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Code Ownage

What are the laws in regards to owning code when your a contract programmer?  I currently work at a place doing contract work on a project for an hourly rate, I assume that all work I do during "billable hours" is owned by the company paying me.  What about for fixed-bid contracts, though?    I do have some general java libraries that i've written in my own time, if I get a contract and use those, I still own them, correct?    Does anyone have any resources that explain the laws?  Thanks in advance.

Vince
Monday, November 24, 2003

If the code is written by an employee, the employer owns the copyright to the code.  However, if the code is written by an independent contractor, the independent contractor owns the copyright to the code (unless there's a written contract that says otherwise.) 

Some resources:
http://www.irmi.com/expert/articles/warren009.asp
http://www.freibrunlaw.com/articles/articl1.htm

This is not legal advice.  Consult with an attorney for details.

Robert Jacobson
Monday, November 24, 2003

Always have a contract that spells things like that out.

Always.

Chris Hanson
Monday, November 24, 2003

I asked my wife this once, since I used to be a consultant and found myself in situations where this was important.

The laws vary from state to state, but typicaly, unless there is a contract in place that explicitly defines ownership, the control of the "code" is held by the "seller".

This gets more complicated if, for example, you work for a company and that company is selling your code to someone else, in that case your employer might own your code.

If you are looking for solid advice and don't want to pay a regular attourney for it, I would contact a law school in your state and see if you can talk with one of the Prof's, typically there is one that is into technology law and is looking for a chance to impress you with their intelligence.

Jason J. Gullickson
Monday, November 24, 2003

I think the law goes something like this:  if you think ownage is a word you are not qualified to claim code ownership.

JT
Monday, November 24, 2003

LOL, JT. 

"The laws vary from state to state..."

Actually, this is a matter of federal law (the federal Copyright Act) so the law on this topic is uniform within the United States.  My earlier comments assumed that Vince is living in the U.S. -- the laws of other countries, obviously, may be entirely different.

Also, a law professor would never give out free legal advice because it would put him or her into a very difficult position -- if the advice seeker later claimed the advice was wrong, he could sue the professor or file ethics charges against him.  If you can't afford an attorney, it's best to do your own legal research through a resource like Nolo Press.

Robert Jacobson
Monday, November 24, 2003

Thanks for the smack-down bob.

Jason J. Gullickson
Monday, November 24, 2003

Vince, under the law as it stands, the contractor owns the copyright in the work he does for the employer, and he certainly owns any work he did previously.

However most companies that hire contractors also hire lawyers who draft the greediest possible contracts they can think of. Those contracts routinely try to get the contractor to sign over the rights in his work. Often this will also include previous work.

That is, if you use your neat library on site, to make the job faster and better, then you surrender ownership of it. Does this suck? Absolutely.

The answer is to insist on time to read the contract, including taking it away. Cross out clauses that try to steal your work, unless it's reasonable.

If you have useful work from previously, explain to the employer that it will save you time and improve the project, and they might pay you for a licence to use it.

Often though, the dynamic that's really going on is that they want you to be subservient and they do not want any additional expenses. Watch out for recruiters lying and playing silly buggers with contracts.

Get everything in writing. Don't be afraid to call their bluff. You would be surprised at how weak their positions usually are.

Contractor
Monday, November 24, 2003

So is it enforeable if they try to claim ownership of previous works?  It sounds about as enforeable as the contracts i've signed that said "all knowledge gained from work is property of .... ".  How about if the code is already owned by someone else (like a company you own)?  I've always been afraid to cross off things in a contract...I guess I always assumed they just wouldn't hire me if I did that. 

Vince
Monday, November 24, 2003

In general you retain the copyright to your earlier code, but the company might have a valid claim, depending on what the contract says.  (The contract has to be very specific about transfering the copyright.)

Without knowing the exact language of the contract, it's impossible to give accurate advice.  If you have a serious dispute here, you should talk with a lawyer.

Robert Jacobson
Monday, November 24, 2003

Vince, if you sign a contract that agrees to it, then theoretically it would be enforceable. However you could also argue that you were forced to sign the contract under duress, or weren't given enough time to examine it.

Robert Jacobsen, I have seen contracts that do indeed try to claim ownership of previous work, if it's used in the project. That would include Vince's valuable libraries.

Vince, if another company owned those libraries, you shouldn't be providing them to the employer without permission of the owning company, even if that owning company is your own company. If you do, under some contracts, you will be held liable for paying the owning company, in theory.

I had an experience like this. The employer wanted valuable libraries I was using, even through I had specifically excluded them from the contract. When I refused, the employer discussed it with the recruiter, who tried to bully me. I replied that we would take it to court, and they all backed down.

Contractor
Monday, November 24, 2003

If you are concerned that you will cause your own code to revert to your employer or client if you reuse your libraries in a billable project - then DON'T use your own code unless you make it clear to the client that you are doing so, and you also negotiate a waiver that applies to that code you brought in.

Here's the problem. If you don't say anything and you just use your code in your employer's work, then it will probably appear that you developed those libraries on their time. This may taint their rightful ownership, unless that code has been described to the client as such.

I agree that many clients and employers will not consider redlining their standard contract. What I don't agree with is that you have no choice in the matter.

After all, if you reuse your own libraries, you're not only potentially tainting the ownership of your library, but you are also cutting into your billable time to the client by bringing in free solutions.

If the client is hiring you *because* you developed these libraries and they perceive an advantage in using you for the billable work, then I would definitely hold out for contract language that states that the client is only receiving a non-exclusive license to use these libraries for specified purposes, and is not going to "own" these libraries nor claim to do so in any way.

If the client gives you a hard time about revising contract language to protect your own property, then I would call them "thieves", because they are taking that which is not theirs.

Bored Bystander
Monday, November 24, 2003

If you're getting paid by the hour, WHY WOULD YOU WANT TO USE PRE-EXISTING CODE that might save you time? Saving time is a BAD THING when you're getting paid by the hour.

People, people... Are you all on crack?

common.sense
Monday, November 24, 2003

"I have seen contracts that do indeed try to claim ownership of previous work, if it's used in the project. That would include Vince's valuable libraries."

Yes, contracts can claim transfer of the previous work. but there's a good chance that such a transfer would be unenforceable. 

Copyright law is designed to be rather protective of the rights of the original author (in this case, Vince.)  A transfer agreement has to be in writing and fairly specific (it must be an "instrument of conveyance").  The contract language may or may not satisfy this requirement.  Also, the original author may have the right to nullify the transfer.  All the more reason to check with an attorney.

http://caselaw.lp.findlaw.com/casecode/uscodes/17/chapters/2/sections/section_204.html

http://cobrands.business.findlaw.com/intellectual_property/nolo/faq/BABFA71E-97C9-479F-8A9D4C3DB2498663.html

http://cobrands.business.findlaw.com/intellectual_property/nolo/faq/BABFA71E-97C9-479F-8A9D4C3DB2498663.html

Robert Jacobson
Monday, November 24, 2003

> Are you all on crack?

No, not at the moment...

I must also admit a little skepticism about the "valuable libraries". I don't doubt for a minute that a good developer can create some personal libraries that could save him/her much time when knocking off the same problem again and again. I've done this myself, and it's a lot of fun to do.

But generally libraries of this sort are *not* directly salable, and often *other consultants* won't use them, preferring to rely on their own tools and tricks, or open source, or lots of billable hours :), so I don't wonder that the client doesn't want to pay for them. And obviously the client doesn't want any sort of legal issues, not even the hassle of dealing with any kind of licensing issues around these libraries.

There's a tendency to believe that because computer work can be fairly lucrative, even these days, that an artifact which could save you a few days of time must automatically be valuable. But unfortunately it ain't so.

What I think would be *fair* is if using your tool allowed you to bill 40 hours, but get all the work done in 10....

Portabella
Monday, November 24, 2003

I have live experience with this issue.

Was on contract, not an employee. Total contract: 1 yr, $120,000.

Used my own code libraries, which were even identified in a signed disclosure to them of preexisting IP.

Employer claimed that I had not written the code libraries in question, which contained critically valuable IP that they were hankering to patent in order to decimate their competitors.

I pointed out that disclosure which they signed acknowledged said libraries. They claimed disclosure did not specify exact method and that the library I was using was new and they had concieved of it and directed me to build it. They also pointed out that the contract was not signed by a majority of their board and thus did not represent a valid contract between myself and their corporation. (Did anyone know this could happen??)

After over 4 years of legal dispute and about $325,000 in legal expenses paid by me to hire top notch IP attorneys, court ruled in my favor -- the IP is mine.

Total amount earned for 1 year's labor, plus six months time in courts and dealing with legal issues: -$205,000.

But guess what -- you don't get your legal expenses paid by nobody in these disputes. Also during the entire thing, my IP was worthless to me because no one would touch it with a 10 ft pole. Without this dispute, I could have licensed it to others and made a good amount.

Lesson learned: do not use your own code libraries EVER in someone else's product. Reimplement everything from scratch and bill by the hour for it all, or have them license a commercial library made by somebody else and take a cut of teh transaction. That's what I do now and it works. Being considerate and saving a corporation money by using your own valuable preexisting libraries is a fools game. Only exception: licensing precompiled libraries and such with no source code. If they don't have the source code, it's very difficult for them to claim it is theirs.

Dennis Atkins
Monday, November 24, 2003

The one thing that saved me in my dispute was that I didn't ever take my source code to the employer's workplace. This meant that, when the employer decided they wanted it without paying, they to try to make me hand it over; they couldn't just steal it and tell me to get lost.

The employer and the recruiter thought threatening legal action would frighten me. I actually welcomed the prospect. As with bullies everywhere, that set them back.

Contractor
Tuesday, November 25, 2003

There is no such word as "ownage", it's ownership.

Speak and Spell
Tuesday, November 25, 2003


S&S, you are like so behind the times, dude.

--------

Ownage
pronounced "ownage" to rhyme with "storage" not as "own age".

1. Something which owns, rocks, rules, is cool. A great, hip thing.

2. Exclamation at being impressed by something cool.

3. Term used to describe a particularly satisfying state of things

1. "That new game is such ownage!"

2. "You got a car for Christmas? Ownage!"

3. "I scored last night with two chicks and today both want to see me again, this is such ownage!!"

Tony Chang
Tuesday, November 25, 2003

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