I've just written and added a new article to my web site, Welcome to California: A Very Short Introduction to Several California Laws that Affect Out-of-State and Foreign Businesses (MS Word file).
My resources page contains other articles that I've written.
Marketing guru Seth Godin, author of The Bootstrapper's Bible: How to Start and Build a Business With a Great Idea and (Almost) No Money and many others about marketing and blogging, published an ebook titled Everyone's an Expert (About Something): The Search for Meaning Online.
The title page of the ebook says that "Copyright holder is licensing this under the Creative Commons license, Attribution 2.5. http://creativecommons.org/licenses/by/2.5/". According to Creative Commons, that license "lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution."
Fine, right?
Yes, until an email from Amazon.com announced that an unknown publisher was offering his ebook for sale as a new book. Those two words in the license, "even commercially," meant that Godin had granted the rights to anyone to resell the book, as long as he received attribution as the author.
In a recent posting on his blog (Please Don't Buy This Book), he says "I fully realize that the Creative Commons license I chose permits someone to sell the ebook or even turn it into a book. I had no problem with that. My concern was that the book was being passed off as something new. That my trademark (and your expectations) were violated when Amazon sent out an email indicating that in 2007 I had a new book come out on this topic. The news is that the publisher of the book was incredibly responsive and has changed the cover. He's being really clear about the origin of the book now, and that was my point all along." Plus Godin received some good publicity, including a brief mention in The New York Times.
The takeaway: Others won't be so fortunate. It pays to read and understand the licenses that you grant, even if they are short or look "standard".
By the way, Godin is still making the ebook available for download for free.
Intellectual property (such as patents, copyrights, trademarks, and domain names, or “IP”) is becoming recognized as a new and separate asset class. At the same time, a new group of intermediaries and brokers has emerged to facilitate deals. Most of these companies focus on patents, because that’s where the money is, thanks to a series of rulings from the Federal Circuit upholding patent rights.
Some of the players include:
IP bankers. These include Ocean Tomo, which introduced live public auctions of patent portfolios. According to its web site, Ocean Tomo’s April 2006 auction resulted in over $8.5 million of transactions and a follow-on auction in October 2006 resulted in over $23 million of transactions. Its next auction is scheduled in April 2007 in Chicago. Inflexion Point Strategy is a more private shop run by Ron Laurie, an industry veteran and former intellectual property partner at the large law firm, Skadden Arps.
Online exchanges. These include yet2.com in Massachusetts, Tynax and 2xfr by PatentCafe in California. My understanding is that the transactions are too large and complex to be completed fully online, and that the online exchanges serve more as a meeting ground for deals that get documented and completed offline. Other exchanges are listed here.
Some online exchanges focus instead on incentivizing new research efforts, rather than on transactions for existing intellectual property, . These include Innocentive and Ninesigma.
Some IP transactions are even completed over eBay for patents, domain names and entire websites. Dedicated exchanges exist for domain name resales, such as Sedo.com and The Domain Name Aftermarket (offered by one of the leading domain name registrars, GoDaddy.com).
IP brokers. These include IMC Licensing, a sell-side broker of consumer brand (trademark) rights for licensing, and Gordon Brothers Group on both the buy and sell side. Another broker, breedersrights.com, specializes in plant patents and plant breeding rights.
IP brokers generally focus on IP assets, as compared to traditional investment banks and business brokers (such as brokers who are members of the International Business Brokers Association or the California Association of Business Brokers) who handle sales of stock or the entire spectrum of assets of a business or company.
Of course, literary, motion picture and sports agents (such as International Creative Management, Inc. (ICM) and Creative Artists Agency) have operated for years as brokers of copyrights to books, movies, songs, music and other entertainment and sports content. The movie Jerry Maguire, with its famous line “Show me the money,” is the story of a frenetic sports agent.
Brokers for patents should be distinguished from “inventor agents,” “invention developers” or “invention promoters,” which are regulated under the laws of several states, including California (see California Business and Professions Code Section 22370 and following), due to consumer issues faced by individual inventors for invention marketing services. (Articles for individual inventors seeking to protect themselves are available from Inventor’s Digest magazine and the United Inventors Association.)
IP Lenders / IP Securitization. Other companies, such as Licent Capital and Copient Capital, arrange for loans based on intellectual property or a royalty stream from a license agreement. On a more sophisticated level, IP portfolios and their royalties (e.g., from music catalogs) have been securitized as collateral for publicly traded debt. For more, see Securitization News. This site offers older articles specifically about IP securitization.
Valuation and Escrow Consultants. As with real estate, many firms offer valuation and escrow services. IP auctioneer Ocean Tomo also provides due diligence and valuation services, as well as “patent ratings,” a statistical measure of patent portfolio quality. Some of the domain name exchanges include a basic escrow as part of the transaction. Royaltystat.com offers a subscription-based database of royalty rates and license agreements compiled from the U.S. Securities and Exchange Commission (SEC) Edgar Archive.
Buyers. There are many new buyers too. Some of the new buyers have been labeled as “patent trolls” because they purchase or create patent rights solely for the purpose of licensing them to third parties, often threatening or pursuing litigation to extract licensing royalties from operating companies. Recently, some buyers have been purchasing rights to older music and seeking royalties for its use in sampled music; they’ve been termed “sample trolls.”
The companies and resources listed above are for information only, not endorsement.
For those who enjoy reading statutes (many lawyers, virtually no businesspeople): the expression "AS-IS" comes from Section 2316(3)(a) of the California Commercial Code, which states, "Unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like "as is," "with all faults" or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty."
Translation: if the seller says the product, or the software, or the website, is sold "AS-IS" then it's "BUYER BEWARE" for the buyer.
Mostly anyway. Unless, as the statute says, "circumstances indicate otherwise." Circumstances might indicate otherwise if the seller states something along the lines of: "This software is licensed AS-IS, but I guarantee that it will run on Windows Vista."
Why AS-IS?
It's one of the shortest expressions in commercial contracts and licenses that I know. And it's legalese, without really sounding like legalese. And its meaning is (mostly) self-evident, even to people who aren't lawyers.
Welcome to the AS-IS blog, where I plan to discuss ecommerce, internet, software and technology contracts and licenses, as well as the laws affecting internet and software companies, both large and small. My focus is on California law and Silicon Valley.
This blog is sponsored by the Boadwee Law Office. Please visit that site to learn more about me (attorney Harry Boadwee).