May 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 Receive Protection, but ‘Features’ Won’t. If there is only one way to express an idea (say a drop down menu list with Save and Print), then that drop down menu will likely not receive copyright protection. However, if the drop down menu can be expressed in a more artistic manner, then copyright protection could attach. This is a hot legal issue, and a February 2010 Federal court just ruled in a copyright GUI case that the artistic and original nature of a CAD software’s GUI design (look of the icons, layout of the toolbar, etc.) provided copyright protection.

Microsoft Office’s New Ribbon. Haven’t you wondered why Microsoft made that dramatic change to Word, Excel, etc. to the new ribbon layout in Office 2007? I did, and I think that part of …

What Does Your Software EULA or Software as a Service Agreement Say About Your Company?

Interesting question. When a software, software as a service or other IT company sends its written software EULA or software as a service agreement to the customer as part of closing a deal, it is really telegraphing a message about the company and its sophistication. As a software copyright attorney, I actually think about this stuff.

The wrong message/impression would be:

1. Is this company for real?
2. This contract seems too complex?
3. I don’t understand what they are providing and what we are responsible for?
4. I need to send this to the legal department or to outside counsel?
5. I will read this later; maybe on Friday.
6. It looks like they bought this on the web for $29.
7. I think they wrote it themselves.
8. I am not sure this company knows what they are doing?
9. Is this their first sale?

None of those messages/impressions would be a good thing or help the agreement move through the process.

Here is what your EULA,  SAAS contract should be telegraphing about your company.

1.They are serious about this!
2. I understand their pricing/licensing/services model. It is very simple.
3. They seem to be transparent about the way they work and their revenue model.
4. Looks like they know what they are doing.
5. I bet they sell a lot of this stuff.
6. Looks like they have …

As a SAAS lawyer, I sometimes run into the issue of “Do I need a Software as a Service Subscription Services Agreement (SAAS Agreement) or Software EULA?”  In other words, what should I start with (software EULA template, or SAAS license agreement template). It is pretty easy, as it all depends on the primary item provided. Let me explain.

If a company is trying to define their model in their end user agreement and are unsure of the form agreement to start with, they should figure out if there is any software downloaded by the users, or if they are only providing software-as-a-service through a browser. While many companies have hybrids (some services and some downloaded software) I think it should be viewed as what is the company primarily providing.

• If they are primarily providing software through a browser, but there is some software downloaded (think Go-to-Meeting or Webex), then they would need a Subscription Services Agreement, as they really are in the SAAS business.
• However, if they are primarily providing software which will be downloaded, but there are some services provided (maybe support/maintenance/training/some services through the web), then they would need an EULA, as they are licensing their software.
• Also, some models may be more of a true hybrid, with a SAAS agreement for their online subscription service, and then a EULA for the software that will be downloaded and used with the subscription service..

Every software based company should figure out which form of …

From the perspective of a software copyright attorney, here are the 5 most important revenue recognition issues (based on my experience), for Software Agreements and SAAS Agreements.

Acceptance. Make sure there is express language in the license agreement or order that states that the software is ‘accepted’ on the order date. I can bore you with all of the reasons why, but I would simply add this one to your end user license agreement or other type of end user software agreement [in general this is more of a software licensing issue for business customers, than a licensing issue to consumers or a SAAS issue].

Warranties with Refund Rights. This is a pretty thorny issue, but in general, other than a standard limited duration performance warranty that the software will perform in material accordance with its documentation and an infringement indemnity warranty/remedy, any additional warranty with refund rights could create a real revenue recognition risk.

Future Deliverables. If you think about it, this should be an easy one. The customer is buying the license for the software (as it currently exists), so there should not be any commitment regarding future enhancements (other than standard maintenance/support) in the contract or outside the contract.

Signed Agreement. While this should be a no-brainer too, having a signed agreement (that means by BOTH parties) is critical to a final deal. While most people focus on getting the deal done, it is really not done until the agreement is signed (more …

You Lose Nothing in Software Negotiations by Showing Respect!

Here is something that costs nothing but can really help when selling software or other IT products or services, or otherwise in software negotiations. As a software attorney, I can tell you this can make a difference.

Think about it: when negotiating with a purchasing manager or member of the IT department, you are dealing with a person at the other end of the phone (yes, I have worked with people that forget this basic fact). There are probably a lot of other things going on in their mind or life, besides buying the software, so a little respect can go a long way. By the way, all this means is showing ‘regard or consideration for, courtesy or deference.’ This is not hard stuff.

This may be as simple as:

1. making sure you address/listen to all their concerns and issues,
2. don’t talk down to them (on the phone or in email),
3. under-commit and over-deliver (don’t do the opposite),
4. realizing they are not simply a check box in the buying process, and
5. remembering that they will be taking a risk (putting their reputation on the line) if they select you as a vendor.

When I work with software or cloud based clients as an attorney, I try to remind them of this very simple truth.…

As a software attorney, I actually think about issues like have SaaS agreement templates become commoditized (= not distinguishable or different). My short answer to this question is no. Let me explain.

There are many websites that sell form agreements for less than $100, and they could be a great place for a company with a very limited budget to start from. Of course (as an attorney) I would recommend that any form contract buyer talk to an attorney before using the form (to make sure it works for them and is consistent with their SaaS model, etc.).

Think about it this way, SaaS agreement templates serve an additional purpose; they explain and educate the customer on how your SaaS model works and what they will be receiving (as no ‘tangible property‘ will be provided). For example, I propose that a SaaS agreement for one company should not be used by another company as the SaaS models may be different (e.g. data ownership, customer restrictions, warranties, support, renewal, payment, transferability, etc.).

As a result, I think that SaaS agreement templates have not become commoditized and (more importantly) won’t become commoditized. I am not saying don’t buy a form online, but I am saying if you do, have it reviewed by an attorney who is very familiar with contracts of that type. Let me know if you agree or disagree?

Disclaimer:

This is for informational and educational purposes only, and is not legal advice. Consult …