Ward Classen is a member of the legal department of Discovery Education, Inc. He has over 35 years’ experience negotiating complex information technology agreements and has practiced with many of the world’s leading technology companies, including Computer Sciences Corporation (now DXC Technology Corporation), Accenture, and InterDigital, Inc. Ward is the author of A Practical Guide to Software Licensing and Cloud Computing. The seventh edition will publish in October 2020.
Question: What triggered your interest in software licensing?
Answer: As a young lawyer I attended an ABA Annual Meeting and had the good fortune to participate in the Business Law Section’s Software Licensing Subcommittee meeting where I met Ray Nimmer, Holly Towle and Don Cohn. They encouraged me to pursue my interest in software licensing and were always willing to answer my questions. Over the years we continued to cross-paths as a client, opposing counsel or opposing expert witness.
Question: Software licensing seems complicated. For the lawyer, what knowledge do you need to acquire before you even start approaching all the legal implications of the topic.
Answer: It is important to have a strong understanding of how the underlying technology will be used by the client to ensure the client obtains the rights it needs. Once an attorney understands how the client will use the underlying technology, he/she can apply the principals of commercial contracting and software law.
Question: What are some of the common pitfalls companies make when it comes to software licensing?
Answer: Many companies fail to fully understand and anticipate their technology needs, as their current and future needs will evolve over time, often preventing the company from obtaining the rights they need to meet their business objectives. For example, prudent companies should carefully consider who will access and use the software application and how such use and access may change in the future.
Question: The appendix material in your book is fantastic—and so comprehensive. Where do you think software licensing is headed? What are the challenges?
Answer: Software use and licensing continues to evolve with changes in the market, requiring an attorney to remain abreast of changes in how technology is utilized and licensed. While on-premises licenses were once the norm, an increasing number of users now access and use an application through cloud computing. Recently, COVID-19 has changed how users access and use applications, as many employees are using corporate licensed applications on their personal computers, where previously they accessed and used the application only on their employer’s hardware.