As the year draws to a close

Hopefully, most of you are done with work for the year.  But for those of you about to close end of year, firesale-type deals in the remaining 6 days of the year (the end of the year is even a Thursday, so you don’t have to “work” a weekend if this is your fate), here is a list of articles on how to get the most out of your transaction time:

Start with fundamentals on negotiation.  Think outside the box.

Then go through the basics on firesales.  If you want more, buy the Firesale Concall Recording.

Understand pricing, and when it might pay to avoid maintenance costs.

Start your deals from good templates.

And, lastly, consider the reasons for agreeing to renegotiating deals.

To my faithful readers: Thank you for listening to me for another year.  I hope you have a very joyous holiday season and a happy New Year.  See you in 2010 (unless something really awesome in the licensing world happens between now and then).

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Content, Value and Commoditization

In the last 24 hours, there have been a slew of articles published or noted by the community-at-large on the concept of “free” content and the struggle that old business models are having trying to continue operations when things that used to be scarce (like form contracts) are now virtual commodities.

Some of these articles advocate changing the business model – such as this article that talks about offering “free” versions and then what amount to special editions – customized content that people would pay for since it appeals directly to their interests.  Others, like this post by Jason Anderman (of WhichDraft fame), talk about the economics and business advantages (giving away free content potentially encourages customers to come back to you for paid gigs).  But everything seems to be stemming from Chris Anderson’s latest book: Free: The Future of a Radical Price.  As I’ve not yet read this book (but his other on The Long Tail was interesting, if not challenged by some economists), I can’t really comment on what Chris is suggesting.

But I can comment on the value of free, especially as it relates to contracts, software licenses and other legal forms… and it’s a cliche, but the truth is: You Get What You Pay For, especially in legal forms.  But this is because it’s not about the form itself, but rather, the drafter and the advice you get when using the form.

To understand why legal documents are somewhat of an exception, it’s important to start at a foundational level (with the law) and build up towards the client.  Remember first that within the United States alone, there are 51 bodies of law (each State, plus Federal), not including any of our protectorates or territories… nor considering any of the other 193 US State Department-recognized countries’ laws.  Second, know that within a given type of agreement, there are literally THOUSANDS of potential combinations and permutations of clauses that can be used to obtain a particular goal – and dozens when you whittle down your agreement to only be governed by one or two bodies of law.  Lastly, think about your own personal situation with respects to your needs.  Now look around and ask yourself what other items in your life you use without modification of some sort.  Your home, car, office… even your computer.  All are customized because of the way you plan to use the tool.  Sure, there might have been a framework involved, but who did the customizations?

The answer, with respects to contracts, is a contract specialist and sometimes a lawyer.  They use templates as starting points to prevent the re-invention of the wheel and to make sure that all bases are covered.  But they are only starting points.  As I’ve said in the past, I almost never give/sell/provide my templates to other people because I’m simply afraid that they’ll take them and use them without modification – contrary to their intended use.

In fact, a few years ago, I ran a search to see how many online EULA’s were similarly modeled after Microsoft’s… and was pretty shocked to discover the sheer number that had copied the document word-for-word, including the choice of forum language (venue) for any disputes.  I notified a very distressed company in Australia that they might want to change the language because as it stood, any disputes with them would have to be resolved in King County, Washington (Seattle, Microsoft’s hometown).

So remember that while you might find forms, templates and other legal documents freely available online, you probably need professional assistance to help you customize that document for the specifics of your particular situation.  Don’t be fooled into thinking that one size fits all.  It doesn’t.  AVAILAbility doesn’t equal VIAbility.  (That said, Stephen Guth gives away his license agreements – which are good starting points if you’re looking for a free document.)

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.]

Why I Don’t Usually Hand Out Templates

Deven Desai over at madisonian has a great post on Theory and Law Practice. I’ll let the article do itself justice, but the explanation for understanding theory is exactly why I usually demur when asked to provide templates, either here on this site or within the Software Licensing Handbook.

Giving the template to someone is like handing them a fish but expecting them to figure out how to fish with the thing flopping around in their hands.  Hopefully, what I’m doing here is teaching you to fish (I like to think of it as deep sea fishing, actually… strapped into a chair on the back of a large boat… hauling in that sailfish that might skewer you if you’re not careful) – so you can develop your own templates and respond to someone else’s templates, all without breaking a sweat.

Stephen Guth Gives Away Contract Templates

My good friend, Stephen Guth, over at the Vendor Management Blog has decided to go ahead and release many of his “battle-tested” contracts away to you for free.

But, although conventional wisdom says that free advice is worth what you pay for it, in this case just because something is free doesn’t mean it’s without value.  In fact, in one move, he’s immediately given away what dozens of other folks have been charging a lot of money for in the past.  Oh… and we’re talking about Stephen Guth’s templates here… which means they’re gonna’ be really good.

Visit the VMO-Blog for the link (note: it’s up at the top and a little hard to see).  Get ’em while they’re hot – because even if YOU don’t want to use them, your opponents will… so you might as well learn what they say now and use my book to figure out how to counter them.  😉