NET(net), Inc.


FOSS licenses upheld! by jigordon
February 23, 2010, 9:32 am
Filed under: contract types, copyright, current events, law, open source, source code

After a five-year struggle in US Federal District Court, Robert Jacobson recently prevailed in his copyright infringement claim against Matthew Katzer as a result of Katzer’s alleged misappropriation of open source code from Jacobson’s Java Model Railroad Interface project.

You can read all of the story in more detail at ConsortiumInfo.org.  The end result is a huge win for open source developers as a result of three key findings by the District Court:

  1. Violation of an open source software license constitutes copyright infringement, not just breach of contract (this was first upheld by the Federal Appeals Court in 2008 in this case).
  2. Use of open source code without attribution is a violation of the Digital Millennium Copyright Act.
  3. These violations entitle the Plaintiff (Jacobson) to monetary damages – which, as they’re based on violations of copyright law, are potentially much more substantial than those which may have been limited by contract law.

There are some mitigating circumstances in that the results in this case are not yet dispositive of all future violations, as the ruling of a US District Court is limited to absolute applicability only in its geographic district.  The concern is that a Federal Appellate Court (including the US Supreme Court) could overrule or otherwise reverse this decision.  Worse yet would be another US District Court coming to a different conclusion with a similar set of facts.

But for now, FOSS developers can rest a little easier knowing that their creations are protected by copyright law.

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Third Party Providers by jigordon
January 4, 2010, 9:32 am
Filed under: current events, law, maintenance, Outsourcing, Uncategorized

Happy New Year!

I saw an interesting article today that high-tech vehicles were posing problems to some mechanics.  The mechanics claim that they can’t afford the thousands of dollars that are necessary for them to obtain the specialized diagnostic tools for each auto manufacturer.  The manufacturers are claiming that they’re trying to protect their intellectual property.

Sound familiar?  Yup, it’s exactly like the issues Frank Scavo and Ray Wang have written about with regards to third-party software providers being blocked from performing various maintenance/implementation tasks by the contracts and software licenses and services agreements of certain primary vendors.

On the automotive side, it’s apparently gotten to be such an issue that there’s a congressional bill called the Motor Vehicle Owners Right to Repair Act of 2009.  The stated purpose of this Bill is to “protect the rights of consumers to diagnose, service, maintain, and repair their motor vehicles”.  What’s really interesting are the Bill’s findings, among which say that:

  • Motor vehicle owners are entitled to choose which service provider will diagnose, service, maintain, or repair their motor vehicles.
  • Promoting competition in price and quality… will benefit consumers.
  • Only service technician with the necessary tools and information can access the computers to perform diagnosis, service, maintenance and repair…

And the requirements of the Bill, specifically:

  • Duty to Make Tools Available:  The manufacturer of a motor vehicle sold, leases or otherwise introduced into commerce in the United States must offer for sale to the motor vehicle owner and to all service providers on a reasonable and non-discriminatory basis, any tool for the diagnosis, service, maintenance, or repair of a motor vehicle, and provide all information that enables aftermarket tool companies to manufacture tools with the same functional characteristics as those tools made available by the manufacturers to authorized dealers.
  • Replacement Equipment: The manufacturer of a motor vehicle sold, leased, or otherwise introduced into commerce in the United States must offer for sale to motor vehicle owners, and to all service providers on reasonable and non-discriminatory terms, all equipment for diagnosis, service, maintenance, or repair of a motor vehicle.

The only thing the Bill protects for the manufacturer are things that are actual trade secrets.

Wow.  Of course, there are a LOT of people (and more specifically, a lot of trade association and advocacy groups) behind this Bill.

Could you imagine what would happen if this passes and someone realizes that software in cars isn’t that dissimilar to plain old enterprise software?  If only there was a trade association group for buyers of enterprise software apps.  😉

But let’s talk about the other side of the issue for a moment.  Do consumers have a right to have third-party companies provide service?  A right?  No.  I don’t think there’s a right to be able to have third-party providers.  [Keep in mind, when we’re talking about rights, we’re talking about things equal to “life, liberty and the pursuit of happiness…”.]

Absent a right, should third-party providers still be allowed/encouraged?  I’m really torn on this.  On one hand, I’m all in favor of things that inspire commerce.  I like behaviors that create business, allow more people to work… and of course, things that drive down costs and dissipate apparent monopolies.  On the other hand, an individual or organization who creates something should be able to protect their idea/invention and not have to give up the secret sauce simply so that other people can benefit.  But there seems to be a line somewhere that once you cross it should allow for third-party companies to fill available niches.  Maybe it’s where the original vendor is no longer able to provide a quality-level of service.  Maybe it’s a situation where the original vendor is charging exorbitant rates.  I’m not sure.

Anyone have a solution?

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This Week on The Web 2009-10-11 by jigordon
October 11, 2009, 9:32 am
Filed under: communication, contract management, contract terms, contract types, current events, fun, law, negotiation, risk matrix, SL Ed Series, TWoTW

These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in 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.

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This Week on The Web 2009-09-28 by jigordon
September 28, 2009, 9:32 am
Filed under: copyright, current events, insurance, negotiation, TWoTW

These are the discussions that happened around the web this week – maybe you already read about them, maybe you need to again.  Come join the party on twitter (follow me here and you’ll participate in 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.

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This Week on The Web 2009-09-13 (my birthday edition) by jigordon
September 13, 2009, 9:32 am
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.

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Content, Value and Commoditization by jigordon
September 11, 2009, 9:32 am
Filed under: current events, templates

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.)

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This Week on The Web 2009-09-06 by jigordon
September 6, 2009, 9:32 am
Filed under: communication, confidentiality, contract management, copyright, current events, Five Fundamental Skills, information security, IP Indemnity, SaaS, trust, TWoTW

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 and “<” which means that I am commenting on what came before it.

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This Week on The Web 2009-08-30 by jigordon
August 30, 2009, 9:32 am
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.

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My Lego Love is Fast Fading by jigordon
August 28, 2009, 9:32 am
Filed under: copyright, current events, fun

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?

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Jeff Gordon on Supply Excellence by jigordon
August 26, 2009, 9:32 am
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!

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