This article by Hunter Jensen, CEO of Barefoot Solutions, was originally published in the December 2007 edition of PHP Architect, a print magazine for PHP Professionals. It is the first article in a five part series on some of the different legal issues surrounding the web development industry. If you’re not a real estate agent, chances are that you have never put something in escrow. But using a trusted third party to store your PHP code could be the best way to protect your investment and your intellectual property rights on either side of a licensing agreement. I was recently asked to produce a fully-functional social networking module for a client’s web application. The catch: our company had six weeks to get it working. After weighing the options – including hiring a small army of programmers to write the software from scratch – we decided the best solution was to license some existing software and spend the six weeks customizing and integrating with the site. The code base was built for a standard LAMP stack, written in classical OO in PHP5 with one caveat: the PHP was encoded using ionCube PHP Encoder. All of the customization was to be done through the extensive web-based administration panel or the extension of very well documented classes, so our ability to customize was still pretty powerful. We were happy with the decision. But the software was not cheap. And for the small, upstart company that was licensing it to us, we would be their biggest client to date by far. This raised several important questions. What if the company went out of business? What if something later broke that they decided not to fix? What if the company shifts priorities and they stop developing this product? We wouldn’t have any access to the source code. That could be a serious problem. We needed a solution included in our license agreement before we were ready to sign anything. More than anything, the issue came down to trust. They couldn’t trust us with the source code in fear that we would sell it, give it away, or not protect it and have it stolen from us. But we were unable to trust that they would give us the source code if they were to go bankrupt, stop maintaining the code, or otherwise be in breach of the license agreement. Our solution to the problem was to use a service that I was largely unaware of, as I imagine most other PHP programmers are too. We decided to place the code in Source Code Escrow. Escrow 101: Who Can You Trust? When most people hear the word escrow, they think of placing a house in escrow while all of the inspections, credit checks, and other home buying headaches are taking place. Source code escrow is very similar in concept. At its most basic level, escrow involves a trusted third party which will hold on to some property and follow the terms of an escrow agreement. Generally the three players in a source code escrow agreement are the owner, beneficiary, and escrow agent. The owner can be any licensor, developer, or vendor that is somehow providing software to the beneficiary. The beneficiary is the licensee or customer that is the recipient of the software. And finally the escrow agent is some trusted third party, generally an escrow company, which arranges and enforces the escrow agreement. Source code escrow originally came into play to protect the licensees who were receiving the object code from a compiled language like C++ or Java. As PHP developers, object code is not a problem we face, but there are similar situations where an escrow agreement would be appropriate. First, if the code is encoded, obfuscated, or both, it is inaccessible just like object code. If a need for the source code could ever arise, then an escrow agreement might be appropriate. Another applicable situation is when a licensor hosts the software on their own machines. Even if the source code is not encoded, it is still inaccessible, and as such an escrow agreement might be appropriate. This arrangement is becoming more and more prevalent across the webscape as Software as a Service (SAAS) becomes a viable and thriving business model. This model was popularized early on by Salesforce.com, but since then has popped up in many industries from project management (Basecamp, e.g.) to personal financial services (Wesabe, e.g.). The process of arranging an escrow agreement begins with the owner and the beneficiary deciding on the “Deposit Materials”. These are the materials that are to be deposited with the escrow agent. They would include, at the very minimum, the source code of the software. Often however, more than just the source code is deposited. The owner may also provide other inaccessible materials such as the API documentation, build instructions, and/or any other proprietary tools that may be used for development of the build process. The deposit materials will be included in the escrow agreement, and will be verified in some form by the escrow agent. In addition to outlining the deposit materials, a complete source code escrow agreement will include a definition of the “Release Conditions”. These are the conditions which, if realized, will cause the escrow agent to initiate their release procedure, which may ultimately end up with releasing the source code to the beneficiary. Release conditions are to be negotiated between the owner and beneficiary. While every escrow agreement is different, some common release conditions include: The licensor goes out of business and/or files for bankruptcy and no entity will assume the licensor responsibilities for the software Licensor fails to meet the maintenance and update requirements outlined in the license agreement Licensor is acquired by another company that does not intend on continuing development Another essential piece of any source code escrow agreement involves outlining the “Permitted Use” of the source code. If one of the release conditions is met and the deposit materials are released to the beneficiary, those materials are released with a limited license as described by the permitted use clause of the agreement. The most generous permitted use clause would allow the beneficiary to maintain, modify, enhance, or even sell the software. While most agreements generally do not permit the resale of the software, it is common practice to give beneficiaries the right to make modifications. A piece of software would, over time, become unusable if it were not being updated and modified regularly. Like the deposit materials, the permitted use terms are to be negotiated between the owner and the beneficiary, and their respective legal counsels, to fit the needs of their particular arrangement. Technical Verification: Breathe a Little Easier While the deposit materials, release conditions, and permitted use clauses represent the major pieces of a source code escrow agreement, there are some intricacies that are worthy of discussion in all three of these areas. For instance, as a beneficiary, how do I know that the owner has deposited what he claims to have deposited? Any escrow company will do a physical inspection of the deposit materials to make sure that everything which is claimed is present and accounted for. For instance, if 3 CDs and a binder of documentation are claimed to have been submitted, the escrow agent will physically verify that all 3 CDs and the binder are in fact deposited, and that the CDs are readable. But what would stop the owner from submitting 3 blank CDs? Or encrypted code? To account for these issues is a service offered by most IT escrow firms named “Technical Verification”. The level of technical verification, like anything else, differs from agreement to agreement, but there are some common scenarios: Physical Verification – as described above, this is offered by any legitimate escrow agent File Verification – the escrow agent (or an independent contractor) can examine all media and report filenames and file sizes so that the beneficiary can confirm the presence of all necessary source files. They can go further by verifying that the code is not encrypted and/or obfuscated by randomly viewing files. Build Verification – many escrow agreements require the owner to submit build instructions with the source code. These instructions should be sufficient for a technically advanced person to successfully build an executable application. For a web-based PHP application, this would involve any server configuration settings, different application versions (PHP, MySQL, Apache, etc.), and any other information necessary to get a working version of the web application up and running. Then, this application can be run through a test plan agreed upon by both parties. In addition to the verification of deposit materials, it also important that the source code be updated regularly as the production version of the software gets updated. This can get tricky. If the escrow code is not being updated regularly, eventually it will become outdated and rendered fairly useless. Ideally, the source code in escrow should always be kept up to date with the software that the licensee is using. It can be tough for a beneficiary to know when the production software has been updated however. Particularly in a SaaS environment, where updates may be made as frequently as daily, it is not practical to expect the owner to update the escrow with every update made to the production code. A compromise that can be made in the escrow agreement is a requirement of software updates on a regular interval. For instance, in software that is being updated at least weekly, requiring that the escrow be updated monthly, on a specific day each month, would ensure that the code in escrow does not become outdated for the beneficiary without creating an unreasonable amount of overhead for the owner. The owner could also be required to send notice to the beneficiary each time that the escrow is updated, so that the licensee can properly monitor the situation. Release Conditions: Time to Share the Wealth. The particulars of the release conditions, and specifically the procedure followed when a release condition is met, is another issue that needs to be considered when drafting the source code agreement. Most escrow agents will have certain standard release procedures, but they can be fine tuned to meet the needs of the licensee. The most common release procedure is a three step process. First, the beneficiary submits a claim that a release condition has been met. For instance, suppose that the license agreement requires the licensor provide support 24/7. If the licensee were to submit a support email, and two weeks pass without response, then the licensor would be in breach of their license agreement and a release condition will have been met. The beneficiary would then submit this claim with the necessary and sufficient evidence to the escrow agent for review. If the escrow agent does confirm that a release condition has been met, then they will enact the agreed upon release procedure. Generally, the owner has a specified amount of time to respond to the claim or make repairs (like answer the support email). If they do not dispute the claim and do not repair the issue in the given time period, then the escrow agent will release all deposit materials to the beneficiary. However, if the owner does dispute the claim, then the escrow agreement should have a policy outlined for the resolution of this dispute. This can rely on the escrow agent to make the final decision, professional arbitration, or in a worst case scenario the parties can rely on the legal system to make a decision on the dispute. The deposit materials will not be released until the dispute has been resolved. Now you can see the problem that this could create for the beneficiary. If their claim is disputed, they could be tied up in arbitration or legal struggles for a long period of time. During this time, their software could be rendered useless and they could potentially lose any number of things including money, traffic, or reputation. For this reason many escrow agents also offer an immediate release procedure. With an immediate release clause in the escrow agreement, the beneficiary will receive the deposit materials immediately upon submission of a claim that a release condition has been met. The owner will still have the ability to dispute claims and go to some form of arbitration, but the beneficiary will be in possession of the deposit materials during the dispute resolution. If the dispute is resolved in favor of the owner, then the beneficiary would be required to return all deposit materials to the escrow agent. Further, in that situation it is customary for the beneficiary to pay for any damages and legal fees incurred due to the improper claim. Picking Up the Check One final source of contention when drafting an escrow agreement is the age old question – who pays? Of all of the issues that can come up through this process, this issue is the toughest to solve. Because it is generally the licensee that wants the escrow, it is often assumed that they will need to foot the bill. However, it could be in the best interest of the licensor to setup a source code escrow for all licensees, in which case it is only fitting that they pay the fees. This issue should be resolved during the license agreement negotiation, and possibly before an escrow agent is first contacted. While a source code escrow agreement is usually initiated by the licensee, it has benefits for both parties involved. For licensees, the benefits are fairly obvious. They are able to avoid the risk of relying on another company’s success for their own business to thrive. It also provides a system for monitoring and ensuring regular maintenance and updates. For licensors, a source code escrow agreement can alleviate concerns of potential customers without having to assume the risk of distributing source code and other proprietary materials. It can also provide some validation of ownership of technology assets and intellectual property and create an IP trail, which is outside the scope of this article but an interesting topic in its own right. So while they are not appropriate in all licensor/licensee relationships, they clearly have their place in software development and can be a very useful tool.

By: Robert Wang So you just started this whole blogging business on the side, and now streams of visitors show up at your virtual doorstep every day, demanding flash media and video content. You're feeling ready to embrace a larger audience and maybe redesign your homepage, but aren't really sure what direction to go. We've got what you need. Barefoot Solutions has picked through dozens of articles to deliver the cream of the crop for your consumption. BY FAR the MOST IMPORTANT component of a high caliber blog. You can't become a rockstar without fans. Make friends with other bloggers and win over some of their traffic: •    Link to other blogs •    Comment on their posts •    Feature guest writers Most serious bloggers check Google Analytics religiously, so they’ll know, with startling immediacy, when you interact with them in the slightest way. The nice ones will pay you a visit or ideally even link you back. From there, your glowing prose and dazzling personality will hook new traffic and grant you the worshipful readership you’ve always dreamed of. Want the nitty gritty of link building? Vandelay Design offers 9 ways to make sure you’re linking where it counts. This is how it's done: VentureBeat.com - Think your page already has enough links? VentureBeat has 944,506 incoming links from other webpages. Well, 944,507 now. The staff's amazing networking ability has no doubt played a major role in launching this page into the top 100 Technorati Blogs. The simplest explanations are usually best. Keep it a quick and fresh. If you can’t say it in a few paragraphs, save it for another article or trim the fat. Keep in mind: bullets, top 10 lists, and short blocks of text are your friends. I'm confused. Examples? DaringFireball.net - Extreme minimalist design. This page only has 2 images...and one of them is a search button. The result is amazingly clean, professional, and easy on the eyes. The more time you take to manufacturing an appealing (read: glowing, abstract, and AHDH-friendly) interface, the more likely you are to be well received. TIP I: If you use a lot of colors it will tend to make your site look cluttered. Take a little time, pick a 2-3 color theme with good contrast, and stick to it. TIP II: The best looking websites will take an idea and apply it to every last detail and aspect of their design. Always think about how adding or subtracting from your blog will impact your theme. A study conducted by Dr. Gitte Lindgaard found that it takes users 0.05 seconds to decide if they enjoy looking at your site. Not sure where your page falls on the spectrum of attractiveness? Check out WebSiteOptimization.com for examples. Emulate me: OurWorld - Winner of the Best Blog Design Weblog Award 2008. This page tactfully combines beautiful high resolution banner images with an understated low color saturation theme, sleek fonts, and hot javascript action for an amazing webpage that just sucks you in, eyes first. According to Giancarlo Gallegos from BlogCatalog, we click because we believe we have something to gain from it—whether it is knowledge, pleasure, or LOLCATS, clicking requires a clear motive. Give people a reason to click through to your blog by creating a unique spin on overblogged topics. To quote Dawn Foster: “You can talk about a news story that other people are blogging about, but spend some time writing about your experiences and ideas that offer a different perspective than the rest of the crowd. Use research in new ways, interview interesting people, and talk about your experiences. By offering something new, people are much more likely to read your blog post and link to it, which is where the real SEO magic is found.” Brush off that storyteller’s cap. Y’all got some yarn spinnin’ to do. Now this is writing: RoughType - While the layout isn't much to look at, Nicholas Carr's blog is the perfect example of a content driven blog. The homepage has a mindblowing PageRank of 7.0 - this one man has accumulated the same net authority as the COMMUNITIES of Yelp and Metacafe. Be amazed. Google Analytics and Google Webmaster are amazing for visitor tracking, sculpting page rank, and otherwise refining your blog in ways you would have never thought possible. Once you’ve mastered the skills, you’ll be able to pinpoint the “who”, “what”, “where”, “when”, and probable “why” of every last click and page-view on your blog. Did we mention you can run customized analytics and test multiple versions of your blog simultaneously? No? It’s awesome. If you’re looking for a nice springboard into the world of analytics, Google has graciously provided a quick tutorial to get you started. Hop to it! Serious Skills: SethGodin's Blog - So what's so special about Seth Godin? His blog ranks #12 on google's search for "blog". While normally ranking on page 2 is sort of unimpressive, this page trumps roughly 2.3 BILLION other search results: including the official Whitehouse and Facebook blogs as well as BLOGS.COM. HE OUTRANKED A PAGE WITH BLOG in the URL. SEO. Learn to love it.

by: Robert Wang By now you've inevitably heard of it. Every here and again, you hear mention of its function, little blips on the radar of the collective consciousness that is the Internet. And yet, despite the articles and buzz, people are don't seem to be able to pick out Google Wave from a hole in the wall. At first glance Google Wave is every marketing executive’s wildest fantasy come true. The service is exclusive, offered by media darling Google, and the description is so laden with buzzwords that it seems like a sure-fire win. Unfortunately in the process of self promotion, Google has overwhelmingly succeeded in making themselves a product that borders on impossible to describe and to some extent, comprehend. To give some sense of just how brain wrenching the project is, consider the following: Google published a tutorial video in an attempt to explain its brain child. At just a shade over an hour and 20 minutes, the video is roughly the length of your average romantic comedy. Regrettably, by the end, most viewers would still be hard pressed to summarize the service in a sentence or less. Google Wave was released under the same invite program that helped build up hype for Gmail. Currently there are roughly 100,000 users testing the service, however, new users can only register through invitations they receive from current users or Google itself. Consistent with Google’s previous policy, Wave is an open source project—meaning it will be increasingly more customizable and polished over time. So far it looks like their invitation for development has been well received. Open-sourcers are already looking to jump on the bandwagon, going so far as to bid on invitations to the service so they have a head start over their competitors. As you read, prices for Wave invites on eBay have begun to climb. The highest offering already hangs at a steep $200 per account. So why all the hype? Why are people paying hundreds of dollars for a service that’s still in its testing stage? Just what in the heck is this thing? In summation, users can invite other users to their “wave” which is a bit like a chat room in the sense that users can use it to communicate live. Users can submit, edit, and comment on content in the form of text, pictures, videos, Google maps windows, or even games. Everything is updated on a near realtime basis, thereby making collaboration and social interaction the real core function of this service. However, Wave is still much more than that. The fact that the service is open source means that its potential applications are really limitless. Provided someone takes the time to program an extension for it, Wave will allow for users to incorporate ANYTHING, and we do mean ANYTHING—even other websites, in your wave. In many ways, Google Wave is a project with such myriad functions, that it’s very difficult to pin down and categorize. This sort of thing has never been done before and because of that, it defies explanation. Whereas most services will focus on performing one function extremely well, Wave seems to do everything communication-related at once and the end result is understandably tough put into words. It is email, it is AIM, it is the wealth of information and entertainment that makes up the internet integrated into a single platform. It is everything and simultaneously nothing more than a blank canvas. Wave was developed by a group of engineers who were essentially left to their own devices for months of development time and it shows in the resulting product. There’s no clear product, only amorphous potential. Google has a real challenge ahead in marketing their new toy—and until they can figure out how to describe it in less than an hour and twenty minutes, the public will likely stay confused on the subject. Fortunately, WhirledInteractive has taken a step in the right direction, and released their own explanation of Wave. They aren't the only ones. LifeHacker recently sent out a call for the best real life applications of Wave and hundreds responded with some of the most innovative things we've seen. The Google team needs to take a page out of this book and present a marketing campaign that's as creative as their product.