March 2010

1) Getting To Yes – by William Ury and Roger Fisher. Negotiating Agreement Without Giving In. Amazon Link

2) Difficult Conversations -by Douglas Stone, Bruce Patton, Sheila Heen, and Roger Fisher. How to Discuss What Matters Most. Amazon Link

What is the Purpose of a End User Agreement (EULA or SaaS Agreement)?

While this may seem basic, from the perspective of a software attorney, it is something that I often discuss with clients. If you think about it, end user agreements (whether an EULA or SAAS Agreement) are arguably more important than contracts in other industries. In most industries, the buyer purchases a tangible product they then own, or generally knows what type of services they will receive. However, in the IT world it is not that simple. As the buyer in the IT world does not ‘own‘ the product and often is unsure of exactly the type of service they will receive, I suggest that the contract is more important in this context and can be very helpful to the selling process.

Let me explain further.

1. The contract should explain/support the business model of the seller, and be 100% consistent with that model.

2.The contract should set the right expectations, so that the customer knows what they will and will not receive, and what the seller will and will not provide.

3. The buyer should be able to read and hopefully understand most of the contract without going to their attorney.

4. The contract should of course address what happens if things go wrong, but I suggest that is not the sole purpose of a contract (see 1-3 above for main purpose).

I realize this is a very simple take, but that …

Here are the 4 things to remember, from the perspective of a software copyright attorney.

1) Copyright Attaches Easily. It is relatively easy to get basic copyright protection (you know that (c) Copyright Notice on the bottom of text, articles, websites, etc.) This is something to keep in mind, as claiming that a work is protected by copyright is a good first step. While providing the notice is not technically required, it puts people on notice that someone is claiming ownership of the work. So this is something to use often with works you want to protect.

2) There are Essentially 4 Rights. If you own a copyright, you have the exclusive right to:

• Reproduce,
• Distribute,
• Create Derivative Works (creating another work based on the work), and
• Display/Perform Publicly the work.

So this means that the copyright owner has the right to stop someone from reproducing, distributing, creating derivative works and displaying/performing the work publicly, and it will be a violation of federal copyright law if someone were to do so without permission.

3) Lots of Exceptions. This is where it gets more complicated. Copyrights

Also there is a concept called Fair Use, which essentially says that someone can use your copyrighted work without permission in certain situations.

• do not apply or protect ideas, concepts, methods ideas or discoveries, etc.,
• do not apply to common properties in nature (calendars, charts, etc), and
• do expire.

4) Many Benefits to Registration. If there is one thing to remember about copyright …

The New Blogging and Endorsement Guidelines by our Friends at the FTC

I have been tracking this issue for a while, but I wanted to wait until I had a concise and insightful perspective before I blogged about it. So here goes.

In essence, the Federal Trade Commission (FTC) published these guidelines to address what some creative advertisers were doing with blogging and in the social media arena (Facebook, Twitter, etc)  (i.e. paying bloggers to endorse their product without the bloggers actually believing in the product or maybe without even using it). The FTC is really  focused on the product advertisers, and not bloggers or users,  unless the blogger is a sponsored endorser (i.e. receiving something ($, product, etc.) in return for promoting the product). [By the way, the FTC has even stated that they drafted these guidelines not with the intention to sue bloggers, — I thought that was a nice touch]

A definition will help.

An  endorser is someone that publishes an:

“…advertising message those consumers are likely to believe reflects the opinion, belief, finding or experience…” of the publisher,  but is not the product advertiser.

It is obviously relevant if the person is:

(1) providing an  independent review [i.e. off the hook], or

(2) somehow compensated by the advertiser (directly or indirectly).

Examples of sponsored endorsers: paid bloggers, or bloggers that receives many free products.
If there is a sponsored endorser, then the  advertiser and the sponsored endorser could have liability …