Filed under: contract management, copyright, current events, dispute resolution, EULA, force majeure, fun, information security, maintenance, pricing, SaaS, termination, trademark, TWoTW, warranty
It happens to be my birthday weekend and between eating some great food, playing Guitar Hero with my wife and hanging with the family, these are the things that happened around the web this week – maybe you already read about them, maybe you need to again – there were some REALLY great discussions going on. Come join the party on twitter (follow me here and you’ll join the conversation live.)
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 and “<” which means that I am commenting on what came before it.
- RT @rwang0 @dealarchitect: Don’t cry for me Germany. SAP had plenty of warnings. http://tinyurl.com/mclvbm < I can’t wait to see who’s next
- RT @richards1000: Tuunanen et al. on Automated Software License Analysis http://bit.ly/svjQR < Cool but irrelevant. FOSS license are nonneg.
- RT @rwang0: reading the new twitter terms of service. like the fact that you and only you own your content. < At least for now. 🙂
- RT @jimcalloway @ernieattorney Important safety tip for ‘would-be lawyer bloggers’: if you lack common sense don’t blog http://bit.ly/2fFcBH
- New blog post: Content, Value and Commoditization http://bit.ly/27HVx
- RT @btannebaum: Lawyers, do you care about transparency on twitter? http://mylawlicense.blogspo…
- Contract negotiation according to the Marx Brothers: http://bit.ly/12U7pY
- US Registrar of Copyrights opposes Google book deal: http://bit.ly/KhP83 … so do I. Unwarranted monopoly.
- … and then there was a whole discussion on what constitutes being an expert at something, sparked by one lawyer’s assertion that it takes 6 months’ of research and then a good SEO strategy to get yourself to the top of the Google rankings. I, and others, disagreed. (RT @nikiblack @Adrianos: “How To Become An “Expert” In Your Niche In 6 Months” http://bit.ly/pIj2Q < I really do NOT like this!)
- New blog post: On Acceptance Testing… http://bit.ly/s0zsV
- @JasonAnderman The author misses part of the value of the lawyer – understanding that a form isn’t 1sizefitsall. Available /= viable.
- @ferrusi @PeterKretzman When discussing vendors, not having them in the room usually leads to more openness. It can also reveal biases.
- @PeterKretzman @mckenziesa: RE: Find a way to get the salesmen out of our vendor discussions! < Um, Ask them to leave?
- RT @glambert: Blogging Lawyer Charged with Confidentiality Violations – http://bit.ly/mLcTj (Public Defender tells a little too much)
- RT @rwang0 Cloud computing model – IDC numbers show s that its … 1/2 the cost < How does that translate to customer fees?
- RT @PeterKretzman @testobsessed Source code, like invty, is a liability, not an asset. (PK: indeed. It’s why I laugh at source code escrow)
- RT @vpynchon @tamerabennett: Disney, Pixar Sued by Luxo Lamp Co: http://bit.ly/MO4X7 < Shouldn’t matter. Pixar’s not selling lamps.
- RT @fscavo: @negot8or thinks #saas providers should set up living trusts (my word) for their customers. Read comments: http://is.gd/34L65
- Kate Gonzalez’s Tom Ten Force Majeure Imposters (via @superbuyer): http://bit.ly/Ol4Wy
- Confessions of a Car Salesman: meeting, greeting and dealing: http://bit.ly/3nihk (via edmunds.com)
- Antitrust lawyer slams Google book pact: http://bit.ly/83Hqp (via All Things Digital)
- RT @LeighMonette: RT @PrivacyLaw: “’Anonymized’ data really isn’t—and here’s why not” http://tinyurl.com/ksxz8t
- RT @fscavo: Just blogged: SaaS contingency plans need more than software escrow http://bit.ly/r2cJn < Escrow is wasted money IMHO.
- RT @jimcalloway: Blogged about lawyers taking their laptops across the U.S. borders. http://tinyurl.com/n4bfms
- RT @BrettTrout “World Patent” good for M$, bad for most everyone else. http://bit.ly/o0rbZ
- Jeremy Telman, contracts prof @ my almamater, on why execution before performance is a good idea: http://bit.ly/1iJjY7
- RT @vpynchon: http://twurl.nl/tiuvp7 the negotiation analysis of the lessons of the Cove (which halted the killing of dolphins for one day)
- RT @bobambrogi: LawSites blog: Plaxo’s New Terms of Service http://bit.ly/1BNRy
- RT @bobambrogi @paulzink: You and your attorney colleagues (esp. those in copyright law) may get a chuckle from this: http://bit.ly/jJd6G
- … and then we had a long discussion on the tweeting of the play-by-play via twitter of a NFL game (the NFL likes to exert some extreme control over their content). Some folks thought that twitter was a game-changing technology. I argued that it was control-changing…. that they should tweet every game in their own words: @FlashFusion @julito77 @gtiadvisors It’s only a copyright issue if you tweet the actual broadcast wording/play-by-play. Make up your own. 🙂
- RT @doctorow: Another reason you can’t outsource your kids’ online safety to spyware companies: http://tinyurl.com/n934fh < Read the EULAs!!
- RT @gtiadvisors @GregBufithis @BrettTrout Proposed U.S. patent law reforms would stifle innovation and injure entrep’s http://is.gd/2ZXza
- RT @OmarHaRedeye: Blawg Review #228 is live http://bit.ly/11D50J/ < Thanks for the inclusion!
- Sometimes is pays to see how the software sausage is made: http://bit.ly/S3b5p
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.
This is a blog response to DreamSimplicity’s “4 Advantages to Using SaaS for Your Small Business“. DS is correct, SaaS offers several great advantages that small businesses can exploit – such as obtaining access to enterprise-class software once priced outside non-enterprise reach. But all is not rosy and wonderful in the SaaS world. It pays to consider all options before moving ahead with any software product, and some risks are exacerbated by a SaaS environment. Here are four to consider:
- You’re still small and probably have no leverage to negotiate the license. Even SaaS vendors offer negotiable software licenses to customers who buy above a certain threshold. As a small business, you’ll be less likely to meet that threshold and will be tied to their unmodified EULA. Take the time to read this document carefully, it’s the setup for the next three issues. Oh, and just because you’re small doesn’t mean you can’t TRY to negotiate. ALWAYS ask for the changes you want – the worst they say is “no.”
- The SaaS provider is going to have your data. Building your business from the ground up within one of these platforms is terrific. However, once you mature to the point where you consider switching, you might only now start to consider how to get your data out of the system. If you think of this up front, you might be able to get a small change to your contract to allow you easy access to your information. If not, do the research to see how you can export data. Zoho, for example, is awesome. But there’s almost no way to easily get all of the data from a fully-populated database out of ZohoCRM.
- The SaaS provider is going to be storing your data. Depending on your business, you might have certain regulations governing the acquisition, storage and use of the information you gather from customers. Again, if you’ve clicked “I Agree” to the standard EULA, chances are, the vendor isn’t offering any real protection of data.
- You have to consider the potential for your provider to go out of business. With the SaaS model, you only have access to the application for so long as the provider is viable. If the provider goes away tomorrow, so does your access to the application (not to mention your data). As a small business, you probably won’t have access to some of the enterprise-class contract provisions here either – such as escrow, guarantees for unexpected terminations… heck, even termination notice.
So, while SaaS can offer extremely valuable opportunities, there are pitfalls, too. Just be aware – for even if you can’t do anything about these issues from a contractual perspective, you can try to deal with it from a business planning perspective.
Filed under: communication, contract management, contract terms, current events, employment, EULA, Five Fundamental Skills, risk matrix, TWoTW
- RT @vpynchon: RT @priorsmart: “Self-plagiarizing law prof snagged” http://u.nu/3xxk [from ipbiz] < I don’t think this is too bad. #
- RT @SAManage 5 Tips for Eliminating Hidden Software Costs http://tinyurl.com/l2apqz #
- . @ontechcontracts – How long for disclosure in NDAs? http://bit.ly/l2Dzz #
- RT @SAManage: IT Inventory Management http://tinyurl.com/kmbt3p #
- RIAA Says DRM is dead (via TorrentFreak) http://bit.ly/XBiYg <somehow, I think zombies will still be involved #
- Are you kidding me – $1.1M for 2lbs of frozen sliced ham? Geez. http://bit.ly/RiU5X #
- RT @WieseLawFirm: Locavore Movement Has Hatched a Surprising New Legal Problem: http://is.gd/1FsOO < I just like saying “urban chicken” #
- RT I’m offering my Software License Risk Matrix for free: http://bit.ly/14AJ0E #
- RT @DreamSimplicity: 5 Free Business Web-Based Software Solutions http://tinyurl.com/krhjzk #
- RT @askamanager: mostly bad behavior that isn’t illegal http://bit.ly/FtjNL <great article! #
- RT @PeterKretzman: A good intro paper on #cloudcomputing: @mariaspinola’s “Essential Guide”: http://bit.ly/RbXcy. #
- RT @SAManage: RT @kevino80 Even small firms are getting hit with license compliance fines. http://tinyurl.com/lu673m #
- RT @rwang0: Tuesday’s Tip – 3 approaches to return shelfware #SLP #ContractStrategy #Enterprise Apps #ERP #Maintenance http://bit.ly/3rWpEP #
- RT @JasonAnderman: (@SE_blog) Stop fraud now – use the contract to reduce the risk of being duped http://bit.ly/abGLR #
- RT @fscavo: Some interesting analysis in the comments, on economics of SaaS “maintenance” costs RT @AbridgedMind http://bit.ly/2Ej9xn #
- I’m looking for individuals willing to read/comment on an advance copy of a negotiation skills book. Interested? email@example.com #
- 6 Reasons to Negotiate (Bacharach Blog) http://bit.ly/1jn0tV #
- RT @hitchandplow: New blog entry: Nicolas Sarkozy resumes fight against illegal downloads http://bit.ly/NKisT #
- Cash-for-Clunkers Value May Hinge on Buyers’ Skills: http://bit.ly/14UDjq #
- Kuroshio Sea – 2d largest aquarium tank in the world – (via @kottkedotorg) – load it up in HD and go full screen: http://bit.ly/HIrjm #
- Collaborative negotiation strategies: http://bit.ly/3Geix #
- RT @doctorow: My response to BBC sig: http://smallprint.netzoo.net/reag/ < The Anti-EULA. Love it. #
- I need one more reviewer for my new book on negotiation. It’s a relatively quick read – besides, you might learn something. #
- RT @drjimanderson: Real Deals Use Real Money and Sales Negotiators Never Forget It: http://bit.ly/zpUoV #
- Article on negotiation that supports the first 2 of the 5 Fundamental Skills for Effective Negotiation: http://bit.ly/e7IzG #
- Bezos admitted fault. I would love to see someone sue now. http://bit.ly/U6Erl #
- RT @spendmatters: lessons learned from dating — how to flirt with suppliers http://bit.ly/2EXSL0 #
- Good article on ALI S/W Principles, but ultimately a non-issue if you disclaim its applicability. http://bit.ly/476sz #
- RE: @park3 I’m not sure about the quality of the documents from FirstDocs, but generally speaking, I’m a little worried… http://disq.us/1b0c #
- Ent InfoMgmt issues to consider in the converg of eDisc and eCompliance (LawTech Guru): http://bit.ly/rQAwn #
- Microsoft finally giving people a choice on browsers in the EU: http://bit.ly/oMRNl #Microsoft #
- RT @stephenodonnell: Is software licensing for virtualization fair? http://bit.ly/13J5FH #
- Nancy Hudgins on Starting a Successful Negotiation: http://bit.ly/UmoDm #
As many are reporting, Amazon.com “recalled” an e-book remotely in response to a request by a publisher. This is all kinds of scary and most folks are centered on the purely tangible nature of the problem. I’m also concerned about the precent it sets, but I’m more concerned about the sapping of intellectual property rights that seems to be yet unexplored by these articles.
When you buy a book, you’re actually completing two transactions. You’re purchasing the paper – the tangible product. But you’re also buying a copy of the story itself – the intellectual property. Each of these has distinct legal implications and over the years, laws have been developed to help protect not only the customer/consumer, but also the author and publisher. The physical aspect protecting the consumer is that you have the ability to change your mind about your purchase (ie: you can return the book assuming you don’t damage it and that the transaction wasn’t noted as “all sales final” (though this isn’t an absolute bar to return)). Retailers are likewise allowed to return what is returned to them – they have even more flexible return policies with their distributors. And, as we’ve seen in the prior articles, folks are in an uproar about the idea that a retailer would come to your house to automatically take-back things you’ve purchased simply because their distributors wanted them to do so.
The other transaction – the one for the intellectual property – is much more interesting (IMHO).
Copyright is the protection most books are afforded. When you buy a book, you have the right to read the story, burn/destroy the book, talk about the story with anyone, and heck, you can even resell the book (this is all part of what is known as the “first sale doctrine”. What you can’t do is make copies of the book. If you sell it to someone else, you can’t keep a copy for yourself, too (this is the issue with software, music, movies, etc being “shared” online). But short of sale, the ownership in the copy is yours. Therefore, it’s my argument that Amazon.com’s behavior amounts to theft – both of the tangible item AND the intellectual property.
The usual problem with pursuing this claim is that a service provider is smart enough to make device owners agree to some form of Terms of Service. I would’ve thought that the Kindle ToS would have even been so bold as to allow Amazon an unrestricted right to do what they did. But it doesn’t (Amazon Kindle ToS as of 2/9/2009):
Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon. [Emphasis added.]
I have other problems with this document, of course (such as the restrictions on resale). But on its surface, Amazon grants a perpetual license to the purchased content. So through their behavior, following their own Terms of Service, they’re in breach. But we won’t hear about any suits as the ToS restricts claims to confidential arbitration and limits damages to the price of the device.
For its part, Amazon says that “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.”
[Update: Amazon’s Herdener (the source of the above quote) actually said more:
These books were added to our catalog using our self-service platform by a third-party who did not have the rights to the books. When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers. We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.
This doesn’t really change anything. Even if an unauthorized party sells you something they don’t own, so long as you don’t know that the item wasn’t theirs to sell, you retain ownership as a “bonafide purchaser.” I’m glad to see that Amazon won’t remove books in the future, seeing that they weren’t supposed to do it in the first place.]
Eric Goldman on “Amending this Agreement whenever we want” (the Harris v. Blockbuster case from earlier this year). Dead on, as usual, so I’ll repeat his mantra here: “STOP PUTTING CLAUSES INTO YOUR CONTRACTS THAT SAY YOU CAN AMEND THE CONTRACT AT ANY TIME IN YOUR SOLE DISCRETION BY POSTING THE REIVSED TERMS TO THE WEBSITE.”
This is perfect and absolutely wonderful. Too bad they’re not tracking more.