Filed under: copyright
I saw this on the intertubes today and found the image hilarious, but the concept really academically interesting. Would such a donation attempt actually hold water? Can a copyright holder effectively turn his/her IP over to the public domain this easily? What if you’ve registered with the US Copyright Office? Anyone wanna’ hazard a guess?
Steve Cosentino has a decent list of software licensing trends posted on yesterday’s Techknowledgyblog
It’s rare that an attorney in this space actually knows what he’s talking about – but Steve seems to know his stuff (ie: I agree with his position).
Max Kalehoff is a marketing expert. He’s also a fan of Einstein – yeah, Albert. In a stroke of pure genius, he realized that Einstein figured out marketing. Check out this list of 10 quotes from Einstein and Max’s commentary from a recent post at OnlineSpin.
1. “Imagination is more important than knowledge.” So why not cultivate imagination? Why not seek it out when screening new hires, or emphasize it in professional development, or cherish it when problem-solving?
2. “A perfection of means, and confusion of aims, seems to be our main problem.” What really are you trying to achieve? How well is your mission defined? Perfection of everything else is meaningless if you and your organization don’t know where you’re headed. This is where leadership begins.
3. “Strive not to be a success, but rather to be of value.” This is an ideology of humbleness, selflessness and authenticity. Embodying this ideology creates longer-term, competitive advantage. Value to customer is what really matters, not whether you’re successful. You’ll end up successful if you create value.
4. “Not everything that can be counted counts, and not everything that counts can be counted.” In an increasingly quant-driven marketplace, it’s easy to obsess on what you can count and disregard the rest. This paradox contributes to the confusion of aims mentioned above. To be successful, it’s critical to find alternative means of codifying and leveraging the important things you can’t count.
5. “Any fool can make things bigger, more complex, and more violent. It takes a touch of genius — and a lot of courage — to move in the opposite direction.” Perhaps violence is less relevant in most businesses, but size and complexity are major problems. For reasons I can’t explain, marketers too often get obsessed with size and complexity — as if they’re desirable. The fact is they’re the opposite, and they’re offensive jabs at our most precious assets: time and attention. Marketers may not see this, but customers do. Customers delight in simplicity and efficient use of space and time.
6. “If you can’t explain it simply, you don’t understand it well enough.” This is true for internal employee communications, as well as customer communications. Master your subject matter so you can confidently pick the language, concepts and style that communicate with the greatest ease and efficiency.
7. “Anyone who has never made a mistake has never tried anything new.” Mistakes and losses should actually be rewarded. Fear and low tolerance for mistakes breads stagnant cultures and boring products.
8. “I have no special talent. I am only passionately curious.” When you enable passion, you drive focus, cultivate mastery, leverage spontaneity, foster creativity, build intuition and live toward mission. The dots connect, clarity emerges.
9. “Whoever is careless with the truth in small matters cannot be trusted with important matters.” Truth is paramount, but carelessness with what is small is a window into how one may handle anything large. The small stuff matters.
10. “Most people say that is it is the intellect which makes a great scientist. They are wrong: it is character.” Same for marketing and business in general. Need I say more?
So, what does this have to do with software licensing, contracts or negotiation? Well, re-read the list while you think about contracting (and more specifically, contract drafting). Notice anything? Yeah – the list applies to us as well. So here’s the list again, this time with contracting-specifics:
1. “Imagination is more important than knowledge.” You can study every contract drafting book in the world. If you do not have the ability to understand what your business folks are doing and translate that into contractual terms that make sense (ie: creativity and imagination), you’re going to miss some really big opportunities.
2. “A perfection of means, and confusion of aims, seems to be our main problem.” What really are you trying to achieve? How well is your mission defined? Perfection of everything else is meaningless if you and your organization don’t know where you’re headed. This is where leadership begins. [I don’t need to change anything here, this is applies as written.]
3. “Strive not to be a success, but rather to be of value.” This is an ideology of humbleness, selflessness and authenticity. Embodying this ideology creates longer-term, competitive advantage. Value to customer is what really matters, not whether you’re successful. You’ll end up successful if you create value. [Ditto.]
4. “Not everything that can be counted counts, and not everything that counts can be counted.” Similar to what Max already wrote, you’re going to be called upon to try to quantify contractual terms, risk and value. Sometimes you can do it, sometimes you can’t. But you need to be able to explain the “why” of what you’re doing, and where it impacts your business. There are times that this will be extremely frustrating. You will recognize a Service Level just begging for an SLA – but you won’t be able to quantify it. Do your best anyways.
5. “Any fool can make things bigger, more complex, and more violent. It takes a touch of genius — and a lot of courage — to move in the opposite direction.” OK, so I’m guilty of 60 page license agreements. But every year or less, I take a fresh pass through the document to try to slim it down, make it more readable, less complex. I look for ways to simplify, consolidate or eliminate. Having long agreements for the sake of long agreements isn’t good. If you can say in one sentence what you would prefer to say in five, say it in one.
6. “If you can’t explain it simply, you don’t understand it well enough.” This is true for internal employee communications, as well as customer communications. Master your subject matter so you can confidently pick the language, concepts and style that communicate with the greatest ease and efficiency. [No changes from Max’s explanation.]
7. “Anyone who has never made a mistake has never tried anything new.” Lawyers, accountants and other such professionals seem to be extraordinarily weary of making mistakes. God forbid you ever admit to one, either. But here’s the kicker, we all make mistakes. Yep, even you. The trick is to learn from them, make corrections and move on. It’s only making the same mistake twice that’s not so good.
8. “I have no special talent. I am only passionately curious.” Some contract professionals believe that they’re trained monkeys – that anyone could do their job with a little instruction and a computer. Well, maybe they’re right to some degree. Writing a contract isn’t really comparable to rocket science. With the proper training and time, I can teach almost anyone how to review and write a pretty decent contract. In fact, most folks want to see other people’s contract templates for this very reason. But there is another level. A class of contract professionals who extend the value, create better contracts and are better negotiators. It’s not talent that separates them from their average peers. It’s curiosity and drive. You can have it, too.
9. “Whoever is careless with the truth in small matters cannot be trusted with important matters.” Truth is paramount, but carelessness with what is small is a window into how one may handle anything large. The small stuff matters. [Max nailed it… but here’s a little extra.] You MUST ALWAYS BE TRUTHFUL as a contracts professional. There’s no wiggle room, no area for interpretation. Above-board behavior is the ONLY acceptable behavior. This is why you don’t go to lunch on someone else’s tab during negotiations or accept gifts from potential vendors. But what about…? But what if…? But how…? But nothing.
10. “Most people say that is it is the intellect which makes a great scientist. They are wrong: it is character.” Same for marketing and business in general. Need I say more? [No, Max, you don’t. Great list, great post.]
Some folks think I’m crazy for continuing to include Y2K-type language in my software licenses.
[Special appearance of the Wayback machine: For those of you who don’t even know what I’m talking about, back in the day, we were concerned that software was going to stop working on January 1, 2000. The fear was that since some sloppy programmers wanted to save computer memory by shortening dates to only two-digits, that once the year moved into 2000, date calculations would no longer work. Thousands of programs had to be tested and patched. Almost every organization did some sort of Y2K audit to figure out whether they were going to have problems.]
Oh, and did I mention that many software vendors were charging for the privilege of getting replacement software that wasn’t coded in this sloppy manner? Yep. Not to mention the fact that the memory problem that precipitated the sloppy coding was solved somewhere around the mid-80s (and even if you want to balk and say that this type of memory problem wasn’t fixed until the early 90s, we’re still talking about having more than 10 years to fix, or prevent, the problem).
So, in typical contractual knee-jerk manner, the legal/contract community’s response was to start including contract language that said that a computer program would work properly after 1/1/2000. At first, this was problematic, as vendors sometimes didn’t really know whether their application would work correctly. Then they were concerned about the interaction between their application and other people’s applications. Ahhh… and let us not forget those lazy vendors who didn’t fix the application properly… they just patched it to still use two-digit years, but make some sort of logical calculation that if the 2 digits were between 0 and 40 (or so), it would be read as 2000 – 2040, and if the 2 digits were between 41 and 99, it would be read as 1941 and 1999.
Well, I never stopped including language in my contracts that addresses this problem. Of course, I don’t specify that I’m talking about the Y2K problem specifically – I just have as part of my warranty language that:
“at no additional cost to Licensee and without human intervention, the Software will correctly recognize and correctly process data and formulas relating to the year 2000 and beyond (including arithmetic, comparison, sorting, day-of-week and day-of-year functions), will produce expected results (including correct leap year calculations) and will provide all such date-related data and formulas used by other applications in a format that will permit the correct recognition of dates by the other applications”
Most vendors don’t even blink at this anymore. In fact, I’m not even sure they think about it at all. But for the last ten years or so, I’ve included something similar.
And now it’s time for me to reap the rewards. For I knew a little-known fact (at least in the contract/legal community, that is)… the Y2K problem was a toll-booth on this highway. One of many similar issues. The next one is coming in 2038.
News: Saturday 19 Janurary 2008 is coming soon: this date is exactly 30 years before the bug. Will 30-year bonds and retirement schemes be affected? Let’s wait and see.
The year-2038 bug is similar to the Y2K bug in that it involves a time-wrap problem not handled by programmers. In the case of Y2K, many older machines did not store the century digits of dates, hence the year 2000 and the year 1900 would appear the same.
Of course we now know that the prevalence of computers that would fail because of this error was greatly exaggerated by the media. Computer scientists were generally aware that most machines would continue operating as usual through the century turnover, with the worst result being an incorrect date. This prediction withstood through to the new millennium. Affected systems were tested and corrected in time, although the correction and verification of those systems was monumentally expensive.
There are however several other problems with date handling on machines in the world today. Some are less prevalent than others, but it is true that almost all computers suffer from one critical limitation. Most programs work out their dates from a perpetual second counter – 86400 seconds per day counting from Jan 1 1970. A recent milestone was Sep 9 2001, where this value wrapped from 999’999’999 seconds to 1’000’000’000 seconds. Very few programs anywhere store time as a 9 digit number, and therefore this was not a problem.
Modern computers use a standard 4 byte integer for this second count. This is 31 bits, storing a maximum value of 231. The remaining bit is the sign. This means that when the second count reaches 2147483647, it will wrap to -2147483648.
The precise date of this occurrence is Tue Jan 19 03:14:07 2038. At this time, a machine prone to this bug will show the time Fri Dec 13 20:45:52 1901, hence it is possible that the media will call this The Friday 13th Bug.
So… might I suggest that you include Y2K related language now? Sure, some folks might think you’re a little loopy. But isn’t our job to protect folks from the risks they don’t understand?
What do you do about non-performing (or poor-performing) service providers?
Well, I hope that you have an agreement that will cover you in three ways: 1. Allow you to “reject” the service and refuse to pay for the bad service. 2. Allow you to keep what’s been done so far (say, software code that’s been written in the interim) and go elsewhere with it. and 3. Allow you to force the vendor to fix the poor performance at their cost.
But what if you don’t have these clauses in your contract… or what if you took over someone else’s project and now have to clean up a mess? What can you do to fix this problem?
Remember that the negotiation continues until the product/service is delivered/complete. As long as you are communicating with your provider, you’ve got a good chance of solving the problem. So find out who in their organization has the decision-making power and schedule a conference. It’s preferable to be face-to-face, but a conference call will work.
Next, using the Five Fundamental Skills, make sure that you’ve gathered all of the relevant information. There’s nothing I dislike more as a negotiator than to get blind-sided because I don’t have all of the facts. Collect your SMEs and discuss the issue in detail.
Were you at fault at all? This is a vital question and one that can usually lead to negotiation breakthroughs. Being able to admit partial fault is extraordinarily beneficial in a heated negotiation and usually is the tide-turner leading to success! Even if your SMEs don’t want to accept ANY responsibility… FIND something that you did wrong and be prepared to admit and atone for it.
Starting the conference, VERY CALMLY explain the non-contentious facts as they exist today, without bias and without emotion. Just bullet point them. When you’re done with the non-contentious facts, ask whether the other side agrees with what you’ve said so far. They should. And this type of buy-in is psychologically helpful.
Second, try to explain the difficulty the parties are having in a non-judgmental, fact-based manner. X did this, then Y did that. Stay away from blame or blame-based situations (“…so-and-so said they would, but didn’t…” “…he promised x and couldn’t finish the job…”). I know this is really hard, but it’s important.
Third, and key, is to take responsibility. Remember I said to look for where you did something wrong – or where you were to blame for a particular situation? It’s time to admit to it now and say what you did, how it was wrong … and apologize for the difficulty it caused and promise that you’ve corrected the cause and it won’t happen again. Oh, and you have to say it with honesty and without sarcasm (this can be hard to muster, too).
Fourth… now say: “Can you help us fix this problem?”
OK. Now STOP. Shut up. Be still and be silent. Listen to the chairs in the room creak. Listen to the sounds of breathing on the other side of the phone. Just be calm and cool… and 100% quiet. [You’ll probably need to tell anyone else on your team what you’re about to do and that they must NEVER, EVER break the silence. They are mere observers.]
What happens next is entirely psychological as well. You’ve been very calm to this point, almost soothing. You were gentle, you stated facts and you weren’t emotional. You then said that you had a problem… and you took responsibility for your part in the problem. Finally, you asked for their help. This is causing some significant issues in the psyches of your provider. They want to help you now. They really do. They’re admiring the fact that you were open, calm and honest. They’re stunned that you admitted some form of fault. And again, now you’re asking for their help. The silent treatment (until they speak) is used to reinforce that you’ve asked them for something and now you’re going to wait for their response.
Do you think they’re gonna’ say “No.”? Almost never.
Now, what you’ve really done is flat-out manipulation. It’s not wrong, per se, but you’re using several psychological ploys to get the provider to help you. You’re appealing to them on several levels … and you are, in essence, making them want to help you. Your silence actually encourages them to fill the silence (which is why you need to tell your own folks to be quiet – you can talk yourself out of success here if you’re not careful).
Go try it.