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1991-08-07
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MODEL SOFTWARE LICENSE DRAFT
A Project in Progress
Working Draft 2.0
INTRODUCTION AND SUGGESTIONS FOR USE
Working Draft 2.0 of a Model Software License Draft has been released by
the Committee on Computer Software of the American Bar Association's Section
on Patent, Trademark, & Copyright Law. The new release represents a re-
casting, refinement, and expansion of the Committee's Model Software License
Provisions, Preliminary Discussion Draft Version 1.0, dated December 5, 1990.
Suggested Attorney Use. Working Draft 2.0 is designed to serve as a
baseline for an integrated, negotiated agreement. Numerous options and
choices are built into the text (indicated by angle brackets and
superscripted letters), along with a considerable amount of commentary.
One convenient way of generating a first working draft of a license
agreement using the Model License is to mark up a hard copy of the latter
document. Undesired options (e.g., sublicensing provisions) can be marked
out and/or edited; blanks can be filled in; and any desired additional
provisions can be inserted. The changes can then be made by word processing
personnel to produce a semi-custom first draft.
Recasting from Consensual Statute to Model-Provisions Library.
Preliminary Discussion Draft Version 1.0 was drafted as something of a
"consensual statute," designed to be incorporated by reference in a
comparatively short negotiated document. That version was indeed used as the
baseline draft in several actual license negotiations. On two occasions in
one week alone, the Committee chair and principal drafter of Version 1.0 was
asked by different clients to help negotiate license agreements whose first
drafts (prepared by other counsel) were immediately recognized as having been
based on Version 1.0.
The consensual-statute approach proved inconvenient in actual negotia-
tions, however. It became clear that a different approach might be more
useful. Working Draft 2.0 represents instead a drafting tool for attorney
use.
Training Tool. The Model License may also prove useful as a training
tool for junior attorneys. A more experienced lawyer can ask a junior
attorney to prepare a first draft of a software license agreement by marking
up a hard copy of the Model License. The more experienced lawyer can then
review the marked-up version with the junior attorney before the mark-up goes
to word processing.
Substantive Organization of Model License. The Model License is
designed to serve as raw material, organized in modular form (something like
an on-line form book) for counsel wishing to create a first draft for use in
negotiations. The provisions are arranged in broad categories corresponding
roughly to the categories of important issues that arise in the life cycle of
a license relationship (but can of course be rearranged to suit the editorial
needs of counsel drafting an agreement):
■ Start-up, including license grant, delivery, testing, acceptance,
source code escrow: Articles 1 through 4.
■ Operations, including use of the Licensed Software, redistribution
(of packaged software), sublicensing distribution, maintenance,
upgrades: Articles 5 through 17.
NB: Provisions for payments and reports that are expected to
be predictable, e.g., license fees, royalties, etc., are
generally grouped together. On the other hand, payments and
reports that are expected to occur only occasionally if at
all, e.g., payments for special Technical Services, are
generally grouped with the corresponding substantive
provisions.
■ Risk allocation, including warranties, remedies, defense and
indemnity obligations: Articles 18 through 22.
■ Intellectual property rights, including confidential information,
inventions, copyrightable works, trademark rights, infringement by
third parties: Articles 23 through 26.
■ Termination, including notice and cure periods, post-term
procedures and actions: Article 27.
■ Dispute resolution, including a provision for escalating executive-
suite involvement in negotiations and for private-trial appealable
arbitration: Articles 28-29.
■ General provisions, e.g., choice of law, choice of forum: Articles
30-31.
■ Schedule A: certain deal-specific data and information. As a
purely editorial matter, in many license agreements some of the
specific data and definitions from Schedules A and B could be moved
into the body of the Agreement.
■ Schedule B: some 100-plus defined terms (many of which will be
inapplicable in, and could be edited out of, many license
agreements, of course).
■ Escrow Agreement form for source code escrows.
■ Private Trial Appealable Arbitration Rules.
For convenience in drafting, most fact-intensive, deal-specific
definitions (e.g., detailed technical identification of the Licensed
Software) are segregated into Schedule A at the end of the Model License,
rather than being included in the "Definitions" article (Article 2), which is
intended to serve principally as a definition of legal terms as opposed to
factual terms.
General Information for Nonlawyers. The Model License, and particularly
its commentary, may prove helpful to nonlawyers seeking general information
about how software license deals can be structured. The Model License may
also be useful as a "term sheet" at the outset of business negotiations.
Drafting of a software license agreement is a complex undertaking,
however, requiring an understanding of many sophisticated areas of law.
Small changes in the circumstances of a deal, or in the wording of an
agreement memorializing the deal, can make a large and even critical
difference in the parties' legal rights. A review of the Model License
cannot take the place of professional advice in a license negotiation.
Acknowledgements. The Model License borrows ideas and approaches from
sources too numerous to mention. Special thanks to the following attorneys
for their thoughtful comments on Version 1.0 or other contributions (and the
Committee chair apologizes to anyone who should be listed below but isn't):
Tom Arnold Arnold, White & Durkee Houston
Amelia H. Boss Temple University Philadelphia
Steven D. Dellett Arnold, White & Durkee Houston
T. Stephen Dyer Ross & Hardies Chicago
Arthur Fakes Arthur Fakes, P.C. Lombard IL
Julian A. Hecht Frank, Bernstein, Conaway & Goldman Baltimore
Michael A. Jacobs Morrison & Foerster San Francisco
Michael S. Khoury lark, Klein & Beaumont Detroit
David W. Maher Sonnenschein Nath & Rosenthal Chicago
Raymond T. Nimmer University of Houston Houston
Hilary E. Pearson Simmons & Simmons London
Mark F. Radcliffe Ware & Freidenrich Palo Alto
John T. Ramsay Macleod Dixon Calgary
Diane W. Savage Ware & Freidenrich Palo Alto
Steven K. Sims Ross & Hardies Chicago
The specific terms of the Model License, however, do not necessarily
represent the views of any of these attorneys, nor of any Committee member,
nor of their firms or past or present clients.
Disk and Hard Copy Requests. The first version of Model License,
published as the Model Software License Provisions in The Computer Lawyer and
in the ABA PTC Section annual report, included an offer to send a disk copy
gratis to interested parties in the hope of getting as many comments as
possible. Many requests for disk copies were received in response to the
offer.
For Working Draft 2.0, disk copies will likewise be sent gratis; send a
disk mailer or FAX your name and address to the Committee chair at the ad-
dress below. Each disk copy, on a high-density IBM AT 5.25-inch disk,
includes two copies of the Model License, one in Word Perfect 5.1 format, the
other in generic word processor format (CR/LF at the end of each paragraph).
Please address inquiries concerning other disk formats to the Committee chair
at the address below.
To obtain a hard copy of Working Draft 2.0 (approximately 90-plus
pages), please send $10 per copy to help defray copying and postage expenses,
along with your name and address, to the attention of the Committee chair at
the address below. Please make checks payable to Arnold, White & Durkee.
Publication Authorization. The Model License is a copyrighted work.
Comments and suggestions are desired from as many sources as possible;
accordingly, copies of all or part of Working Draft 2.0, including this
Introduction, may be made and distributed in any electronic or hard-copy me-
dium, on a nonexclusive royalty-free basis, provided that the cautionary
legend at the bottom of the cover page of Working Draft 2.0 is included.
In addition, license agreements based on Working Draft 2.0 obviously may
be created by attorneys for client or own use, again on a nonexclusive
royalty-free basis.
Request for Comments and Additional Provisions. Comments and
recommendations are welcome, especially suggested new provisions, variations
on existing provisions, and possible commentary.
August 6, 1991 D. C. Toedt III
Chair, Committee on Computer Programs
ABA Section on Patent and Trademark Law
c/o Arnold, White & Durkee
750 Bering Drive, Suite 200 (77057)
P.O. Box 4433
Houston, Texas 77210-4433
713-787-1400
713-789-2679 (FAX)