Last week's request for information (see earlier posts here and here) has certainly stirred up some thoughts about how software licences should be reviewed.
Right: the IPKat's favourite way to review a software licence (from Texas State Library clip-art)
Veteran IP lawyer Richard Bridge succinctly raises various points that anyone reviewing a licence will need to ponder:
"1. Which side is she on--user or licensor?Many thanks, Richard! Alice Gould, a partner in London law firm Wedlake Bell, adds that when doing work of this nature you might find the FOLDOC Free Online Computing Dictionary a handy tool. Likewise, Richard Christou's Boilerplate: Practical Issues (4th ed 2005) may be helpful when considering the terms and conditions. The IPKat thinks this may be a Sweet & Maxwell publication, but couldn't find it in Sweet's online catalogue.
2. Law and jurisdiction (beware effect on the Unfair Contract Terms Act (UCTA) on use of jurisdiction provisions to sidestep the Act)
3. Dispute resolution/binding arbitration/dispute escalation (beware
much the same)
4. Service levels?
5. "There is no such thing as error-free software" - exclusion, limitation (particularly as to which host environments the program might or might not work with), structuring to maximise effect of the schedules in UCTA about the things to which UCTA does NOT apply
6. Backups (offer backup media at a reasonable price), the things
implied in to software licences and barred from them by the CDPA 1988. Source code escrows?
7. The grievous crime of users trying to get round encryption to
exercise such rights!
8. Ownership of media/loan; if loan, access to retrieve
9. Infringment warranties/indemnities (not). If commissioning,
ownership of copyright and proof of subsistence and title.
10. Costs in litigation if litigation can take place outside UK
11. Service (not in litigation)
12. Service (in litigation)
13. Is it the sort of software users might adapt or package? Or does it
package with it other licensed in items? Whole slew of issues here - not to mention what happens when the licensed-in bit undergoes a version change ...
14. Termination of licence, if applicable. Inspection (including by
back-door keys) to check for breach of licence terms.
15. If there are periodic licence fees, software clamping (of that
program, of other programs, of whole machines, by service engineer, or automatically)
16. Wealth creation - some software is used to create other works or
sources of revenue. Should the Licensor participate?
17. Intra-group use - Contracts (rights of third parties) Act and
barring remedies of non-parties.
18. Bespoke items - not posting details and confidentiality.
19. Computer games raise other issues too".