Software Licensing Made Simple

Law Firm for Software, SAAS and IT Companies

Blog: Software Licensing Made Simple

What Can You Learn From the Justice Department Suing Oracle?

September 01, 2010
What Can You Learn From the Justice Department Suing Oracle?
Quick background: Oracle was sued on July 29, 2010 by the Department of Justice alleging that Oracle overcharged the government when it licensed its software. How does this work? Well, when a company wants to sell a significant volume of software to the government they file what is called a CSP-1 (Commercial Sales Practices Format chart) as part of getting on a government Schedule. On this form the vendor describes their pricing, products, services, etc., by tier of buyers (direct, channel, etc.) and most importantly their discount practices. The government wants to know that no one is receiving better pricing for...
Posted By Jeremy Aber

Why EDUCATION is So Important to Software or SAAS Contract Negotiations

August 24, 2010
Why EDUCATION is So Important to Software or SAAS Contract Negotiations
Think about it. One of the most important things to remember -- maybe the most important thing -- is that it is really important to educate your customer, partner, etc. about your Software or SAAS model when negotiating the software eula or SAAS contract.  This is important as with all IT based contracts the buyer needs to know what they are buying, as they are purchasing an 'intangible' item. As they can't touch or feel it, it is incumbent on the seller to educate the buyer about  what they are selling, what the customer can expect, how it is paid for,...
Posted By Jeremy Aber

What Does a Software/SAAS Company Need to Know About the Creative Commons License Program?

August 17, 2010
What Does a Software/SAAS Company Need to Know About the Creative Commons License Program?
Any software or SAAS executive should learn about this, even if this does not affect their software EULA or SAAS contract. This is just one of those things to be aware of, because it is a big deal in the licensing of copyrighted material. So what do you need to know about this? What is the Creative Commons License Program. It is a new way to license copyrighted material, as essentially there is so much confusion out there regarding what people can and cannot do with content, images, music, etc (especially on the Internet). The fundamental idea is to try to...
Posted By Jeremy Aber

SAAS Revenue Recognition (boy, these rules are different)

August 04, 2010
SAAS Revenue Recognition (boy, these rules are different)
While I know a little bit about SAAS accounting issues, there are people that know a lot more about it. I ran into Jay Howell (from BDO Seidman) at a recent SAAS seminar I presented at (regarding SAAS contracts) in Washington DC (he is the technical guru on SAAS issues at BDO), and I thought I would share some of his presentations and materials (really good stuff for you SAAS accounting/finance types). Any SAAS business should have the right person look at this, especially as these new rules took effect on June 15, 2010. Before I give you the links, I...
Posted By Jeremy Aber

Reverse Engineering Software for Interoperability – LAW UPDATE July 2010

July 27, 2010
Reverse Engineering Software for Interoperability – LAW UPDATE July 2010
This is a hot issue, so whether you have a software EULA or SAAS contract protecting your software, you may want to learn more about reverse engineering and its legality (i.e. looking under the hood). In essence, most software and SAAS contracts specifically state that the user is prohibited from reverse engineering the software; by the way, this is something that should be addressed in the contract as copyright law does not provide this type of protection. There have historically been no real exceptions to the contractual prohibition on reverse engineering, but in the past decade or so there has...
Posted By Jeremy Aber

3 PRACTICAL Things to Remember About Collecting Sales Tax on Software

July 19, 2010
3 PRACTICAL Things to Remember About Collecting Sales Tax on Software
Ok this is a complex issue, but let me see if I can put together a few practical things to remember (at least from the perspective of a software attorney). 1) This is a State Law Issue. You really have to look at the rules on a state-by-state basis. Some states don't tax software and others do (example, NY); Some states only tax off-the-shelf software but not custom software (example, NC); and Some states tax the software if you send a CD/media but not if it is downloaded from the Internet (example, CA). Takeaway: Figure out where your customers are, and then look at that state's...
Posted By Jeremy Aber

Installed (not used) or Purchased Licenses. Which One Does a Customer Owe You $ For?

July 15, 2010
Installed (not used) or Purchased Licenses. Which One Does a Customer Owe You $ For?
While most customers may say they only want to pay for software eula licenses they use (not all installed), a recent reported case involving the Los Angeles County Sheriff's Office says they need to pay for what is installed (even if they are never used). Without going into a lot of detail, the court ruled that LA County Sheriff's Office must pay the software vendor for the licenses installed (in the amount of $210,000), even if they were not used. Plus, the court awarded the software vendor more than twice the damages award in attorney's fees and costs (nearly $560,000). Q: So what is...
Posted By Jeremy Aber

2 Tips to Determine if You are Selling Legal Simplicity or Complexity.

July 06, 2010
2 Tips to Determine if You are Selling Legal Simplicity or Complexity.
Ok as a software attorney, what I am asking is your end user (EULA or SAAS Contract) or channel  (oem, reseller or distribution agreement) contracting process simple or complex? Have you thought about it? I find that most growing Software, SAAS or IT companies don't really think about these kind of issues (or at least if they do, it is on the bottom of their list). Let me see if I can add this to your to do list, or help move it up the list. Step 1: End User and Channel Contracts. Your end user and channel contracting process should be...
Posted By Jeremy Aber

3 Privacy Tips for a Software or SAAS Company (Courtesy of the US Supreme Court in 2010)

June 28, 2010
3 Privacy Tips for a Software or SAAS Company (Courtesy of the US Supreme Court in 2010)
Well, while the US Supreme Court in its decision in the case of City of Ontario vs. Quon (June 17, 2010)--an employee privacy expectation case (actually, a sexting case involving a SWAT officer)--intentionally tried not to provide a lot of specific guidance, there are some take aways. 1) Computer/Technology Usage Policies Matter. The US Supreme Court seemed to make a big deal about the fact that that the computer policy in this situation was clearly communicated, as were changes to the policy (i.e. its applicability to text messages). Note to Self: Create policy and make sure we communicate material changes to all employees. 2) Intent of the...
Posted By Jeremy Aber

Everything a Software or SAAS Company Needs to Know About Copyrights!

June 17, 2010
Everything a Software or SAAS Company Needs to Know About Copyrights!
Ok, maybe not everything, but as a software copyright attorney I suggest that you read these five blog posts if you run a Software, SAAS or IT company. Let me summarize why. First, you need to know how copyright fits in with other intellectual property. - What is Intellectual Property? Second, you should understand the basics of copyright law. - 4 Things to Remember About Copyright Law. Third, you should think through the benefits of registering your copyrights. - 4 GREAT Reasons to Register Your Software for Copyright Protection. Fourth, is it worth trying to obtain copyright protection for your software's GUI? - Can You Obtain Copyright Protection for Your...
Posted By Jeremy Aber

Contract or Policy? Which One Does a Software Company Need and When!

June 10, 2010
Contract or Policy? Which One Does a Software Company Need and When!
While this is a complex issue (like many legal issues), from the perspective of a software and SAAS attorney, I think there are some practical tips to remember when thinking about when to use policies and when to use contracts. FIRST, THE DEFINITIONS. Policies are generally defined as a set of basic principles and guidelines, formulated and enforced by the governing body of an organization, to direct and limit its actions in pursuit of long term goals (i.e. soft commitments).  Contracts are generally defined as a voluntary, deliberate, and legally enforceable (binding) agreement between two or more parties (i.e. hard commitments). SECOND, 3 TIPS TO...
Posted By Jeremy Aber

4 GREAT Reasons to Register Your Software for Copyright Protection!

June 07, 2010
4 GREAT Reasons to Register Your Software for Copyright Protection!
Most people may not realize that there are 4 GREAT reasons to register your software for copyright protection with the US Copyright Office.  As a software copyright attorney or lawyer, I recommend this for every software based company, whether you are licensing your software or providing it as a service.  So here goes. 1) EASY. It can be done by yourself or with the help of a software copyright attorney. Your call, but any good lawyer will tell you to consult with a software copyright attorney before you file.  In general though, it is not hard to file for copyright protection, so this...
Posted By Jeremy Aber

Hiring an Offshore Software Developer? 5 Things to Remember (a Software Attorney’s Perspective)

June 03, 2010
Hiring an Offshore Software Developer? 5 Things to Remember (a Software Attorney’s Perspective)
As a software attorney, I think there are a few practical things to think about when using an offshore software developer/outsourcing software development, and negotiating the software development agreement. As you know, this has become commonplace, even for smaller Software, SAAS and IT services companies. Here are a few thoughts, from a software attorney. Ownership Rights. While I am sure you saw this issue coming, make sure you document it very clearly, and address 'work for hire' copyright, pre-existing code, open source licensing, patent issues, etc. There is a lot to think about so dig in and get it right. Termination Rights....
Posted By Jeremy Aber

Can You Obtain Copyright Protection for Your Software’s Graphical User Interface (GUI)?

May 28, 2010
Can You Obtain Copyright Protection for Your Software’s Graphical User Interface (GUI)?
As a software copyright attorney/lawyer, I think every Software, SAAS or Cloud company should think about this issue, even though this is a complex legal issue. Think about it. Most software companies know that they can obtain copyright protection for their source code, but what about their GUI? Well it depends (as any good lawyer would say). The BASICS of Copyright Law in Relation to GUIs 1)  Expressions are Protected, but Not Ideas. The ideas contained in a GUI layout will not receive copyright protection, but if there is a unique expression of an idea then there may be some protection. 2) An 'Artistic' Layout Should...
Posted By Jeremy Aber