November 23, 2009 at 9:32am
Holly Towle wrote an excellent article on the boilerplate contract language issues that might now exist in your contract language. Read the article… consider the issues… review your templates. Make some changes. Of course, you can always just call me and I'd be happy to review your contracts for you. 
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November 16, 2009 at 9:32am
I saw an intriguing post the other day by Jennifer Schiffer on WordPress, themes and the GPL. She linked to a video of Matt Mullenweg (one of WordPress' lead developers) who was talking about why WordPress was a GPL product (short answer: they didn't really have a choice because WP is based on b2, which was GPL) and, more specifically, was talking about why themes and plugins are also then GPL.
The truth of the matter is that the GPLv3 is a very restrictive license, in as much as it's also a harbinger of freedom. The GPL was written in a way to specifically retain the freedoms it grants through successive iterations of a particular product, or its add-ons. This means that if you like a GPL product, develop a derivative work, a modification, a plug-in or any other type of add-on, the resulting work is also going to be covered by the GPL (you do not have a choice in this).
"You may not impose any further restrictions on the exercise of the rights granted or affirmed under this License." – Section 10 of the GPL
This means that unless the WordPress GPL (yes, they're specific by product… you can ADD restrictions if you want… so no 2 GPL'd products are necessarily identically licensed – we'll talk about this in a minute) allowed for a theme developer to restrict the distribution of a theme, a theme developer isn't allowed to add that restriction on their own. Your development on a GPL product inherits the license of the original product.
Inheritance is a powerful concept because it creates license congruity, ad infinitum, for all downstream works of the original code. It would be extremely difficult to manage license compliance if WordPress had one license, but a plug-in had a different one.
But there's apparently a wonderful new theme available for WordPress called Thesis. Its developer sells two several different versions of the theme (selling under the GPL is fine). The problem comes to light when you look at the options:
And these options are problematic because they violate the GPL v2 under which WordPress is licensed. Specifically, Section 2, which states, in part:
"You must cause any work that you distribute or publish, that in whole or in part contains or is derived from the Program or any part thereof, to be licensed as a whole at no charge to all third parties under the terms of this License."
and Section 6:
"Each time you redistribute the Program (or any work based on the Program), the recipient automatically receives a license from the original licensor to copy, distribute…
November 09, 2009 at 9:32am
I posted the question on Twitter the other day: "How does the SPA have the authority to audit software license use? In thousands of licenses I've never given them that right."
I was looking for some insight that I might have missed. In the world of contracts, your license actually will specifically state who has the ability to audit your license usage (if they have the right at all). And in the world of law, the term "standing" is used to show who actually is allowed to raise a particular issue (via the courts, etc). So the SPA/BSA/SIIA (SIIA is their current incarnation) (or any other third-party "enforcer") wouldn't have the legal right to ever come in and audit your software license use unless there's language in the license that allows for such audit.
Even general audit language is probably safe to prevent the SIIA from knocking on your door one day. Typical audit provisions include:
The result is that even with not-so-favorable audit language, I simply don't see how the SIIA has any right to come and perform an audit, let alone try to sue a licensee for license violations (again, any license that has "no third-party beneficiary" language in it could be used to very clearly show that the SIIA doesn't have any rights with respects to the license).
Additionally, it's been suggested that there are two other routes to allow such an audit: the "source" (the licensee's employee who reports a violation) and the potential for an assignment of audit rights. As for the source person, unless they're also the person in the company who can allow someone to come in, that individual probably doesn't have internal authorization to allow the audit to happen – so I find this unlikely. The assignment of audit rights potential does exist, and contracts that have poor assignment language could potentially allow the vendor to assign their rights to someone else (and, in fact, it appears that the SIIA attempts to use an assignment of rights in this manner). So it's conceivable, but I've never seen the language used in that way.
At the end of the day, the lesson is this:
November 08, 2009 at 4:03pm
Microsoft is aggressively discounting its hosted / SaaS solutions in order to gain market share, and I suspect, to sway customers from the EA / Select / perpetual license model, onto the rental / cloud / SaaS model.
Microsoft cuts prices on BPOS, to issue refunds -
http://ct.zdnet.com/clicks?t=475224883-f5935ee3a0b078029592318f09b1ea8e-bf&brand=ZDNET&s=5
Microsoft seeks to lure Salesforce, Oracle users with six months free of CRM Online
Microsoft chops prices of its hosted enterprise cloud offerings
But you'll note that's only on the hosted offerings.
Also of note, Microsoft's huge new billion $ datacenters in Chicago and Dublin are now open for business. With more coming soon.
http://ct.zdnet.com/clicks?t=475224883-f5935ee3a0b078029592318f09b1ea8e-bf&brand=ZDNET&s=5
On the traditional licensing front, Microsoft just announced price increases for SQL Server.
So, clearly, MSFT is betting big chunks of cash on swaying customers to its hosted services, and as a consequence the traditional licensing models are becoming slightly less attractive. I would advise Microsoft customers to consider the true costs and benefits of moving from a traditional licensing approach, to a model such as BPOS. As in most things regarding Microsoft's sales practices, there are hidden factors that may not come to light unless you ask the right questions.
-Scott Braden
November 06, 2009 at 9:32am
I know, I know… welcome to the 20th Century, Jeff. I was waiting for my publishing "house", Lulu, to allow for an eBook edition, and we've finally got it.
So, if you have been waiting for the eBook version of the Software Licensing Handbook (I'm matching Amazon's price for the paper version, so get it cheaply now), you can get it here.
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