Negotiating with Hitler - A Software Asset Manager's Reality

Recently, a practicing software asset manager (SAM) emailed me with a very typical question:

How can we get better software license terms when the software publisher refuses to permit us to negotiate the license terms?

"ARE YOU KIDDING ME???"

My answer was fairly comprehensive, but the bottom line was this:

As long as we permit the software industry players to play contract management games, we are as much at fault for onerous license terms & conditions as they are.

After multiple decades of negotiating with software industry players & their friends, I can give you one key issue that leads to a majority of costly problems for the business technology consumer:

The root cause of nearly every problem you will have with the software publisher, as long as you use their product (and well beyond) will be the terms & conditions of the license.

Learn to negotiate licenses. Learn to push back against onerous terms & conditions. Quit accepting software industry bullying as your only reality. You have as much right as the software publisher to gain mutual benefit in all contractual agreements.

The business technology consumers did not declare licensing & economic war on the software industry players. They declared war on us.

And, YES, you can quote me!

To download the full PDF document covering my observations on how the business tech consumer needs to change our approach to contract negotiations in general, and software license negotiations specifically, follow the link  HERE

It isn't going to be easy. We have to overcome nearly four decades of letting the software industry have its way with us, BUT we CAN become the initial agents for IT asset management change.

Non-Commercial Use Clause - A Software Licensing Land Mine

At The Institute for Technology Asset Management, we’ve encountered the “Non-Commercial Use” clause in multiple instances of enterprises being audited for non-compliance. The bottom line behind this clause is its very “obtuse-ness” (if you will).

Much like the “right to audit” clause & its reliance on various nebulous (ever-shifting?) definitions of both “audit” & “compliance”, the Non-Commercial Use clause permits the copyright holder to write the rules as they encounter the instance – even up to selecting the most useful copyright law to cite in your legal notification - thus maximizing the potential for non-compliance settlement fines & penalties.

Further (& again, we believe intentionally), VERY few IT personnel have any clue how non-commercial applies to ownership of the system versus how the product is actually being utilized much less which systems in the enterprise contain these products. As software asset managers - SAMs - it's up to us to help educate the enterprise about this hazardous clause - one that is present in a wide range of licenses.

Result of Misinterpreting This Clause: You become an easy - & conveniently defenseless - audit target!

Bottom Line: Closely review the license terms. If the license has a Non-Commercial Use clause, recognize that the clause essentially applies to both where you put the product AND how you use that product. Essentially, do not place the product on a corporate system & do not use that product to produce any subsequent product or service.

Want a revealing experience relating to this type of clause (from the perspective of real live IT personnel)?  Read the following thread - it's long...but invest the time in clearly understanding this classic disconnect between licensees & licensors.  The organization initiating the thread used an evaluation licensed product – with a non-commercial use license caveat - in a production environment.  The odds are really high that your own IT personnel have done this, or are doing this… The thread is HERE.

Software License & Copyright Compliance Assurance Quiz – It’s FREE!

Do you have questions about the ins & outs of software license compliance audits? Are you concerned that you may not be prepared to counter a software license audit, or a copyright violation audit? The average business is currently hunted by as many as 100 anti-piracy auditing groups. Very few enterprises trust these enforcement groups to provide answers without pursuing their own hidden agenda, so where can you go to find a trusted resource?

Take a few minutes & step through the following confidential quiz from The Institute for Technology Asset Management. Your ability to answer – or not answer – these simple questions will give you an excellent baseline regarding your chances of minimizing exposure to crippling software license non compliance & copyright violation audits.

The “Software License Compliance & Copyright Compliance Baseline Quiz” is available HERE. 

As you step through the quiz, keep track of the number of issues for which your only justifiable answer is "no." A valid justifiable answer is one you can prove "...to the satisfaction of the copyright holder..." so anything you cannot prove must produce a "no" answer to the quiz issue. Each of these issues will represent a specific weakness in your preparedness for stonewalling, or at least minimizing, the impacts of a punitive enforcement audit.