licensee’s long term goals.  Many software projects continue for many years after the software’s initial installation, emphasizing the need for both the licensor and licensee to manage the contracting process well after installation and acceptance.  Mr. Gordon’s eloquent discussion also incorporates the importance of managing the deliverables, service levels and guiding the contract toward completion.  Finally, the Software Licensing Handbook contains an excellent glossary of important words and phrases often found in software licenses as well as a list of resources the reader can access for further information.  These features are often overlooked by many other authors but yet they provide invaluable assistance to the reader.

Perhaps the book’s only weakness is its lack of a comprehensive model software license form to illustrate Mr. Gordon’s excellent discussion.  A model form would reinforce the reader’s understanding of Mr. Gordon’s points and help them visualize the issue being discussed.  Given the large number of forms available in form books and over the internet, this is not a material flaw but one that would serve as a welcome addition for the reader.

In short, the Software Licensing Handbook is a valuable resource that every individual who negotiates software licenses and technology agreements should own.

Eight weeks til BN!

After eight weeks of twists and turns with my publisher and with the Bowker Books in Print system, the Software Licensing Handbook, Second Edition is now available through Barnes and Nobles (and other fine booksellers).  It’s a long sorid tale – not really worth telling.  I’m just happy it’s available again.  They’re even offering it at a discount.

ps. I’ll give a free set of the first three levels of Software Licensing Education Series videos to one person who can name the song title spoofed by the title to this post.  Post your attempt in the comments.  I’ll select a random name from all correct answers by next week at this time.

Software Licensing Handbook mentioned in “GO”

The Software Licensing Handbook (and yours truly) were mentioned in a discussion of software licensing in the January edition of “GO” (AirTran Airways in-flight magazine).

Thanks to the author, Lee Gimpel!