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Jeremy AberFounder at AberLawFirm |
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| Article: FTC's Negative Option Rule. What you Need to Know About Your Renewals! |
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May 19 2011
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The Federal Trade Commission (aka FTC) has a rule called the Negative Option Rule, which I really think every company seeking a venture capital investment or growth equity should think about.
The definition. |
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| Article: Should RFP Responses Be Included in SaaS Agreements? |
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May 08 2011
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Background: Where is this whole idea even coming from? Many customers are counseled or taught (BTW, there are lots of companies teaching your customers how to negotiate and buy from you) to send out long RFPs that ask for the world (lots of detailed questions about your solution . . . more information than they probably need), and then when it comes to the contract stage they too often demand that your whole RFP response become part of the final contract. Well, I think this is a really bad idea, and here are 3 reasons why. Just a few thoughts for any company looking for growth capital or a venture capital investment. |
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| Article: Can an IM Conversation Change a Written Contract? |
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May 02 2011
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The answer is, yes.
A very recent case ruled that the parties’ conversation on only IM changed the contract, even though there was nothing actually signed to reflect the change (as one of the venture capital advisors to the OpenView portfolio, I am always looking for cases like this for companies seeking growth capital or a venture capital investment). Does this sound like a crazy result? Actually not, so let’s run through the actual IM conversation, the legal logic, and what you can learn from this case.
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| Article: 3 ‘PRIVACY’ Takeaways from the Google Buzz FTC Settlement in March 2011 |
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April 10 2011
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As you may have heard, Google settled with the Federal Trade Commission regarding its rollout of Google Buzz and its alleged privacy violations during that rollout. There are a few tips here for every company seeking a venture capital investment or growth capital, so I have tried to outline/simplify them for you. |
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| Article: Where to Go For Software Negotiation Training |
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April 05 2011
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There are many different places to go for negotiations training (in general), but where is a great place for learning about the art of software negotiations with customers, partners, etc. (especially for any company seeking growth capital or a venture capital investment)? I highly recommend the Program on Negotiations at Harvard. I have attended some of their seminars, read some of their books, and have found that there is no better methodology for software customer and partner negotiations (from the perspective of the software vendor for say their software or SAAS contract negotiations). You ask why the PON is great, well let me elaborate. |
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| Article: What You Must Learn from a Survey of 358 Trade Secret Cases |
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March 29 2011
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A recent survey of over 358 reported trade secret cases (from 1995-2009) has some great nuggets for every software or SAAS company looking for growth capital or a venture capital investment. Without going into the legal nitty gritty (which I know you want me to skip), here are 3 takeways (after I define ‘trade secret’).
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| Article: 2 Practical Reasons Why You Need an API License Agreement! |
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March 15 2011
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I have been delaying writing a blog post about API licensing, as I could not find a good real world example to go along with the post. Well, Twitter just gave me that real world example. They recently changed their API license agreement, which caused quite an uproar in the Twitter community. Take a read below, as every company seeking a venture capital investment or growth equity should be aware of these 2 great reasons why companies with an API need an API license agreement (instead of going naked with no agreement). |
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| Article: Linking and the GPL: Technical and Legal Update 2011 |
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March 11 2011
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I finally found a really useful working paper and law review article written by some European open source attorneys and the Free Software Foundation Europe on linking issues and the GPL license. I think that every software based business seeking a venture capital investment or growth capital should be aware of this, as it is really hard to get some good practical guidance on open source legal issues. As a bonus, this perspective tries to marry the legal analysis with the technical analysis. Take a read!
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| Article: Should I Make Long-Term or Short-Term Commitments to My SAAS Customers? |
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March 03 2011
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Have you thought about which parts of your SAAS customer contractual commitments should be a short-term, and which part should be a long-term? Well, if you are looking for growth equity or a venture capital investment and you have not thought about it, then how about we do that now? |
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| Article: Who OWNS your Sales Leads – You or Your Sales Rep? |
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February 23 2011
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Hey, this used to be an easy answer (you owned them and you had possession of them), but in these days of LinkedIn, Twitter, Facebook, etc., it is not so simple. Here are some thoughts on this software sales compensation issue for any company looking for growth equity or a venture capital investment. |
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| Article: Enterprise Software Agreement: How to Design Yours! |
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February 03 2011
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This is an issue near and dear to me, as I have spent a large part of my career drafting and negotiating enterprise software agreements. However, I found that many companies seeking growth capital or a venture capital investment are trying to figure out how to design their enterprise software agreements… so some thoughts on this (from a software attorney) would/should be helpful. |
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| Article: Have SaaS Contracts Become Commodities |
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May 04 2010
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Have SaaS Contracts Become Commodities? From a software licensing attorney perspective the answer is in some ways yes, and other ways no. Here is a more thorough explanation. |
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| Article: What is the Purpose of an End User Contract? |
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March 19 2010
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IT contracts 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 the buyer does not own the product and is often unsure of exactly the type of service they will receive. Here is an article on figuring out the purpose of an end user contract. |
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| Article: What SAAS Customers Expect in their SAAS Contracts |
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January 07 2010
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The Altimeter Group published a report called the Customer Bill of Rights: Software-as-a-Service that outlines "39 Best Practices to Improve Client - Vendor Relationships". Here is an overview with some suggestions for SaaS vendors. |
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| Software Licensing Made Simple Jeremy Aber represents Software, SAAS, and IT Services companies on contracting, copyright and privacy issues. |
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| March 12 2012 |
| Ok that may be a little bit of an overstatement, but I do think that this new concept of 'Privacy By Design' is the future of privacy in terms of SaaS privacy and software privacy. Here are 3 simple things you should know about Privacy By Design: 1) 'Being Adopted' in the US (Invented in [...] ... read more >> |
| February 04 2012 |
| The taxation of international SaaS transactions is complicated and not all worked out, but I thought I would summarize a few key points from a recent Grant Thornton article on the subject. Here are a few key things to think about: Permanent Establishment – this is accounting speak for do [...] ... read more >> |
| December 05 2011 |
| Ok this CarrierIQ situation is really crazy, but there are some things (from a SaaS Attorney's perspective) that every software or SaaS company should think about. 1) Who is really at fault here: CarrierIQ or the carriers? While this is a complex question (and as of today all of the facts are not known) what we do [...] ... read more >> |
| November 21 2011 |
| This is a pretty fundamental concept in any software negotiation, so this is something you have to master. One of the big guns (William Ury) from the Program on Negotiations at Harvard (which is in my opinion the best negotiation program out there), wrote a book on how to say 'No.' If you did not realize it, 'No' [...] ... read more >> |
| October 31 2011 |
| Ok, if you have not heard of Kevin Mitnick and you are in the software industry, then he is someone you need to know about. He is probably the most notorious hacker in US history, and he released his new book Ghost in the Wires (A 5 Star Rated Book on Amazon.com) a few months [...] ... read more >> |
| October 02 2011 |
| Ok, let me see if I can explain this issue a little better. Can you use third party software (for example, Microsoft's SQL Server) in your partner's demo lab for testing your software? Can you go onsite to a prospect and use/leave SQL Server in a demonstration environment for 3 weeks, so they can test [...] ... read more >> |
| September 01 2011 |
| Not sure if you missed it, but a site was launched called ApplicationPrivacy.org. What is the big deal? Well, this project/site is devoted to educating app developers on application privacy issues (a worthy goal). So as a SaaS Attorney, I thought I would share my thoughts on this site/project, as there are some great takeaways [...] ... read more >> |
| August 06 2011 |
| It is not often that there is a reported case specifically addressing exclusive software licensing, so I thought I would share 3 takeaways from this 2011 case (HyperQuest vs N'Site Solutions). I will definitely not bore you with the long and detailled facts in this case, so let's get to it. Key Takeways: 1) If [...] ... read more >> |
| July 04 2011 |
| You may have already heard of this open source license, but if not, here are a few things every SaaS company needs to know about the Afferro GPL or AGPL (at least from the perspective of an open source attorney). 1) If you use AGPL'd code or modified code in your SaaS offering, [...] ... read more >> |
| June 12 2011 |
| As you know, software license agreements contain restrictions (i.e. things you cannot do with the software). Some of them are pretty common (e.g. don't reverse engineer or decompile the software or don't let a third-party use the software) but others are pretty unique. Two very recent big name court cases demonstrate that even the unique [...] ... read more >> |
| May 17 2011 |
| The Federal Trade Commission (aka FTC) has a rule called the Negative Option Rule, which I really think every SaaS and software company should know about. The definition. Negative Option means – when someone 'fails to act' (= silence) means they accepted a contract. Q: Why Does the FTC Care? A: Well, some [...] ... read more >> |
| May 07 2011 |
| The simple answer is no, don't do it. Ok, let me explain. Background: Where is this whole idea even coming from in the SaaS law or software law regime? Many customers are counseled or taught (BTW, there are lots of companies teaching your customers how to negotiate and buy from you) to send out [...] ... read more >> |
| May 01 2011 |
| The answer is, yes. A very recent case ruled that the parties conversation on only IM changed the contract, even though there was nothing actually signed to reflect the change (as a software licensing lawyer, I am always looking for cases like this for you). Does this sound like a crazy result? Actually not, so [...] ... read more >> |
| April 13 2011 |
| I had a call the other day with Tim Johnson of Sand Hill Finance, and thought you should know about these folks. Their offering is quite unique in the SAAS and software world. Here is an excerpt from our conversation: Me: "What do you guys do, because I am not sure I get it?" [...] ... read more >> |
| April 10 2011 |
| As you may have heard, Google settled with the Federal Trade Commission regarding its rollout of Google Buzz and its alleged privacy violations during that rollout. There are a few SAAS privacy or software privacy tips here, so I have tried to outline/simplify them for you. 1) It is All About DEFAULT Privacy Settings. Think [...] ... read more >> |
| April 04 2011 |
| There are many different places to go for negotiations training (in general), but where is a great place for learning about the art of software negotiations with customers, partners, etc. I highly recommend the Program on Negotiations at Harvard. I have attended some of their seminars, read some of their books, and have found that [...] ... read more >> |
| March 28 2011 |
| A recent survey of over 358 reported trade secret cases (from 1995-2009) has some great nuggets for every software or SAAS company looking to protect its SAAS trade secrets and software trade secrets (something you should be doing, by the way). Without going into the legal nitty gritty (which I know you want me to [...] ... read more >> |
| March 15 2011 |
| I have been delaying writing a blog post about API licensing, as I could not find a good real world example to go along with the post. Well, Twitter just gave me that real world example, as they recently changed their API license agreement, which caused quite an uproar in the Twitter community. Take a [...] ... read more >> |
| March 10 2011 |
| I finally found a really useful working paper and law review article written by some European open source attorneys and the Free Software Foundation Europe on linking issues and the GPL license. I thought I would share some of the highlights with you as it is really hard to get some good practical guidance on [...] ... read more >> |
| March 03 2011 |
| Have you thought about which parts of your SAAS customer contract commitments should be a short-term, and which parts should be long-term? Well, if you have not thought about it, then how about we do that now. What Should/Could Be Short Term? The key with SAAS models is that most* are not perpetual (aka forever) [...] ... read more >> |
| February 22 2011 |
| Hey this used to be an easy answer (you owned them and you had possession of them), but these days of LinkedIn, Twitter, Facebook, etc., it is not so simple. Here are some thoughts on this software sales compensation issue. 1) Where are Your Sales Leads Stored (aka who has possession of them)? Old days [...] ... read more >> |
| February 03 2011 |
| This is an issue near and dear to me, as I have spent a large part of my career drafting and negotiating enterprise software agreements. However, what I have found is that many growing software companies are trying to figure out how to design their enterprise software agreement, so some thoughts on it (from a [...] ... read more >> |
| January 22 2011 |
| 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 [...] ... read more >> |
| January 13 2011 |
| Ok, ok this is a legal blog, so I am actually talking about naked trademark licensing issues here — a few nuggets for every software or SAAS executive to think about for their software or SAAS partner agreement, SAAS OEM agreement, etc. "Naked Licensing" is in essence a legal defense to a trademark infringement claim, [...] ... read more >> |
| January 04 2011 |
| 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 [...] ... read more >> |
| December 27 2010 |
| I have been tracking this case (Starwood vs. Hilton Hotels), as it has some really practical things to remember for every software or SAAS company regarding protecting their confidential and trade secret information (especially when some of your employees go to a competitor). As it was settled in December 2010, I can now (from the [...] ... read more >> |
| December 22 2010 |
| If you operate a software based business you are likely using some open source code in your software. There really is nothing wrong with that, as it is really common now (and probably a best practice). But what is your process to review and track this code, and the associated license terms? Well, here are [...] ... read more >> |
| December 15 2010 |
| I read a really interesting negotiations book, and thought about a few takeaways for every software or SAAS company in their customer negotiations (maybe even as a software negotiations best practice). Background: The book by Gary Noesner came out in September 2010 and is called Stalling for Time: My Life as an FBI Hostage Negotiator. [...] ... read more >> |
| December 06 2010 |
| Here are 3 things every software company can learn from SAP being sued under a software OEM agreement. Without going into the nitty gritty of the details of the case, here is a summary of the facts: SAP distributed and sublicensed certain AMC Technology software embedded with a SAP product. When the software OEM agreement expired, [...] ... read more >> |
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