Monday-morning quarterbacking: How eBay might have negotiated an irrevocable license for Skype’s under-the-hood technology, while leaving ownership with the founders

The finger-pointing from Monday-morning quarterbacks is in full swing about eBay being sued for copyright infringement by the founders of Skype, who sold it to eBay for $3.1 billion a few years back.

We won’t know for awhile why eBay chose to take just a license for some of the under-the-hood technology, instead of insisting on getting outright ownership.

I can’t help but wonder again, though, whether eBay might have been able to avoid its current troubles, while leaving “ownership” of the technology in the founders. Perhaps eBay might have negotiated an option provision in the acquisition agreement, along these lines:

If we [eBay] ever elect to pay you guys an aggregate of X dollars, over and above the $3.1 billion you’re getting now — with X increasing by Y percent per year as long as it remains unpaid — then our license to use your technology will automatically become irrevocable, and we’ll be entitled to retrieve a copy of the source code from escrow.

This is all still 20-20 hindsight, of course. Still, I imagine eBay wouldn’t mind having this possibility available as an option right now.