The Old Joel on Software Forum: Part 4 (of 5)

Fact: If a hirer pays a person to write a program, but fails to obtain ownership, the hirer automatically has a nonexclusive license to use the software as intended.

What rights are included in this automatic license? Can the hirer license the software to others? Can the author insist on licensing fees if the hirer licenses it to others?

Bill Shuster
Tuesday, April 13, 2004

The hirer can check with a local attorney.

Philo

Philo
Tuesday, April 13, 2004

The hirer has no right to "license" the software to others. If others like the software and wish to use it, they must negotiate with the developer.

If the software is good enough that more than company mighty use it, then the developer should refuse to sign away the copyright when arranging the initial contract. Note that customers try to obtain the copyright if they can get away with it.

JM
Tuesday, April 13, 2004

I disagree. It's all a matter of compensation. A right is something you can sell.

Lou Franco
Tuesday, April 13, 2004

JM,

What if the developer knew that the software was being developed as a product in the beginning, but never signed over ownership simply because it never came up?

Bill Shuster
Tuesday, April 13, 2004

"It doesn't matter what I know - the only thing that matters is what I can prove."

- A Few Good Men

Philo
Tuesday, April 13, 2004

Copyright Law, by Nolo Press (and/or Web & Software Development - A Legal Guide, by Nolo Press). I got these last month from Amazon per recommendations posted here and they certainly are up to date on modern settings, imo.

Joe Hendricks
Tuesday, April 13, 2004

i wonder what the chances are that a local lawyer actually knows more than what's in a good book. (having not read the nolo press book, i can only assume it's good, they have a good rep).

mb
Wednesday, April 14, 2004

Nolo books are good for some plain vanilla boilerplate documents, but when there's a contentious issue at hand, you should get an attorney.

Mind you, you should try to negotiate with the other party before taking legal action, but you really want to know your rights before going into the negotiation.

Philo

Philo
Wednesday, April 14, 2004

> What if the developer knew that the software was being developed as a product in the beginning, but never signed over ownership simply because it never came up?

Then the developer owns the copyright. The hirer does not own it unless the developer specifically signs it away. Recruiters and most companies try to include this type of clause in their contract, but they should be removed.

If you have a dispute, the best approach is to give them a letter notifying them that you own the copyright and requesting a discussion about licensing. If it's got to this stage, though, they are probably going to try to stiff you, presuming you're too small to do anything about it.

If you are at this stage, it would be worth getting a lawyer involved. Good luck.

JM
Wednesday, April 14, 2004

Come on, if someone pays you to write something, they own it unless there is a contract that says otherwise. It's called "work for hire". No, I'm not a lawer.

Get it sorted out in writing before hand it will save you a lot of trouble in the end.

pdq
Wednesday, April 14, 2004

>>It's called "work for hire".

It's called "work for hire" if you're an employee.

Contractors are called that for a reason - they're doing work under a contract. That's the document that spells out who gets what and from whom. By default, the contractor (since he was the creator) owns the copyright.

RocketJeff
Wednesday, April 14, 2004

Firstly, the law varies from country to country.

Secondly you must look at the labor regualtions and contract law as well as xopyright law.

Tne question is what was the developer hired to do? If he was hired to solve a problem or produce a program, then by solving the problem or providing the binary or source code depending on need, he has fulfilled his side of the bargan, and has the right to his code.

If the hirer wants the right to the source code he would do best to make that clear in the initial contract.

Stephen Jones
Wednesday, April 14, 2004

The common law is that copyright lays with the creator, in this case the contractor. Since he company paid for it, they have a license and may be essentially consdered co-owners. Their rights and the deveolpers rights are about the same.

A local lawyer will not help you. You need a IP lawyer with a track record who knows exactly what he is talking about. Expect to pay $600 or more per hour.

Dennis Atkins
Wednesday, April 14, 2004

<rant>

Argh! To the original poster and everyone else: if you ask a question on this forum that involves legal or regulatory issues, could you *please* indicate the legal jurisdiction you are operating/interested in. And not just the country; many rules vary based on the sub-country governmental units.

And for people responding to questions: please indicate if your response is for a jurisdiction different from the original poster.

Thank you all very much.

</rant>

Bill Tomlinson
Wednesday, April 14, 2004

You need to talk to a lawyer. You might find that patent and trademark lawyers know a lot about copyright law. You don't want to pay a lawyer to become educated on this.

This issue comes up with designers as well. As I understand it, if you have a consultant design a Web page for you, in the United States they own the copyright, unless they explicitly turn copyright over to you. I make certain when I hire consultants to state up front that I want copyright. That then becomes a factor in the negotiations.

As another example, my architect owns the copyright on the plans for my house, even though I paid her for all the work.

Dan Brown
Wednesday, April 14, 2004

I'm *not* sorry to have caused such a comotion - the funny thing is that I am just now learning about copyrights and I've been around for at least half my expected life! I've either been walking around in a fog (ha ha) , or this has been a highly guarded secret.

This question was for the USA and my source material was from NOLO. It seems that as a contractor, a programmer automatically owns the copyright, unless it is explicitly given in writing to the hirer. In some states, software can't even be classified as a work for hire so that it is protected even further.

Bill Shuster
Wednesday, April 14, 2004

Bill,

I usually simplify matters by assuming the poster is in whatever jurisdiction I happen to be in at the moment, which can vary quite a bit. Then, when my advise falls flat or gets them into trouble, I simply say, "What do you mean you don't live in Madagascar?"

Dennis Atkins
Wednesday, April 14, 2004

That was for Bill T.

Bill S,

> In some states, software can't even be classified as a work for hire so that it is protected even further.

Wow that is awesome! Do tell us which ones.

Dennis Atkins
Wednesday, April 14, 2004

Copyright law on this issue is similar in all Western countries, so it's fine to discuss it in general. Creators own the work unless they explicitly sign it over.

Corporations and recruiters absolutely hate this so they always try to include a little clause that gives them all the rights to your work. Find that clause and kill it.

You don't need an expensive lawyer for this. It's pretty straightforward and easy for suburban lawyers to look up if they need to. A suburban lawyer will spot clauses such as the one above before you sign dumb contracts.

Much more important in protecting your interests is protecting the source code. If you let the other party have your source code, they don't need to negotiate with you. In that case, you have to shell out high legal fees to take them to court, and the other party knows that.

So, don't be afraid to benefit from your own hard work.

JM
Wednesday, April 14, 2004

JM,

Thanks for your response.

You sound like a lawyer familiar with copyright laws?

Bill Shuster
Wednesday, April 14, 2004

Bill, I run my own business and have been through the mills on these issues a few times, as have most software firms. I've had to take action on occasions and thus I'm familiar with where lawyers fit into the picture.

JM
Thursday, April 15, 2004

Note: UK law is interesting in this area.

http://www.legal500.com/devs/uk/it/ukit_032.htm

Been there, done that, set the legal precendent (case one on the page).

In theory when writing for a software company (but not say a clothes shop) as a contractor there may well be an implied right of resale of the code.

Peter Ibbotson
Thursday, April 15, 2004

Interesting. Note though that in both the Lakeview and Barclays cases the developer had actually signed something assigning rights to the other party.

JM
Thursday, April 15, 2004