2010

I have found it interesting that there is too often a different perspective between when business people and lawyers think a Software Licensing or SAAS deal is done. I have met some business people that believe the deal is done once they orally discuss (not necessarily agree to) certain important terms. On the other hand, lawyers generally believe that deals are not done until a written contract is signed by the parties (there can be oral contracts in certain situations too, but I leave that to another day).

So why should this matter to a software or SAAS company?

Well, as a case decided on September 25, 2009 in New York demonstrates, if you are not careful about your email communications, someone may take an aggressive stance that an email exchange was a binding agreement to an exclusive license in your IP. In this case, there were many emails between the parties discussing/negotiating an exclusive license to a copyright in a hot movie (it had won a bunch of recent awards). Then I think, out of the blue, the plaintiff wrote back and essentially stated that the deal is done. The defendant responded, in essence, with we will get back to you. The court correctly decided that there was no contract as the parties were still negotiating the deal, and dismissed the case. A good decision by the judge!

The lesson to be learned here, is that if someone takes an aggressive stance in an ’email exchange’ that …

Who Else is Streamlining Their Agreements (software attorney’s take)?

It appears that other legal minds out there (other than a software attorney) are thinking of ways to streamline agreements, as the in-house team at Scottish & Newcastle (a beverage company based in Scotland (I had to look that up)) has documented their view on the subject. They have come up with an approach called “Pathclearer” which is actually a really well thought through approach.   In this 8 page article they explain the methodology and even provide a link to a template. Essentially this in-house group of Scottish lawyers have really tried to ferret out inefficiencies in their legal processes to help the business succeed, and I applaud them for it. I really think that software companies should look at ways to streamline their revenue generating agreements (end user, services, support, etc.) with approaches like this.…

How does the App Store Handle App Licensing (you know, Software EULAs)?

In essence we are going to look at something I call ‘platform licensing,’ for lack of a better term in terms of the App store licensing (you know, software EULA and software licensing agreement issues). iPhone users for example, may notice (or in reality not notice) that they can purchase (nearly all the time) a software app in the app store without agreeing to any sort of end user license agreement as part of that purchase (they have to provide the iTunes password though). Quite frankly, this is one the great features of the app store, as it really makes the app purchase process easier and much, much smoother.

This model looks like a sublicensing model (where Apple sublicenses the app to the user), but in the iTunes agreement, Apple takes the stance (obviously for protection from claims, including patent infringement claims) that they really are an ‘agent’  (you know, someone acting for someone else) and the app license agreement is directly between the app creator and the user. I have not seen this ‘agent’ model used before in this context, but I am not saying it cannot be done or is not right.  In essence, Apple is saying that the user purchases the software from Apple (i.e. pays Apple for the software), but is actually licensing that software directly from the app creator, as Apple is only ‘an agent.’ Of course when an iTunes user agrees to …