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.

A Software License Is NOT a Software License

I just read an excellent post on the ITAM Review. It's entitled "Oracle Customer Has Licensing Meltdown" and is located HERE.  Please take time to look it over. Both Martin & the original author have excellent points - points about software licensing issues that we continue to encounter yet never effectively address in the real world.

Software License Terms & Conditions Can Be Changed By The Licensor At Any Time & Without Directly Notifying You.

The key problem is this: As business technology consumers, specifically software consumers, we do not effectively negotiate our licenses. If we did, then we'd actually have to read the license. Having read a software license, and actually understood the inherent instability of the agreement, any sane negotiator would - or rather should - dump the product & the supplier right out of the supply chain and move on to their BATNA.

Instead, we either fail to read the license; or we do not understand what we're reading; or we assume that the copyright holder won't actually enforce the terms; or we treat the acquisition the same as a crack junky desperate for their latest fix - purchasing without regard to future problems.

Here's the bottom line: If you see a clause in a license that looks like this -

Modifications To This Agreement

"We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms and conditions at any time. You can find the most recent version of these terms and conditions on the Site, with the date of last modification noted above. Such modifications shall become effective immediately upon the posting thereof. Therefore, we encourage you to check the date of our terms and conditions whenever you visit this Site to check if they have been updated. You must review this agreement on a regular basis to keep yourself apprised of any changes. If you do not agree to the revised terms and conditions, your sole recourse is to immediately stop all use of the Services. Your continued use of the Services following the posting of modifications will constitute your acceptance of the revised terms and conditions."

It means you do not have stability relating to your existing license terms. This basic wording will show up in your original license as well as contract renewals, updates, upgrades, (even patches) so look for it BEFORE installing. Once you have activated the license by installing (or even accessing) the product, you are stuck with the new terms.

Keep in mind that each of these license agreements also includes a "Right to Audit" clause that will be enforced by the licensor. During that audit, you will be responsible for conforming to the CURRENT terms & conditions for each product. If you are not up to speed on those changes, the auditors don't particularly care. You will pay the fines & penalties for being out of compliance.