January 2011

Monthly Archives

  • Here is a Software Attorney’s Take.


    Gartner Wrote It (About the Cloud), But Here is a Software Attorney’s Take.

    Gartner wrote this interesting piece recently called the “Rights and Responsibilities for Consumers of Cloud Computing Services” and published it in the Cloudbook. It is worth a read, and I also have added some of my insights on how and where to address the issues (what should be in the cloud agreement/cloud contract and what is more of a policy statement/communication issue).

    1) Retain Ownership of Data. This is covered ground, and nothing new to most people. I think all cloud agreements should address this issue as clearly as possible, so everyone knows who owns what, and how and when data can be returned to the customer.  Oh yea, there is already litigation on this issue, so this is an important issue! Recent Case (see page 4)(Address in Cloud Agreement)

    2) Service Level Agreement. This one too is nothing new, as service level agreements have been around forever. I think the SLA should be in the cloud agreement, and not left to a policy statement. (Address in Cloud Agreement)

    3) Notification of Changes to the Service. This is a great idea, and cloud vendors really should communicate about (but let’s add material or significant) change to their service (i.e. ones that would impact their customer or that they would want/should know about). I think the key here is for the vendor to be as transparent as possible, so there aren’t any missed expectations

  • What You Should Not Do To Your Competitor


    What You Should Not Do To Your Competitor (after SAP tried it and got caught).

    I have been reading the pleadings in the Oracle vs. SAP case (you know the 2010 $1.3 Billion judgment case), and trying to come up with a few takeaways for every growing SAAS or software company (i.e. what you can learn from this case and how to use a software EULA). I think I have come up with the list, but before we get started here is the background (the ‘really’ short version).

    Background: TomorrowNow was a third-party support company which SAP bought in 2005. TN claimed to provide support for certain Oracle products (for less than 50% of what Oracle charged), and SAP tried to use their business model to lure customers away from the Oracle products and to the SAP products (it was called theSafe Passage program . . . which (funny enough) wasn’t safe/legal after all).

    3 Takeaways: Here are the 3 things you should not do to your competitor, now that this case has been decided (all based on the last Oracle filed petition in the case).

    1) Don’t Download More of Their Software Than You Have License Rights To. Oracle alleged with great specificity and detail how SAP downloaded more software through its TN subsidiary than it had license rights to.  This may seem very basic, but you don’t want to be in possession of more of your competitor’s software than you are validly licensed …