Category Archives: Sun

Open

…MEDIA

I was comforted to see that California is considering adopting open document file formats. This follows similar announcements by Oregon, Texas, Minnesota and Massachusetts.

Why “comforted”? Well, I live approximately eight miles from the epicenter of this. After the quake, local radio and television communications were sporadic. And, at that time, cell phones were rare and public use of the internet almost unknown. For several days, many of us were untethered from government services and emergency information. It was frightening not being able to communicate with family and friends or to understand what actions you needed to take.

A little more than 15 years later, the residents of New Orleans experienced this same sense of isolation. But this time, it wasn’t because of a lack of communication infrastructure or technology. In fact, internet access was widely available in the aftermath of Katrina. The issue was that many citizens could not access government services because the software applications they used contained file formats that were incompatible with what the government was using. This same issue impeded the Thai government’s efforts to provide relief to citizens after the tsunami.

To remedy this problem, many companies and governments are adopting something called “ODF” or “Open Document Format”. (To be honest, it’s not a great name, but more about that later.) ODF is an open standard that enables applications from different vendors to share data (for example, documents, presentations and spreadsheets). ODF has been approved by both the International Organization for Standardization (ISO) and International Electrotechnical Commission (IEC). The ODF Alliance, which was launched to drive ODF support, currently has over 340 member companies and governments in over 47 countries.

If governments adopt ODF, then citizens are assured that during the next emergency their access to government services will not be limited by the fact that they are using OpenOffice or Firefox or Safari.

So why do I dislike the name? Let’s face it, “Open Document Format” isn’t exactly riveting. To make things worse, in the technology world we do love our acronyms and use “ODF” when speaking about this topic. The name also focuses on documents. Instead, it should include all forms of media. With the advent of companies like Sharkle, Twango and YouTube, it’s just a matter of time until governments provide video based services like real time traffic information, instruction on how to complete your tax returns (note to self – it’s due in a few hours!) or tutorials on preparing for an emergency. All of which is to say that it’s disappointing that the name isn’t more captivating and reflective of the importance of ODF to every person who interacts with a government organization via the internet.

…SOURCE

After over a year of work, the Free Software Foundation has released the revised draft of GPLv3. When finalized, it will be the first new version of the GNU Public License in 15 years. Among the proposed changes, the draft license includes:

A restriction on the use of DRM technology for licensed programs. (Section 3)

A requirement that manufacturers of consumer products provide source code and installation information for the code. (Section 6)

A grant of patent rights for any redistribution of licensed programs. (Section 11)

Provisions addressing the recent agreement between Microsoft and Novell. (Section 11)

The draft can be found here. The FSF is accepting public comment on the draft until the end of May.

…DISCUSSION

Recently, I joined a meeting of San Francisco bay area legal bloggers. Attendees included law students, sole-practitioners, in-house counsel and members of several bay area firms. It was a very interesting session, which Prof. Goldman has recapped here (March 29th post).

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Life in Silicon Valley.

I grew up in many places in the United States. In all of them, the term "road-kill" meant something entirely different.

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Happy Trails.

Here’s another thing that is becoming a tradition in our organization (at least in the Bay Area). When someone leaves the department for a new job, we give them a send-off at the Old Pro. As part of this, they are required to ride the mechanical bull.

Thanks to the wonders of on-line video, I present KLA-Tencor’s newest General Counsel.

Congratulations, Brian!

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My admin, John Stockton

This wonderful woman is my administrative assistant. You’re correct. She is not John Stockton. John Stockton is a 6’1″ former point guard for the NBA Utah Jazz. My admin stands about 5’5″ and, to my knowledge, does not possess much “round ball” experience. (As I write this, I’m enjoying a funny visual of her driving the lane against Yao Ming.)

For those of you who are not fans of U.S. basketball, John Stockton wasn’t flashy or outspoken. He didn’t possess overwhelming physical skills. And, he was a bit average in the scoring department. Yet in 1996, he was voted one of the top 50 players in NBA history. How did he accomplish this? Stockton’s special talent was that he elevated the game of everyone around him. He was one of those athletes who was seemingly always around the ball and he possessed that unique ability to know where he was in relation to everyone else on the court. Above all else, he was selfless. He made a career of giving teammates the opportunity to score rather than taking the shot himself (15,806 times to be exact).

Although she is not John Stockton, my admin plays the same role in our organization. She seems to have a sense of what issues need to be handled before anyone else is even aware they exist. She rarely asks for direction. Instead she identifies a problem and fixes it. She’s a mentor (formal and informal) for many in our department. She’s a cheerleader. She’s a diplomat (although she can throw some elbows when needed). And, she is constantly taking on significant new responsibilities.

It took some time for me to fully appreciate the value she provides as I’ve operated most of my career with little need for administrative support. But after we had worked together for about three months she did something that made me take notice. What she did was clear my calendar of all Friday afternoon meetings for the rest of the year – without asking me. When she told me this my initial reaction was less than positive, but I decided to listen to what she had to say. Her explanation was that she had observed the way that I work (multiple working locations and non-stop meetings) and felt that I needed to block out time to think strategically and work on longer-term initiatives. Rather than being upset that she didn’t consult me, I welcomed her proactivity. It took courage for her to do this, especially with a new manager. But, she was absolutely right.

Since then, I’ve frequently marvelled at how she understands the needs of the organization, assesses what needs to be done and makes it happen. And, she is not a singular example. We have many other support personnel who act the same way. Often without notice or fanfare, they help us to always perform at a higher level.

All of which makes me wonder about the cranial capacity of managers who are described in articles like this.

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Contracts with clarity

After many years in the profession, I’m convinced that the most difficult skill for any lawyer to master is the ability to write with simplicity and clarity. I believe there are several reasons for this. The first is that under the ethics rules of most bar associations, lawyers are charged with “zealous” representation of the interests of their clients. Not “good” or “satisfactory” or “adequate” – but, “zealous”. As a result, most attorneys draft agreements to cover every possibility no matter how remote or unlikely.

A second reason is that attorneys seldom create agreements from scratch. Instead, in the interests of efficiency, we build off existing templates and add additional language covering any contingencies that we have experienced or imagined. When the next attorney uses your template, he or she rarely challenges the necessity of the additions that you have made. With each revision, the agreement grows in size and complexity. It’s not dissimilar from the process of creating some software.

Now layer onto this a third factor – fear of malpractice. Those stories about a minor drafting error resulting in a significant damage award are not just apocryphal.

The result is lengthy and verbose documents that create more ambiguity than they resolve. A classic example is the “force majeure” clause that you see in many agreements. Originally, it was intended to identify occurrences outside the control of the parties that would excuse non-performance – i.e. “acts of God”. Attorneys then decided to include a list to identify what specific events were intended. Rather than tailoring that language to each contractual arrangement, successive attorneys kept adding to the list – “just to be on the safe side”. I’ve seen agreements identifying “volcanic eruptions” as a force majeure despite the fact that the geographic location of the contracting parties has not seen this type of event since our long ago predecessors walked the earth.

Unfortunately, these habits are difficult to break. For me it wasn’t until attending a class on legal writing that I began to understand that the complexity of my drafting was in many cases not protecting my clients. Instead, it was creating ambiguity. And, in the contract world ambiguity begets litigation.

With this in mind, I have actively “encouraged” 🙂 my organization to create contracts that are models of clarity and simplicity. We owe it to our internal clients and especially our customers. I’m happy to report that we are making progress. With the support of outside counsel (one who understands the benefit of drafting clarity) and reliance on the SEC’s guidelines for Plain English” our team is beginning to roll out new forms of contracts that we will be using with customers this year. I’ll admit it is not happening at the pace I would like, but given the breadth of our company’s business and our many types of partner relationships, we have a large number of agreements to change.

To give you a small example of the magnitude of the change, here’s what one agreement used to say about ordering:

Ordering procedure

  1. Company may order Products or Services by:
    1. submitting an Electronic Order in the manner directed by Sun; or
    2. submitting a Purchase Order to Sun (and Company acknowledges that Electronic Orders for certain Products or Services may require to be supplemented by a Purchase Order); in each case specifying the Products or Services required and referencing the General Terms and applicable Exhibit numbers. By doing so, Company agrees that the Order is governed by the Agreement.
  2. Sun may accept the Order by:
    1. issuing an Order Confirmation to Company; or
    2. shipping the Products or initiating performance of the Services required in the Order.
  3. The identification of the Products or Services in the Order, Service Contract and any Order Confirmation, together with any applicable Service Listings or SOWs and the Agreement, will create a binding contract between Company and Sun for the purchase of those Products or Services.

Here is what we say now:

Placing an order
To buy a Sun product or service you must send a purchase order to us or, if you meet our requirements for placing orders electronically, you may send your order to us electronically in the way we tell you.

How we accept an order
We will show that we have accepted your order by:

  • shipping the product;
  • starting to provide the service; or
  • sending you a written acceptance.

You agree that these contract terms apply to any order we accept.

Notice any difference?

By the way, just to make sure that our efforts resulted in truly simple and easy to understand contracts, we did something else. We sent our agreements to an organization in England called the “Plain English Campaign”. This organization is an independent group with members in over 80 countries focused on fighting for plain English in public communications. The result? The Plain English Campaign reviewed our agreements and awarded them a “Crystal Mark” certification. It’s a sign that the terms meet the Campaign’s criteria and are considered a model of simplicity and clarity. We think our customers will feel the same way.

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Caracas and Mexico City

I just returned from a visit to our operations in Caracas and Mexico City. It was great spending time with the local management teams and understanding their unique challenges and opportunities. In both places, I spoke at “town hall” meetings to give employees a better understanding of some of our recent announcements. There’s been so much news lately, it’s difficult to comprehend it all – especially when you are in a field office 3,000 miles away from headquarters.

I attended meetings in both cities with members of regional IT associations and local economists. They provided validation for what we already know – the Latin American market is growing rapidly. One economist made the case that Mexico should be considered a BRIC country. He based his position on a variety of economic measures (GDP, inflation, population, infrastructure) and comparisons with Brasil, Russia, India and China. Overall, it was very compelling.

In Mexico City, I visited with executives at one of Latin America’s largest media companies. They are using Sun technology as the backbone for a new global distribution system for news, entertainment and sports content. It was surprising to learn the reach of Spanish telenovelas – they are now distributed globally including to Japan, Russia and Australia. Perhaps, “Ugly Betty” (based on a Colombian telenovela) represents a new shift in television programming in the U.S.

When visiting our field offices, it has become a Sun Legal Department tradition that we partake in the most “interesting” food of the region. In Mexico City, it was crickets and worms. To me, it wasn’t a big deal. I can eat anything deep-fried in beer batter and chili oil. This is the WGEA* about to make the jump into the gustatory void with a nice crispy worm.

The best part of the trip was the time I was able to spend with our local field attorneys. The volume and breadth of their work is always impressive. On any given day, they manage complex sales agreements, employment issues, litigation, tax concerns, compliance training and attend meetings with government officials. The rest of the time, they handle their “day jobs”. In both locations, recent government actions have added significant complexity to their work. The situation I observed in Caracas was the more extreme example. The current congress in Venezuela has given their president broad powers to unilaterally enact laws for a period of 18 months in a wide range of areas. The result is that new laws and changes to existing laws are issued almost weekly. Last month, Venezuela’s president announced plans to nationalize the country’s oil, telecommunication and electricity companies. There are concerns that he may go further.

I spent over an hour meeting with a group of eight local attorneys in Caracas to discuss this fluid political situation and how it impacts their work. They represented a cross-section of the local legal profession – lawyers from firms and in-house with IT, energy and telecommunications companies. They very openly described the challenges of trying to advise their clients about laws that appear first in the morning newspaper with no prior legislative debate or announcement. Many of these new enactments were described as inconsistent or ambiguously drafted. This forces citizens to seek prior approval from the government before taking any action. And, there is no stare decisis to be relied upon for guidance.

It’s a very anxious environment in which uncertainty pervades most aspects of life. Thus, I was surprised at the candor of our discussion. I was also impressed by the resilience of these attorneys. They weren’t giving up. Instead, they were focused on applying their skill, training and knowledge to support their clients through this turbulent period. I left the meeting filled with admiration and honored to be part of the same profession.

(*World’s Greatest Employment Attorney)

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The people you work with.

While preparing for an “All Hands” meeting of our legal team, people submitted interesting facts about themselves, including some of their previous “occupational diversions”:

1. “I set fire to a grain drying machine at a major cereal farm.”

2. “I have swum in the Antarctic.”

3. “While working at Legal Aid in rural Kentucky, I slung hash to make ends meet, sampled squirrel pot pie, and met Loretta Lynn.”

4. “I was a gold medalist in synchronized swimming at the Jr. Olympics.”

5. “I boxed at the University of Notre Dame.”

6. “I moonlight as the ‘Pilates Coach to the Stars’.”

7. “I lived on a commune when I was 17.”

8. “I have spent way too much time in the mosh pit.”

9. “I made an accidental model rocket attack on an occupied police car.”

10. “My cousins are Danny Devito and Rita Perlman.”

11. “My shoe purchases directly support both the US economy and the cross-border balance of trade with Canada.”

12. “I like to wear my Tigger costume to the office.”

13. “My dog will be a model for a dog wear maker’s autumn/spring collection.”

14. “I always carry Mjollnir with me.”

15. “I was an archery and bowling champion.”

16. “I sold Vanilla Swirl ice cream cones on O’Connel Street in Dublin during the summer.”

17. “I got lost once while piloting an aircraft in Africa.”

18. “My favorite dance is the conga.”

19. “My pet king snake escaped in the house and we can’t find him.”

20. “While in high school, I was employed as a Bullwinkle the Moose mascot for one hour.”

21. “I was a security guard in an obscure Museum called ‘The Society of the Cincinnati.'”

By the way, our CEO included one of his on the list. I’ll let you guess which one.

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