danray

Makes me think of the second verse of "Joyride," from one of Built to Spill's first, punkier albums. https://www.youtube.com/watch?v=gncB-kQUUgQ&t=72s

"This part of the song is called the second verse

Sounds just like the first verse but with different words

But all it has is three chords and they are A D E and D

There are A D and E and D

There goes the Dm D A E D"

One wrinkle -- even under current case law, payments can still validly be collected for non-patent IP (most often trade secrets). Thus, the best practice from the licensor's is to delineate what portion of the royalty rate is attributable to the patent, the trade secret, the trademark, etc., and stop collecting each portion once the corresponding IP expires or is (finally, unappealably) held invalid.

Interesting. I tracked down the transcript (http://www.thisamericanlife.org/radio-archives/episode/496/t...) and found the section I think you're remembering:

     And for the 16 companies that did settle, the verdict may not change anything. In most cases, these licensing agreements have language that makes them nearly impossible to get out of, no matter what happens with the patent later on. This week, we heard back from a spokesman from one of the companies that chose to settle.

     The spokesman wrote in an email, quote, "We were hit hard by this lawsuit. Infringement on our part seemed completely bogus, but we could not afford to fight it. Even with the settlement, we were forced to lay off employees. We are still--" and "still" is in all caps-- "still paying out on the settlement agreement. We were unaware that the patent had been invalidated. We will be contacting our attorney to see what recourse we may have."

It looks like in this case, it was more due to the licensee's inattention than a winning legal argument. (Unfortunately, this is an all-too-common occurrence, no matter what the law says.) I'd be curious to know what happened once they did contact their lawyer.

A good license would probably say royalties are nonrefundable, and this makes sense -- if you threaten to sue me for $1 million and I settle for $25K, I've essentially paid to make the suit go away. So long as you don't sue me, I've got the benefit I bargained for. If it later turns out that the suit wouldn't have been valid, great, but it doesn't matter to me since I've already bought peace.

To your other question, though, no, a license that tried to force continued payments despite invalidation would be very atypical. In fact, to do so is currently per se unenforceable. (Note, though, that the Supreme Court might allow for some gray area in this rule in the coming months).

If your lawyers are "going to try and wrap up every single detail without considering any of the downside risk," you should get better lawyers. In particular, I find transactional lawyers have a much better "deal sense" than litigators moonlighting at it. Once you've found a lawyer you can trust, you're more likely to trust his or her judgment more on what the legal risks really are.

If it's the other side's lawyers who are overlawyering the agreement, why not politely suggest to your counterpart that they, not their lawyers, should be driving the deal?

Interesting way to look at it.

Another example, of course, would be digital rights management. Interestingly, DRM's high-water mark (from the perspective of those who insisted on it) began shortly after this article was written, when it was formalized by the DMCA’s anti-circumvention provisions. As the author would say, this helped to enhance the costs of “breaching” the DRM’s contract. (In the same way, laws against vandalism and petty theft enhance the costs of “breaching” the vending machine’s contract.)

In addition, serious SV firms will offer a fixed-price basic incorporation package. This is great, not only because the fixed fee is low, but because it tells you your company won't be the firm's guinea pig as it learns how startup incorporations and financings work. You might be surprised at how many smaller corporate firms (especially those not based here) don't have this sorted out.

I'm not sure what you mean here. In almost every circumstance, a Delaware incorporation is the best choice. As the author said, if you don't start there and don't fail, you're likely to end up reincorporating there anyway.

Good points in this article. Note as well that the LGPL requires you to permit reverse-engineering of your proprietary code. There are good reasons for this, but it's unrealistic in a lot of organizations.

A lot of developers (and a lot of lawyers!) rely on the rule of thumb that you're fine under the LGPL as you don't modify and don't statically link. That's a fine rule of thumb, but that's all it is.

I've edited to be clearer -- I'm referring to the use of Comcast's (and Time Warner's) logos, not the FCC's.

I agree that there are fair use arguments, which is why I said "practically": hosts take down fair-use content every day. A subset of that is eventually restored, but only after the parties have argued it out (frequently through their lawyers).

Be careful -- practically speaking, using Comcast's and TWC's names/logos is more likely to attract their attention early, and will give their lawyers a stronger argument (against Github or third-party sites) to have it taken down.

Simpler, but not effective. In almost every country in the world, copyright vests in the author automatically, even if the author doesn't use the old "All Rights Reserved" magic words.

Practically speaking, not including anything about copyright is just going to make your users (or their lawyers) ask questions before they ship, or before they're acquired, or....

If you really want to put it into the world for anyone to use without restriction, put it in the public domain (e.g., http://creativecommons.org/choose/zero/). But public domaining doesn't happen by accident — just failing to mention copyright doesn't cut it.

Half of these are unethical (i.e., they violate actual, binding rules of professional ethics with actual consequences).

The other half should be spelled out in the engagement letter. If you don't like it, tell your lawyer -- we really will negotiate on these issues.