Hard bargains and software licenses: with the software licensing ground rules changed and changing, caveat emptor is not a warning, it's a mandatory exercise. (Technology).
Ensuring that institutions of higher education have the software they need and are able to license it on consistently favorable terms has meant a reexamination of business practices across multiple administrative units--IT, purchasing, and legal--that had in the past only coordinated loosely if at all. In the late 1990s, a different approach emerged; colleges and universities began to realize that software--whether ordinary office applications, departmentally specific tools and programs, or core network and database technologies--needed to be treated as strategic assets.
DISCOVERING WHAT YOU HAVE
In 1997, MIT launched the Software Licensing Discovery Project, which looked at existing practices for acquiring software licenses, found the gaps in those processes, and proposed improvements for the future. They found that over 50 software titles could be considered critical because of their scope of use or importance to key functions of the university. But they also found that approaches to obtaining licenses were haphazard, and that staying current with upgrades and releases of new versions was all but impossible.
An important part of MIT's response was to create in 1998 a Contracts Team consisting of intellectual property counsel, software acquisitions specialists, and a business manager. The group's charter is to facilitate effective software license contracting by setting institutional priorities, negotiating legal terms and conditions directly with vendors, and assisting other staff in the development of good contracting practices. You can take a look at the Contracts Team Web site at web.mit.edu/is/contracts/contracts.html. It includes a clearinghouse of information about software under license at MIT, and a checklist of questions to guide faculty and staff who are considering new licenses.
SOFTWARE AS STRATEGIC ASSET
At the University of California at Berkeley, the office of Strategic Vendor Relations (ist-soft.berkeley.edu:4204) negotiates site and volume license contracts for "strategic technologies," assists departments and project groups in their license negotiations, and serves as a liaison among Procurement, Business Contracts, and other departments regularly involved in software acquisitions. The SVR's Bob Callaway, speaking in a TechTalk forum of the Corporation for Research and Educational Networking (CREN), sketched a vision for a future e-business approach to central support of software licensing. In his model, a Web-based service would show members of the campus community what is already available, and enable them to open inquiries about their needs and acquire software and upgrades on a self-service basis.
THE LIBRARY ANGLE
Libraries have become major buyers of access to digital information, which they acquire through licenses that bear many resemblances to those for software. The Yale University library hosts a Web site called Liblicense (www.library.yale.edu/~llicence) that offers extensive resources for librarians who negotiate licenses for information transmitted and accessed via computers. A unique feature of the site is a model license that lays out basic terms of contract that can be used by libraries in proposing amendments to vendors' standard contracts or drafting whole contracts themselves. Ann Okerson, associate university librarian at Yale, says that in the last year atone, more than a half dozen vendors have signed variations of the Liblicense model in lieu of their own, as they were concluding contracts with libraries at various universities.
State and regional consortia play an important role in higher education licensing practices. Most colleges and universities now participate in at least one buying consortium and often more than one, as memberships tend to overlap and to be non-exclusive. The Oregon Educational Technology Consortium (www.oetc.org), for example, offers discounts on eight online resources products and 28 software titles. The North East Regional Computing Program lists five titles under contract on its Web site (www.nercomp.org). Karen Partlow, learning and Information Technologies Program administrator for the IL-based Committee on Institutional Cooperation, says that its members saved $530,000 on a three-year contract for anti-virus software. The CIC's Center for Library Initiatives has saved over $15 million since its inception. Consortia have two important functions: negotiating contracts for pricing below the list-academic level, and articulation of members' needs--particularly for license terms and conditions--in discussions with vendors.
CHANGING BUSINESS PRACTICES
Changes in business practices related to software acquisition are not limited to large institutions and consortia. Art sizes of colleges and universities report struggling with asset management in IT--the challenge of knowing how many computers they have, where they are, and who is using them. Larger schools have the volume of business to leverage discounts but have a hard time coordinating their numerous participating departments. Smatter schools generally are better able to centralize standards-setting and budgeting for software. At Smith College (MA), Executive Director of Information Services, Herb Nickles, says a new multi-layered model for software licensing now addresses 95 percent of titles used by the college. The remaining pocket, says Nickles, is comprised of applications that were acquired under grants supporting innovation, but which have not yet found their way into one of the categories for ongoing licenses and funding. Important byproducts of the work that produced the centralized licensing model were a reduction in the number of different titles in use, improved support for what is licensed, and assurance that all software is appropriately licensed.
Correspondence in the Educause listservs for CIOs and for licensing issues points to dissatisfaction with trends in license terms and conditions, particularly in Microsoft's Campus Agreement and successors, but with other vendors of widely used software as well. The requirement for per-seat licensing in conjunction with annual subscriptions has been criticized for raising the total cost of using the software, particularly where IT managers prefer to control the timing of product upgrades. The toss of home use (permission to install campus-licensed software on home computers) has also been a blow. That provision of site licensing was often critical as a trade-off in enlisting faculty support for tighter management of software copies on campus. And the growing interest in mobile computing has raised concerns about contractual limitations on the specific computers licensed to run software. When a new student center opens, offering wireless network connectivity in lounge and study areas, the institution would like to have the software it has under license be accessible to any computers in those network zones.
DRIVING THE BARGAIN
Software vendors almost always have a standard contract they expect the customer to sign. But read those contracts carefully: reviewing them might disclose some terms and conditions that your college or university may want to negotiate. A list of commonly cited points includes:
* What are your usage rights? Is this a perpetual, or subscription license?
* What is the definition of "site"? Is it geographically restricted, or will it cover your staff and faculty wherever they are doing the institution's work?
* What is the scope of coverage? Are you licensing the entire campus for software used only by database maintainers, and so paying too much?
* Is there transferability? If you replace a desktop computer with a laptop, can you move the software to the new machine, or does the vendor consider the new install an additional license slot?
* Is the support level adequate? Is there a service level agreement defining that support?
* What state's taws will govern any disputes? Has the vendor chosen Maryland or Virginia, where recently enacted Uniform Computer and Information Transaction Act (UCITA) taws give vendors stronger rights by default?
GETTING IT RIGHT
Colleges and universities have a high stake in obtaining and continuing reliable access to the software they need. But to be effective in contracting for licenses, they need to discover their current use and licensing practices, manage them better, and come to the bargaining table ready to negotiate the full range of terms and conditions--before they even get to the price.
Tom Warger is a technology consultant for Edutech International (www.edutech-int.com).