SlideShare une entreprise Scribd logo
1  sur  35
Télécharger pour lire hors ligne
Software Law for Developers
Brad Frazer
bfrazer@hawleytroxell.com
208.388.4875
@bfrazjd
Boise Code Camp
March 19, 2016
Introduction . . .
The business of writing, owning, licensing and
monetizing code has become more
complicated due to the evolution of SaaS and
the move to mobile, meaning a proliferation
of apps and APIs. Proper awareness of how to
own your code (or not), how to license it,
how to allow others to subscribe to it, how to
protect it and how monetize it is critical for
every developer.
Outline
1. Own it
2. Protect it
3. Monetize it
Own it
• Presentation assumes you are able to own
the code
• Exceptions . . .
– When you don’t.
Own it
• Where did the source code come from?
Own it
• In what role did you write the code?
– Solo
– Contractor
– Employee
Own it
• Anybody else write part of it?
Own it
• Where do you want ownership to reside?
– You
– LLC
– Corporation
Own it
• Ownership legal exposures
– Warranty of title
– Indemnification concerns
– Exit strategies
Protect it
• Copyright law
– Creation
– Ownership
– Registration
– Enforcement
Protect it
• Copyright law
– Creation
• Copyright is a noun
• Sufficiently creative idea embodied in a
tangible medium
Protect it
• Copyright law
– Ownership
• Author owns the copyright
• Except for works made for hire
• Except independent contractor with a
signed writing
Protect it
• Copyright law
– Registration
• Creates a remedy—does not affect creation
or ownership
• Required to maintain infringement lawsuit
in federal court
• Register timely—ASAP after creation of
“best edition” of the work
Protect it
• Copyright law
– Vigilance
• Watch for infringers
• Address them promptly (three year statute
of limitations)
• Do not bluff
Copyright Hypothetical
Assume that Company X hires an independent contractor to write
computer code. Company X pays the programmer, Jim, $5,000, and Jim
delivers a flash drive with the commissioned program on it. Company X
thereafter begins to license the software to third parties. A short time
later, Jim’s former employer sues Company X for copyright infringement
asserting that it owns the copyright, not Company X since Jim created it
while he was their employee and Company X did not obtain a written
copyright assignment from either Jim or Jim’s former employer. (Note
that Jim’s former employer may also, on these facts, sue each of
Company X’s putative licensees.) Company X settles that lawsuit and
buys the copyright to the code from Jim’s former employer. Company X
again begins licensing the code to third parties. One of those licensees
begins selling copies of the software without permission, and Company
X sues them for copyright infringement. The case is dismissed without
prejudice, however, because Company X did not register its copyright in
the software before filing the complaint.
Monetize it
• What’s the deployment modality?
• Can you charge for it?
• Consider “open source” code
Monetize it
• Deployment modality: license
– Contract
– Worthless if you cannot prove assent to the
contract
– Mechanisms?
– Issues: warranties, indemnity, install base
Monetize it
• Deployment modality: SaaS
– Service, not software
– Different contract
– Issues: security, privacy, data, “you can only
give what you have received”
Monetize it
• Deployment modality: hybrid
– Contemplates service (subscription) and an
app (license)
– Let’s talk about apps . . .
Legal Issues for Developers
Legal Issues for Developers
Monetize it
• Post-deployment issues:
– Support
– Maintenance
– License versus SaaS implications
Monetize it
• Exit, VC, sell company, sell code as stand-
alone
– All these are impaired if fundamentals are
not observed
When to Use a License and When
to Use SaaS
• If a SOFTWARE OWNER does not want to
be responsible for support and
maintenance obligations of the install base,
then a subscription model may be more
appropriate.
When to Use a License and When
to Use SaaS
• If a SOFTWARE END USER needs the ability
to customize the code and how it works in
the end user’s enterprise environment, a
license model may be more appropriate.
When to Use a License and When
to Use SaaS
• If a SOFTWARE OWNER is concerned about
trade secrets in its code being
misappropriated through reverse
engineering, then a subscription model
may be more appropriate.
When to Use a License and When
to Use SaaS
• If a SOFTWARE END USER has a large
enterprise that requires a great deal of
software support, a license model with
support and maintenance agreements may
be more appropriate.
When to Use a License and When
to Use SaaS
• If a SOFTWARE END USER has a large
enterprise that requires development of
custom code and implementation services,
a license model with both professional
services components and support and
maintenance agreements may be more
appropriate.
When to Use a License and When
to Use SaaS
• If the application object code is still in beta
and/or is subject to very frequent revision,
then a subscription model may be more
appropriate for that SOFTWARE OWNER.
• A note here on beta or source code
licenses.
When to Use a License and When
to Use SaaS
• If either the SOFTWARE OWNER or the
SOFTWARE END USER is concerned about
cloud privacy and data security or if the
relevant regulatory environment
disqualifies a cloud deployment model for
those reasons, then a license model with
support and maintenance agreements may
be more appropriate.
When to Use a License and When
to Use SaaS
• If the SOFTWARE END USER is in a location
or facility that renders Internet access
spotty or unreliable, a license model may
be more appropriate.
When to Use a License and When to Use
SaaS
• If the SOFTWARE OWNER cannot affirmatively
state (warrant) that it owns the copyright in
and to or has rights to sublicense the
implicated code, a subscription model may be
more appropriate. This is the “warranty of
title” problem.
• Otherwise your client may get sued for
copyright infringement—remember
hypothetical?
When to Use a License and When
to Use SaaS
• If the SOFTWARE OWNER has both server-
based deployment AND an app or an API, a
hybrid model may be more appropriate.
• Consider the move to mobile . . .
When to Use a License and When
to Use SaaS
• Does your app already have an “upstream”
license in place, like the iTunes App Store
license?
• Do you need more/different?
www.hawleytroxell.com
THANK YOU!
Brad Frazer
bfrazer@hawleytroxell.com
208.388.4875
@bfrazjd

Contenu connexe

En vedette

Faces Of Marketing Deception And Child Neglect For
Faces Of Marketing Deception And Child Neglect ForFaces Of Marketing Deception And Child Neglect For
Faces Of Marketing Deception And Child Neglect Forguest3fd92b
 
SIAA Semi-Annual Business Meeting and 20th Anniversary Gala
SIAA Semi-Annual Business Meeting and 20th Anniversary GalaSIAA Semi-Annual Business Meeting and 20th Anniversary Gala
SIAA Semi-Annual Business Meeting and 20th Anniversary GalaSIAA
 
Prime Minister Thanks Employers Supporting The Armed Forces
Prime Minister Thanks Employers Supporting The Armed ForcesPrime Minister Thanks Employers Supporting The Armed Forces
Prime Minister Thanks Employers Supporting The Armed ForcesJames Atkins
 
Well linked 2012
Well linked 2012Well linked 2012
Well linked 2012kltan123
 
Richard Ziskind - Life in Aviation
Richard Ziskind - Life in AviationRichard Ziskind - Life in Aviation
Richard Ziskind - Life in AviationCrystal Cruises
 
Career Week 2011
Career Week 2011Career Week 2011
Career Week 2011codem2
 
Employment & Labour Law: What Have the Courts Done Now?
Employment & Labour Law: What Have the Courts Done Now? Employment & Labour Law: What Have the Courts Done Now?
Employment & Labour Law: What Have the Courts Done Now? This account is closed
 
Choice USA Clikzy Examples
Choice USA Clikzy ExamplesChoice USA Clikzy Examples
Choice USA Clikzy ExamplesClikzy Creative
 
Discover Trinidad & Tobago 2012
Discover Trinidad & Tobago 2012Discover Trinidad & Tobago 2012
Discover Trinidad & Tobago 2012ixoratnt
 

En vedette (15)

Kevin-CV
Kevin-CVKevin-CV
Kevin-CV
 
Faces Of Marketing Deception And Child Neglect For
Faces Of Marketing Deception And Child Neglect ForFaces Of Marketing Deception And Child Neglect For
Faces Of Marketing Deception And Child Neglect For
 
SIAA Semi-Annual Business Meeting and 20th Anniversary Gala
SIAA Semi-Annual Business Meeting and 20th Anniversary GalaSIAA Semi-Annual Business Meeting and 20th Anniversary Gala
SIAA Semi-Annual Business Meeting and 20th Anniversary Gala
 
Thfk tent revival_talk_2015
Thfk tent revival_talk_2015Thfk tent revival_talk_2015
Thfk tent revival_talk_2015
 
Resume with cover letter
Resume with cover letterResume with cover letter
Resume with cover letter
 
Prime Minister Thanks Employers Supporting The Armed Forces
Prime Minister Thanks Employers Supporting The Armed ForcesPrime Minister Thanks Employers Supporting The Armed Forces
Prime Minister Thanks Employers Supporting The Armed Forces
 
Well linked 2012
Well linked 2012Well linked 2012
Well linked 2012
 
Richard Ziskind - Life in Aviation
Richard Ziskind - Life in AviationRichard Ziskind - Life in Aviation
Richard Ziskind - Life in Aviation
 
Career Week 2011
Career Week 2011Career Week 2011
Career Week 2011
 
Tax Planning
Tax PlanningTax Planning
Tax Planning
 
Employment & Labour Law: What Have the Courts Done Now?
Employment & Labour Law: What Have the Courts Done Now? Employment & Labour Law: What Have the Courts Done Now?
Employment & Labour Law: What Have the Courts Done Now?
 
Choice USA Clikzy Examples
Choice USA Clikzy ExamplesChoice USA Clikzy Examples
Choice USA Clikzy Examples
 
Memoriasciima2013
Memoriasciima2013Memoriasciima2013
Memoriasciima2013
 
Discover Trinidad & Tobago 2012
Discover Trinidad & Tobago 2012Discover Trinidad & Tobago 2012
Discover Trinidad & Tobago 2012
 
Islamic Financial Planning
Islamic Financial PlanningIslamic Financial Planning
Islamic Financial Planning
 

Similaire à Legal Issues for Developers

Pitfalls of Software Licenses (2)
Pitfalls of Software Licenses (2)Pitfalls of Software Licenses (2)
Pitfalls of Software Licenses (2)ravimohan2
 
Software License Audit Preparation
Software License Audit PreparationSoftware License Audit Preparation
Software License Audit PreparationNPI_Spend_Mgmt
 
Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...
Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...
Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...Black Duck by Synopsys
 
Journey to Establish an Open Source Policy in a Fortune 20 Health Care Company
Journey to Establish an Open Source Policy in a Fortune 20 Health Care CompanyJourney to Establish an Open Source Policy in a Fortune 20 Health Care Company
Journey to Establish an Open Source Policy in a Fortune 20 Health Care CompanyAll Things Open
 
I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?
I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?
I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?Jennifer O'Neill
 
Microsoft audit defence gotchas check list
Microsoft audit defence gotchas check listMicrosoft audit defence gotchas check list
Microsoft audit defence gotchas check listMartin Thompson
 
SoftwareONE SPLA Guide
SoftwareONE SPLA GuideSoftwareONE SPLA Guide
SoftwareONE SPLA Guidepaullimbers
 
Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...
Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...
Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...Black Duck by Synopsys
 
IBM Software Licensing: Tips to Safeguard Your Bottom Line
 IBM Software Licensing: Tips to Safeguard Your Bottom Line IBM Software Licensing: Tips to Safeguard Your Bottom Line
IBM Software Licensing: Tips to Safeguard Your Bottom LineSenturus
 
To SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services Provider
To SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services ProviderTo SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services Provider
To SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services ProviderScott & Scott, LLP
 
Webinar–You've Got Your Open Source Audit Report–Now What?
Webinar–You've Got Your Open Source Audit Report–Now What? Webinar–You've Got Your Open Source Audit Report–Now What?
Webinar–You've Got Your Open Source Audit Report–Now What? Synopsys Software Integrity Group
 
Eula en
Eula enEula en
Eula encajeju
 
Protecting Your Business Globally - David Snead, i2Coalition
Protecting Your Business Globally - David Snead, i2CoalitionProtecting Your Business Globally - David Snead, i2Coalition
Protecting Your Business Globally - David Snead, i2CoalitionResellerClub
 
FLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your Deal
FLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your DealFLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your Deal
FLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your DealBlack Duck by Synopsys
 
Introduction to Software Licensing
Introduction to Software LicensingIntroduction to Software Licensing
Introduction to Software Licensingtravellingpolander
 
Identity and access control for custom enterprise applications - SDD412 - AWS...
Identity and access control for custom enterprise applications - SDD412 - AWS...Identity and access control for custom enterprise applications - SDD412 - AWS...
Identity and access control for custom enterprise applications - SDD412 - AWS...Amazon Web Services
 
State of the Cloud Computing Marketplace
State of the Cloud Computing MarketplaceState of the Cloud Computing Marketplace
State of the Cloud Computing MarketplaceFlexera
 
Why Choose the Nalpeiron Licensing Service vs. Building Your Own
Why Choose the Nalpeiron Licensing Service vs. Building Your OwnWhy Choose the Nalpeiron Licensing Service vs. Building Your Own
Why Choose the Nalpeiron Licensing Service vs. Building Your OwnJon Gillespie-Brown
 
Related OSS Projects - Peter Rowe, Flexera Software
Related OSS Projects - Peter Rowe, Flexera SoftwareRelated OSS Projects - Peter Rowe, Flexera Software
Related OSS Projects - Peter Rowe, Flexera SoftwareOpenStack
 

Similaire à Legal Issues for Developers (20)

Pitfalls of Software Licenses (2)
Pitfalls of Software Licenses (2)Pitfalls of Software Licenses (2)
Pitfalls of Software Licenses (2)
 
Software License Audit Preparation
Software License Audit PreparationSoftware License Audit Preparation
Software License Audit Preparation
 
Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...
Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...
Winning the Cage-Match: How to Successfully Navigate Open Source Software iss...
 
Journey to Establish an Open Source Policy in a Fortune 20 Health Care Company
Journey to Establish an Open Source Policy in a Fortune 20 Health Care CompanyJourney to Establish an Open Source Policy in a Fortune 20 Health Care Company
Journey to Establish an Open Source Policy in a Fortune 20 Health Care Company
 
I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?
I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?
I\'m Not an IT Lawyer: Why Does Open Source Matter to Me?
 
Microsoft audit defence gotchas check list
Microsoft audit defence gotchas check listMicrosoft audit defence gotchas check list
Microsoft audit defence gotchas check list
 
SoftwareONE SPLA Guide
SoftwareONE SPLA GuideSoftwareONE SPLA Guide
SoftwareONE SPLA Guide
 
Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...
Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...
Flight WEST 2018 Presentation - A Buyer Investor Playbook for Successfully Na...
 
IBM Software Licensing: Tips to Safeguard Your Bottom Line
 IBM Software Licensing: Tips to Safeguard Your Bottom Line IBM Software Licensing: Tips to Safeguard Your Bottom Line
IBM Software Licensing: Tips to Safeguard Your Bottom Line
 
To SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services Provider
To SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services ProviderTo SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services Provider
To SPLA or Not to SPLA - Microsoft Licensing for the Hosting Services Provider
 
License
LicenseLicense
License
 
Webinar–You've Got Your Open Source Audit Report–Now What?
Webinar–You've Got Your Open Source Audit Report–Now What? Webinar–You've Got Your Open Source Audit Report–Now What?
Webinar–You've Got Your Open Source Audit Report–Now What?
 
Eula en
Eula enEula en
Eula en
 
Protecting Your Business Globally - David Snead, i2Coalition
Protecting Your Business Globally - David Snead, i2CoalitionProtecting Your Business Globally - David Snead, i2Coalition
Protecting Your Business Globally - David Snead, i2Coalition
 
FLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your Deal
FLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your DealFLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your Deal
FLIGHT Amsterdam Presentation - Don’t Let Open Source Software Kill Your Deal
 
Introduction to Software Licensing
Introduction to Software LicensingIntroduction to Software Licensing
Introduction to Software Licensing
 
Identity and access control for custom enterprise applications - SDD412 - AWS...
Identity and access control for custom enterprise applications - SDD412 - AWS...Identity and access control for custom enterprise applications - SDD412 - AWS...
Identity and access control for custom enterprise applications - SDD412 - AWS...
 
State of the Cloud Computing Marketplace
State of the Cloud Computing MarketplaceState of the Cloud Computing Marketplace
State of the Cloud Computing Marketplace
 
Why Choose the Nalpeiron Licensing Service vs. Building Your Own
Why Choose the Nalpeiron Licensing Service vs. Building Your OwnWhy Choose the Nalpeiron Licensing Service vs. Building Your Own
Why Choose the Nalpeiron Licensing Service vs. Building Your Own
 
Related OSS Projects - Peter Rowe, Flexera Software
Related OSS Projects - Peter Rowe, Flexera SoftwareRelated OSS Projects - Peter Rowe, Flexera Software
Related OSS Projects - Peter Rowe, Flexera Software
 

Dernier

The Ultimate Guide to Drafting Your Separation Agreement with a Template
The Ultimate Guide to Drafting Your Separation Agreement with a TemplateThe Ultimate Guide to Drafting Your Separation Agreement with a Template
The Ultimate Guide to Drafting Your Separation Agreement with a TemplateBTL Law P.C.
 
Patents and AI: Current Tools, Future Solutions
Patents and AI: Current Tools, Future SolutionsPatents and AI: Current Tools, Future Solutions
Patents and AI: Current Tools, Future SolutionsAurora Consulting
 
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...Dr. Oliver Massmann
 
xLran: Open source AI for legal hackers.
xLran: Open source AI for legal hackers.xLran: Open source AI for legal hackers.
xLran: Open source AI for legal hackers.mike689707
 
Islamabad High Court Judges wrote a letter to Supreme Judicial Council.pdf
Islamabad High Court Judges wrote a letter to Supreme Judicial Council.pdfIslamabad High Court Judges wrote a letter to Supreme Judicial Council.pdf
Islamabad High Court Judges wrote a letter to Supreme Judicial Council.pdfNo One
 
Classification of Contracts in Business Regulations
Classification of Contracts in Business RegulationsClassification of Contracts in Business Regulations
Classification of Contracts in Business RegulationsSyedaAyeshaTabassum1
 
An introduction to Indian Contract Act, 1872 by Shraddha Pandit
An introduction to Indian Contract Act, 1872 by Shraddha PanditAn introduction to Indian Contract Act, 1872 by Shraddha Pandit
An introduction to Indian Contract Act, 1872 by Shraddha PanditSHRADDHA PANDIT
 
ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...
ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...
ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...Anadi Tewari
 
Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...
Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...
Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...SHRADDHA PANDIT
 

Dernier (10)

The Ultimate Guide to Drafting Your Separation Agreement with a Template
The Ultimate Guide to Drafting Your Separation Agreement with a TemplateThe Ultimate Guide to Drafting Your Separation Agreement with a Template
The Ultimate Guide to Drafting Your Separation Agreement with a Template
 
Patents and AI: Current Tools, Future Solutions
Patents and AI: Current Tools, Future SolutionsPatents and AI: Current Tools, Future Solutions
Patents and AI: Current Tools, Future Solutions
 
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...
Corporate Sustainability Due Diligence Directive (CSDDD or the EU Supply Chai...
 
xLran: Open source AI for legal hackers.
xLran: Open source AI for legal hackers.xLran: Open source AI for legal hackers.
xLran: Open source AI for legal hackers.
 
Islamabad High Court Judges wrote a letter to Supreme Judicial Council.pdf
Islamabad High Court Judges wrote a letter to Supreme Judicial Council.pdfIslamabad High Court Judges wrote a letter to Supreme Judicial Council.pdf
Islamabad High Court Judges wrote a letter to Supreme Judicial Council.pdf
 
Classification of Contracts in Business Regulations
Classification of Contracts in Business RegulationsClassification of Contracts in Business Regulations
Classification of Contracts in Business Regulations
 
Criminalizing Disabilities & False Confessions
Criminalizing Disabilities & False ConfessionsCriminalizing Disabilities & False Confessions
Criminalizing Disabilities & False Confessions
 
An introduction to Indian Contract Act, 1872 by Shraddha Pandit
An introduction to Indian Contract Act, 1872 by Shraddha PanditAn introduction to Indian Contract Act, 1872 by Shraddha Pandit
An introduction to Indian Contract Act, 1872 by Shraddha Pandit
 
ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...
ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...
ArtificiaI Intelligence based Cyber Forensic Tools: Relevancy and Admissibili...
 
Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...
Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...
Women and the World of Climate Change- A Conceptual Foundation by Shraddha Pa...
 

Legal Issues for Developers

  • 1. Software Law for Developers Brad Frazer bfrazer@hawleytroxell.com 208.388.4875 @bfrazjd Boise Code Camp March 19, 2016
  • 2. Introduction . . . The business of writing, owning, licensing and monetizing code has become more complicated due to the evolution of SaaS and the move to mobile, meaning a proliferation of apps and APIs. Proper awareness of how to own your code (or not), how to license it, how to allow others to subscribe to it, how to protect it and how monetize it is critical for every developer.
  • 3. Outline 1. Own it 2. Protect it 3. Monetize it
  • 4. Own it • Presentation assumes you are able to own the code • Exceptions . . . – When you don’t.
  • 5. Own it • Where did the source code come from?
  • 6. Own it • In what role did you write the code? – Solo – Contractor – Employee
  • 7. Own it • Anybody else write part of it?
  • 8. Own it • Where do you want ownership to reside? – You – LLC – Corporation
  • 9. Own it • Ownership legal exposures – Warranty of title – Indemnification concerns – Exit strategies
  • 10. Protect it • Copyright law – Creation – Ownership – Registration – Enforcement
  • 11. Protect it • Copyright law – Creation • Copyright is a noun • Sufficiently creative idea embodied in a tangible medium
  • 12. Protect it • Copyright law – Ownership • Author owns the copyright • Except for works made for hire • Except independent contractor with a signed writing
  • 13. Protect it • Copyright law – Registration • Creates a remedy—does not affect creation or ownership • Required to maintain infringement lawsuit in federal court • Register timely—ASAP after creation of “best edition” of the work
  • 14. Protect it • Copyright law – Vigilance • Watch for infringers • Address them promptly (three year statute of limitations) • Do not bluff
  • 15. Copyright Hypothetical Assume that Company X hires an independent contractor to write computer code. Company X pays the programmer, Jim, $5,000, and Jim delivers a flash drive with the commissioned program on it. Company X thereafter begins to license the software to third parties. A short time later, Jim’s former employer sues Company X for copyright infringement asserting that it owns the copyright, not Company X since Jim created it while he was their employee and Company X did not obtain a written copyright assignment from either Jim or Jim’s former employer. (Note that Jim’s former employer may also, on these facts, sue each of Company X’s putative licensees.) Company X settles that lawsuit and buys the copyright to the code from Jim’s former employer. Company X again begins licensing the code to third parties. One of those licensees begins selling copies of the software without permission, and Company X sues them for copyright infringement. The case is dismissed without prejudice, however, because Company X did not register its copyright in the software before filing the complaint.
  • 16. Monetize it • What’s the deployment modality? • Can you charge for it? • Consider “open source” code
  • 17. Monetize it • Deployment modality: license – Contract – Worthless if you cannot prove assent to the contract – Mechanisms? – Issues: warranties, indemnity, install base
  • 18. Monetize it • Deployment modality: SaaS – Service, not software – Different contract – Issues: security, privacy, data, “you can only give what you have received”
  • 19. Monetize it • Deployment modality: hybrid – Contemplates service (subscription) and an app (license) – Let’s talk about apps . . .
  • 22. Monetize it • Post-deployment issues: – Support – Maintenance – License versus SaaS implications
  • 23. Monetize it • Exit, VC, sell company, sell code as stand- alone – All these are impaired if fundamentals are not observed
  • 24. When to Use a License and When to Use SaaS • If a SOFTWARE OWNER does not want to be responsible for support and maintenance obligations of the install base, then a subscription model may be more appropriate.
  • 25. When to Use a License and When to Use SaaS • If a SOFTWARE END USER needs the ability to customize the code and how it works in the end user’s enterprise environment, a license model may be more appropriate.
  • 26. When to Use a License and When to Use SaaS • If a SOFTWARE OWNER is concerned about trade secrets in its code being misappropriated through reverse engineering, then a subscription model may be more appropriate.
  • 27. When to Use a License and When to Use SaaS • If a SOFTWARE END USER has a large enterprise that requires a great deal of software support, a license model with support and maintenance agreements may be more appropriate.
  • 28. When to Use a License and When to Use SaaS • If a SOFTWARE END USER has a large enterprise that requires development of custom code and implementation services, a license model with both professional services components and support and maintenance agreements may be more appropriate.
  • 29. When to Use a License and When to Use SaaS • If the application object code is still in beta and/or is subject to very frequent revision, then a subscription model may be more appropriate for that SOFTWARE OWNER. • A note here on beta or source code licenses.
  • 30. When to Use a License and When to Use SaaS • If either the SOFTWARE OWNER or the SOFTWARE END USER is concerned about cloud privacy and data security or if the relevant regulatory environment disqualifies a cloud deployment model for those reasons, then a license model with support and maintenance agreements may be more appropriate.
  • 31. When to Use a License and When to Use SaaS • If the SOFTWARE END USER is in a location or facility that renders Internet access spotty or unreliable, a license model may be more appropriate.
  • 32. When to Use a License and When to Use SaaS • If the SOFTWARE OWNER cannot affirmatively state (warrant) that it owns the copyright in and to or has rights to sublicense the implicated code, a subscription model may be more appropriate. This is the “warranty of title” problem. • Otherwise your client may get sued for copyright infringement—remember hypothetical?
  • 33. When to Use a License and When to Use SaaS • If the SOFTWARE OWNER has both server- based deployment AND an app or an API, a hybrid model may be more appropriate. • Consider the move to mobile . . .
  • 34. When to Use a License and When to Use SaaS • Does your app already have an “upstream” license in place, like the iTunes App Store license? • Do you need more/different?