Filed under: contract management, copyright, current events, EULA, Five Fundamental Skills, information security, trust, work
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 bit.ly 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.
- RT @ferrusi: RT @procurement: 10+2 Strategies for Managing Suppliers http://bit.ly/wIbFn #sourcinginnovation
- @gtiadvisors Even better is the ToS: http://bit.ly/12Pupt <They’ll narc on you if they believe you’re attempting to commit fraud. 🙂
- Lego “rejects” Spinal Tap’s request to use minifig stopmotion video: http://bit.ly/j4AnX < I think Lego is outside the lines on this one.
- NC passed a recent law banning texting while driving. NC DOT started Tweeting traffic updates this week. Where’s Alanis now?
- New blog post: My Lego Love is Fast Fading http://bit.ly/wncA9
- Stephen Guth on whether RFI’s are Ethical: http://bit.ly/iKzP9
- RT @DreamSimplicity: RT @SIIA_Software:#SIIA Announces Appointment of New VP of Comm http://bit.ly/4oCzQJ <could explain new pirate video
- Madisonian on the Ninth Circuit’s decision on computer searches and the plain view doctrine. http://bit.ly/wFpic
- RT @nikiblack @DougCornelius @brucecarton @complianceweek: Oops. Important: Remove “Fudge This” from Financials. http://tinyurl.com/m9t9w6
- Ongoing discussion on FOSS license types: http://bit.ly/30u595 < Really good commentary from Shlomi.
- RT @LeighMonette: RT @AdamsDrafting: Blog Update: When to Provide for Indemnification http://bit.ly/gno5Q
- RT @russellbesq: RT @LawProf: “Second Degree Murder and Six Other Crimes Cheaper than Pirating Music” http://tinyurl.com/ns8y78
- RT @russellbesq: RT @PrivacyLaw: “Alaska Data Protection Law” http://tinyurl.com/kvfudu
- 3rd of Five Fundamental Skills for Effective Negotiation – Time Management: http://bit.ly/q7Z2b
- RT @glambert: Unpredictable Playlist Dooms Sound Recording Copyright Holders’ Infringement Claim – http://bit.ly/OcufG (Mintz Levin)
- RT @nikiblack: “You didn’t learn that in law school either?” Legal Antics http://bit.ly/Ps1EF (via feedly)
- New blog post: Jeff Gordon on Supply Excellence http://bit.ly/2GnCAi
- 2nd of Five Fundamental Skills for Effective Negotiation – Strategic Thinking: http://bit.ly/11Nyof
- RT @gtiadvisors @idexperts: Feds Issue New HIPAA Data Breach Rules: http://tinyurl.com/n5sx3g < Important for your contract lang on confid.
- Layaway is back… I didn’t realize for school supplies. Anyone wanna’ see if together “we” can pay some off? http://bit.ly/3fXxPK
- RT @nikiblack: Great comments from @LeighMonette: “Should lawyers be wary of cloud computing and SaaS?” http://bit.ly/WbS6m < Agreed!!
- RT @nikiblack: Very interesting discussion re: lawyers use of cloud computing in the comments to this post: http://bit.ly/iyYyV Join in!
- RT @nikiblack: “Should lawyers be wary of cloud computing and SaaS?”: http://bit.ly/WbS6m < Note my concerns in the comments.
- RT @hitchandplow: New blog entry: Google Book “Settlement” is Bad for Law, Copyright owners and Users http://bit.ly/3IFdZv
- New blog post: More on Trust http://bit.ly/1D8f9Y
- 1st of Five Fundamental Skills for Effective Negotiation – Information Gathering: http://bit.ly/15a3Hn
- . @ontechcontracts “In praise of short, simple contract clauses” : http://bit.ly/fikJn < Perfectly succinct. 🙂
- Speed limit raised b/c “radar speed checks show … already “safely traveling” at that speed: http://bit.ly/um1k5 < chicken & egg problem
- RT @stephenodonnell: New blog post: Vendor Consolidation http://bit.ly/1s38Br < Here, here!
- RT @TheAntiGuru Playing games during negotiations can be costly… http://bit.ly/6tpK #negotiation < great story, demos all 5 Fund Skills!
- RT @francois_ A Decision-Making Perspective to Negotiation: A Review of the Past and a Look into the Future http://bit.ly/ODRX6
- @benpobjoy If you need help with contract negotiations… some of us out here are willing to do so. 🙂
- RT @glambert: New on 3 Geeks: Are Blogging and “Thought Leadership” Compatible? – http://bit.ly/WoKFa
- RT @mental_floss: Students at Occidental College can take a course in stupidity (CTSJ180) offered by the Critical Theory/Social Justice dpt.
- Baby lawyer just risked $475K on Millionaire and lost it. I wouldn’t use him as my attorney – in his own words, he wasn’t risk adverse.
- Fatal negotiation mistakes made by copyrighters (or any other service professional): http://bit.ly/gxgJv (from zeriously.com)
- Interview w/ managing partners @ Raleigh firms: 70% don’t use ANY social networking sites. Wow.
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?
Filed under: contract management, current events, guest blog, negotiation, process
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!
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 @licensinghandbook.com. 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.
Filed under: book, contract management, contract terms, law, source code, trust, TWoTW
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”
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.
Filed under: assignment, confidentiality, contract management, copyright, Five Fundamental Skills, negotiation, pricing, risk matrix, SaaS, transfer, TWoTW
The things that happened around the web this week – maybe you already read about them, maybe you need to again:
- RT @gtiadvisors: RT @AdvertisingLaw: Blog Post: Content Protection and Copyright http://bit.ly/1Q0CX
- New blog post: Confidentiality Exclusions versus Disclosures http://bit.ly/4qYdND
- Tech workaround could allow MS-Word sales to continue: http://bit.ly/haM2S
- If you buy/sell software, get your free copy of the Software License Risk Matrix: http://bit.ly/14AJ0E
- . @insurancecvg on Coverage Disputes over Data Breaches: http://bit.ly/zaK87
- RT @ManVsDebt: frugal misery… when people try to apply cost-cutting tactics in areas that have a high personal value: http://bit.ly/rUDJ3
- I have available time for a new client if anyone is looking for ways to save money on IT procurement-related spend. Give me a buzz for info
- You don’t get what you deserve, you get what you negotiate (@activegarage): http://bit.ly/vW2KU
- RE: @park3 Thanks Jay. I’m still not sure that the distinction you point out really changes the analysis. Even in a… http://disq.us/1szo
- Who do you think is the best negotiator? 10% say William Shatner. Seriously? http://bit.ly/tP1SA
- RE: @park3 I don’t know that there is a rule. In fact, after years of thinking about it, the only rule is that there i… http://disq.us/1sxz
- Microsoft software clampdown nets 11 firms (via ZDNetUK): http://bit.ly/fVRFs
- RT @gtiadvisors @taxgirl: http://bit.ly/rPlPd < Why I recommend negotiation experts over corporate lawyers.
- RT @skydiver: http://bit.ly/JetPass – all you can fly in one month on jet blue – $599. < Sourcing folks should watch how this plays out.
- RT @gtiadvisors @colleencunningh @CoreyVickers @BettyFeng CFOs ignoring supply chain risks http://bit.ly/qtgK8 < I knew it… crap.
- RT @drjimanderson: Classic Sales Negotiation Tactic – I’ve Got to Talk to My Boss: http://bit.ly/wYU4j < Power tactic, learn to respond
- RT @harrymccracken: Texas Judge tells Microsoft to quit selling Word: http://bit.ly/ybXzR < This doesn’t affect current owner/users of Word
- When describing calculations in contracts – SHOW AN EXAMPLE, it might save your butt later! (@ontechcontracts): http://bit.ly/NXrsr
- New blog post: Jeff Gordon Quoted on SpendMatters Today http://bit.ly/zPTbo
- Simon Cowell’s lessons in salary negotiation http://bit.ly/1Es4p
- Thanks to Jason Busch (@spendmatters) for an opportunity to talk about M&A wrt licensing deals: http://bit.ly/ANzzA
- RT @fscavo RT @rwang0 Hearing about how hard it is to leave some #saaS vendors. Automatic renewal may not be the way to go! < Same here
- Follow the Five Fundamental Skills for Effective Negotiation and this won’t ever be an issue: http://bit.ly/oKM7J
- RT @ontechcontracts 3-step way to ID contract contingencies: http://bit.ly/N7Ldu < I was just talking about this. Good article!
- RT @fscavo: Stupid contract clauses that hinder business partner relationships http://is.gd/2aOYc Good post by @Figliuolo
- RT @WieseLawFirm: Thoughts on developing leverage and why it’s important in negotiations: http://is.gd/2aE28 < I call it Power in the FFSfEN
- Privacy policies just got interesting in ME (and applicable to everyone doing anything online): http://bit.ly/FFtYn (HT to Deena Burgess)