Four Out of Eight Doesn’t Cut It: The IP Safeguards that Most Lawyers Miss When Protecting Software – IPWatchdog.com

Eight safeguards are essential for a full, robust software protection regime. [But most lawyers] only learned about four of them in law school. In todays world, lawyers need to go beyond law school and include real-world, practical solutions to augment the legal protections that are their bread and butter.

Software is an extremely valuable good for those who produce it because it provides value to the softwares end users. That value, however, also makes it a target for those who would prefer to obtain the value without compensating the software producer. As a result, like with any valuable asset, software suppliers and Internet of Things (IoT) companies must implement safeguards to protect it. Since software is intellectual property, attorneys who work for or advise software producers (which, lets be honest, is just about every technology company these days, given the addition of hardware manufacturers via the ubiquity of their smart devices to the existing desktop, mobile, and SaaS applications that we all use in both our personal and business lives), are frequently asked to advise on how to best protect this valuable asset. Unfortunately, as discussed below, most lawyers only deliver half of what they should.

Eight safeguards are essential for a full, robust software protection regime. Despite that, most lawyers talk about only four of them. In their defense, they only learned about four of them in law school, which is why thats their go-to advice. But in todays world, lawyers need to go beyond law school and include real-world, practical solutions to augment the legal protections that are their bread and butter. This article will review all eight, but the bulk of the discussion will illustrate the importance and usefulness of the four less-frequently discussed methods.

The first four methodswhich lawyers already know about and take action onfocus on protecting software from a purely legal perspective:

While each legal protection discussed above is great and must be considered, the truth is that the best outcome for the software producer is when they never have to rely on the legal protections at all. Enforcing legal rights is expensive, time consuming and distracting to a software producer that would much rather focus on developing the next product instead of defending the last one. How do you do that? How do you avoid having to actually rely on the legal protections we just laid out? By using technology to prevent the software from being misused or overusedintentionally and unintentionallyin the first place. Below are some practical solutions your clients can deploy:

The final software protection strategy is less about protection of the software producers rights; its more related to solidifying the foundation of the software producers products. Most commercial code today relies to some degree (and often to a great degree) on the use of open source software components. Open source software, as referenced above, is code developed by third parties and then incorporated into a software producers final product. While theres usually no fee charged by the open source provider, the open source code is subject to contractual requirements. Given that this whole article is about how to protect your clients software from misuse, it would be ironic if your client then failed to take the necessary steps to ensure it didnt misuse open source software! Unfortunately, open source software is unmanaged by most companies. On average, most software producers are aware of and manage a mere 5% of the open source software used in their products. Failure to fully document and understand open source usage and to comply with relevant obligations can undo all of the careful work taken through the first seven safeguards above.With this in mind, the final safeguard is:

In 1941, baseballs Ted Williams of the Boston Red Sox finished the season with a .406 batting average, meaning he successfully reached base in .406 of his at bats. In the 79 years since, no one has equaled that feat, heralded as one of baseballs unbreakable records. While thats impressive, it means Mr. Williams failed almost 60% of the time! In the world of software protection, the good news is that most lawyers are out-hitting Ted Williams, usually deploying 50% of the protection schemes available to them. The bad news: 50% isnt cause for celebration. Using the additional four practical protections discussed above is what will provide a comprehensive approach to protecting software. Eight out of eightthats something to celebrate.

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Marty Mellican is Vice President and Associate General Counsel at Revenera (formerly known as Flexeras Supplier Division).

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Four Out of Eight Doesn't Cut It: The IP Safeguards that Most Lawyers Miss When Protecting Software - IPWatchdog.com