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.
- RT @TradeSecretLaw: Vary the Speed and Timing of Your Negotiations for a better deal. http://bit.ly/XP5W9 < Good. Are there better examples?
- RT @johnlwatkins: New blog post: Why Judge’s confidentiality rule may increase arbitration and mediation. http://bit.ly/j9PYj
- RT @TOpatentlawyer: Microsoft patents a way to make more money from MS Office http://ow.ly/tGOg (via @slashdot)
- RT @dahowlett: Qu: do software buyers make rational decisions? Methinks ‘not often.’
- The Cloud Computing Consultant: http://bit.ly/2lSgVQ (via @dealarchitect) < Hilarious and NSFW.
- MS attempts to patent software licensing based on time: http://bit.ly/kRcsO < I hope there’s a solid prior art search (and practice).
- RT @glambert: “When is a blog a sponsored endorsement?” (via DLA Piper) http://bit.ly/peWyj
- RT @CopyrightLaw: “NBC And CNBC Sued For Infringing Use Of…FONTS” http://tinyurl.com/yfob39h
- RT @jayshep:Best law school advice? “Say hi to Heidi. She’s in our section.” Been married to her 13 years with 2 beautiful daughters.< 🙂
- RT @TradeSecretLaw @worklawyer: Don’t lecture. Tell stories. Emotion is more persuasive than facts. < works w/ negotiation, too.
- RT @matthomann: Three great questions to help you remove ego from your (and your clients’) decision making: http://bit.ly/isPkL < Excellent!
- RT @CopyrightLaw: “More fair use follies — copyright infringement by court filing?” http://tinyurl.com/yh75nfc < I’m loving @copyrightlaw
- RT @gfiremark: Termination rights: music to artists’ ears http://bit.ly/15O7Hq
- RT @CopyrightLaw: Resale of International Textbooks to US Students Not Protected by First Sale Doctrine http://tinyurl.com/ybqo828
- RT @gfiremark: Was a Contract Formed? http://bit.ly/OvsQs < K wasn’t conditioned on others’ perf. Can’t wait to see the pics.
- @VBalasubramani OK… so who’s going to take this to the SCOTUS? And what’s the third case: Vernor, Cincom and…???
- RT @VBalasubramani: what’s the difference between a purchase and license of software? http://bit.ly/QSMwP < Congrats! Great job.
- Cool trademark search/registration site: http://www.trademarkia.com
- Andy Clarke (@cowshedstudio) on being a Contract Killer: http://bit.ly/Bv4pP <Good article by the kind of person I want as a contract client.
- RT @highrockmedia Freelance contracts: Do’s And Dont’s – http://bit.ly/hiXLg (via @smashingmag) < I’m commentator #39.
- SEC charges former CEO of IBSG with fraud in announcing fictitious licensing agreements: http://bit.ly/3NLp6U
- RT @gtiadvisors: Gmail, AOL, Yahoo! all hit by webmail phishing scam http://bit.ly/3UN3CM < What does this say about the USERS? 🙂
- RT @ITLeadersForum @alltop The Twitter decision flow chart – fun way to think about our use of Twitter…http://retwt.me/CgU4
- RT @marinafeehan: Nixon Peabody Says Student Recruitment needs Overhaul. http://bit.ly/CJsHL < Translation: We don’t want to go it alone.
- New post at licensinghandbook.com : FTC Required Disclosure http://bit.ly/18TPsw
- RT @WieseLawFirm: What are you saying that you aren’t saying? New Blog Post up on the importance of Body Language. http://bit.ly/4gSB7k
- RT @Molly_McDonough: Need a social media/copyright refresher? Take this @bobambrogi quiz http://bit.ly/EyHq
- RT @DanaNewman: Guns N’ Roses sued for copyright infringement: http://bit.ly/NbvWI
- Court Re-Affirms First Sale Doctrine Applies to Licensed SW – http://bit.ly/2fNwsI < Compare w/ Cincom http://bit.ly/IJKVR
- Just use whatever the hell you click “yes” to the first time you load up Resident Evil V to get you started. > http://bit.ly/3WiF51 < Oh my
- Stanford loses patent rights b/c a researcher signed a partner co’s visitor agreement (@ontechcontracts): http://bit.ly/vyPit
- RT @gtiadvisors @kaedron: Microsoft confirmed that thousands of Hotmail accounts compromised in a phishing attack – http://bit.ly/1kpIVT
- RT @fscavo: Expect to hear more of these. From @DavidLinthicum “SaaS Horror Stories Are Starting to Appear” http://bit.ly/kpFT4
- RT @Francineward: Intellectual property- Should biz methods be protected by patent? What will the Supreme Ct say? http://tinyurl.com/ya84d57
- RT @BrianNFletcher: Reading: Red Hat files briefing in support of stopping software patents http://sbne.ws/r/2WRe
- RT @DanaNewman: Dreamworks’ “Flushed Away” sued for copyright infringement: http://bit.ly/p9dOa
- New post at licensinghandbook.com : Announcing the Software Licensing Education Series on DVD http://bit.ly/7RNjZ
- RT @JoeTalik: Many firms unhappy with procurement outsourcing deals http://bit.ly/2lcPP < Don’t outsource what you don’t already do well.
- RT @gfiremark: Excellent Review of “most prolific scholar of copyright in history” http://bit.ly/2dGAws
- Have you downloaded my free Software Licensing Risk Matrix yet? http://bit.ly/FreeRiskMatrix
- RT @raesmaa: Do your lecture notes violate your prof’s copyright? Holy crap! http://bit.ly/1yyPoT < Read comment #8 for the best analysis.
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)
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 #
Filed under: risk matrix
I was watching a video today by Cory Doctorow about the copyright wars. He’s a great speaker and a wonderful author. He gives away everything he writes for free. Which is much easier for him, as a NYT best selling author. 🙂
But I would like to get the Software Licensing Risk Matrix out to many more people. So, if you go to my Products Page, you find it available for $1.00. That’s the cheapest I can go in the PayPal and Shopping Cart systems.
I think I can even go cheaper. Which is to say, click here to download it for free. If you like it, I hope you’ll come back and click the donate button below and I’ll leave it to you to decide how much you think it’s worth.
When you’re about to enter a contract negotiation, and assuming you’ve not been successful in using your templates, the first step is to review and redline the agreement. This How-To is intended to teach you the obvious (and not-so-obvious) skills of redlining.
- Ordinarily, I suggest a quick once-over. This is a perusal designed to see if the major sections of the contract are present. Using a checklist like the Software License Risk Matrix will help you verify that all of the headlines are covered. Not all contracts will contain the same sections, of course, and just because a contract has a stated Header doesn’t mean that the language in that section actually matches the Header’s description.
- For any “missing” sections of the agreement that you would like to insert, create new sections in an appropriate place (as you read an agreement, you typically have a feel for where certain sections will need to go. You’ll also have to make adjustments based on numbering schemes or sub-numbering schemes to match the original – so watch the blind copy-pasting.
- Now, hopefully you’ve got the contract in Microsoft Word (or other word processing format) to facilitate an easy redline. Enable Word’s “Track Changes” feature via the Tools menu. Advanced users will also note that you can quickly turn Track Changes on and off via the green-light at the bottom of that document’s window next to the “TRK”. If the other side has sent you a document via PDF and refuses or is otherwise unable to send you a Word version, use the free service at www.pdftoword.com run by the great folks at NitroPDF. This service will convert your PDF almost flawlessly and e-mail you a converted Word file.
- Read each section carefully. Start with the definitions and make sure that all defined terms have a definition (many times this isn’t the case). Now march your way through the agreement.
- Where you do not like particular language, the Track Changes feature allows you to “delete” the language – but instead of actually removing the offending words, it changes the color and puts a strike-out line through the deleted language.
- On the flip-side, when you insert language, Track Changes will insert your new words in the same color as the deleted text, only this time is underlined.
- Where possible, suggest new language that you’d prefer to be in the agreement rather than just strike-out the language you find troublesome. This will provide a great basis for a negotiation. If you simply delete language, I would assume that you simply want the language removed and nothing else added. When this is the case, I will sometimes make a note to tell the other negotiator why I made a particular change: “[JeffNote: I don’t believe I should have to indemnify you for this.]” This call-out makes it easier on the other reader to accept or reject your change, as your explanation might be all that’s needed for them to accept your modification.
- Then, when you’re the recipient of a redlined document, your first task is to review the changes to see if any of them are acceptable without discussion. If so, simply right-click on the change and select “Accept Deletion” or “Accept Insertion” from the pop-up menu. HOWEVER, DO NOT SIMPLY REJECT CHANGES! This would create a presumption on your part that you shouldn’t make without talking to the other side first. Rather, leave unacceptable changes in redline format as open for discussion.
- As the second reviewer (and the presumptive owner of the original), you might feel some initial pain at making any changes at all to your template. Remember, however, that you’d do the same thing to someone else’s template. Additionally, while I’m sure you wrote your template with every conceivable situation in mind, there might be a situation you didn’t conceive. In other words, give the redline a chance. Read it with the intent to accept as many changes as you possibly can. This is a negotiation, afterall.
- If you need to suggest language back to the first reviewer, Track Changes anticipates this and will (unless you make changes to the Preferences settings) automatically assign each individual reviewer a different color. If you place your pointer over a particular change, Word will tell you the name (as set in Word’s preferences) of the editor for that change and the date/time of the change. If your name doesn’t appear on changes, make sure that you’ve entered your name in the preferences settings and you’ve also unchecked the box that has Word remove the name of the reviewer as part of its security process.
- So now you have a document that should have fewer redlines than when the first person was done, might have some additional redlines from the document’s original author and the document is now ready for negotiation.
- Set aside plenty of time for negotiation – rushing is to neither party’s benefit. You do not have to make it through the entire contract in a single session.
- Once pleasantries are out of the way, discuss who will be the document owner (I typically volunteer… it keeps me alert and I feel much better about how the changes are completed).
- During the negotiation, systematically review the agreement from the top on down. Continue to make any new additions or deletions in redline. But accept/reject prior changes as agreed during the negotiation. Thus, when done, you’ve got a document that ONLY has points of contention or new language changes still in redline. In rare cases, in a trusting relationship, you might agree to make “blackline” changes. If so, never breach that trust.
- OK, so after a few back and forth discussions, you should have resolved all open issues. Take one more quick review to look for any open issues. Use Track Changes to see if there are any unseen remaining edits (use the “Next Change” button to see if there are any you missed).
- What you’re left with is a blackline document – everything’s in black and white. GREAT JOB!
- If you’ve got to do a redline by hand, here are a few additional suggestions: a) Don’t. Seriously. Scan and use PDFtoWord. b) But if you have to, learn to write very small in the margins with tiny arrows indicating where new language would go. c) Actually strike through (with a single line) each word you don’t like. d) Don’t waste time handwriting in entire new sections. Just note what new ones are necessary – add new language electronically later. e) If you must, create a separate document and create an amendment document where you describe each deletion and/or insertion. Again, this method is HIGHLY outdated, but some organizations just can’t seem to get away from it.
Once you’re done, I sometimes also recommend using a tool called DeltaView (or even Word’s own Document Compare feature) to compare the original against the finished product. This helps you check all of the redlines that were actually agreed upon and gives you a level of comfort that neither party tried to sneak in a change the other party didn’t accept. However, unless I have reason to believe that the other party isn’t trustworthy, I typically have been diligent enough through each turn of the document to not require this final step.
All that’s left now is execution and managing post-contract obligations. But that’s another day.
Thanks to everyone who entered my little contest last week. All non-winning entrants received a free copy of the Software License Risk Matrix, just for playing.
Congratulations go to Andrew from lawshucks.com! He was the winner of the random drawing from all correct entries – deciphering the title of my post: Eight weeks til BN as a reference to the Beastie Boys seminal album, Licensed to Ill – and specifically to the song, No Sleep Till Brooklyn.
For his extensive knowledge of 80s white Jewish rappers (the only others being 2 Live Jews, which, while researching the link and how to find them, had way more albums than I remembered), Andrew received the complete set of Software Licensing Education Series videos, a $225 value.
Again, congratulations to Andrew – and thanks to everyone who entered. Keep looking for other ways to win free stuff. 🙂
In the last several years, I’ve had the pleasure of conducting a wide variety of software licensing training programs all around the country. Attendees that I’ve talked with at these sessions have all expressed a desire to continue their software licensing and contract negotiation learning experience once they’ve returned home. For the first time, software licensing instruction is now available in a self-paced progressive learning series.
Announcing the release of the first 8 sessions of the Software Licensing Education Series!
Designed for the busy or on-the-go professional, the Software Licensing Education Series (SLES) is video-based training on the complete gamut of software licensing topics. Presented in a college-course level format, with topics increasing in complexity and building upon prior lessons, the SLES allows an audio-visual learner another way to gain knowledge on licensing topics. Each video is approximately 20-30 minutes in length, so each Track contains about 2 hours of expert instruction in core software licensing topics!
The 100 Track videos include:
SLES 101 – The License Grant
SLES 102 – Delivery, Testing & Acceptance
SLES 103 – Fees and Payment Terms
SLES 104 – Cross-Platform Portability, Updates, Upgrades and Future Pricing
The 200 Track videos include:
SLES 201 – Confidentiality
SLES 202 – Termination
SLES 203 – General Terms 1
SLES 204 – General Terms 2
(300s-500s Tracks are currently in production and will be released shortly!)
Videos are formatted for a computer or portable video player (such as an iPod) and consist of a slide-show format with voice-over instruction, so you can even learn just by listening!
As promised, purchasers of the Second Edition of the Software Licensing Handbook are eligible for a discount on the purchase of a Track from the SLES. When redeeming your free Software License Risk Matrix, you’ll receive a coupon code for the SLES via e-mail.