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Programming Your Rights Online

Why Paying For Code Doesn't Mean You Own It 447

Posted by Soulskill
from the sadly-you-broke-it-you-bought-it-doesn't-work-either dept.
Barence writes "Why do people think they own code just because they've paid for it? PC Pro's Kevin Partner says many of his clients believe that by paying for the work to be done, they take ownership of it. But, put simply, code is owned by its developer even once the client has paid, unless that developer is legally employed by the client or a contract exists that transfers full ownership (and even then it's far from clear-cut). He discusses the thorny issue of making clients understand that distinction and gives advice on how developers can assert their rights."
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Why Paying For Code Doesn't Mean You Own It

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  • Evolution (Score:2, Insightful)

    by blai (1380673)

    Why do people think they own code just because they've paid for it

    yeah, I am used to paying for an item, and software happens to be an item (especially when it is delivered on a CD)

    • Re:Evolution (Score:5, Interesting)

      by goombah99 (560566) on Saturday March 06, 2010 @09:56AM (#31380736)

      Does the builder or architect own my house? No, but he might own the floor plan to my house. He might not too. it depends on what I paid for.

      • by Kjella (173770)

        At least in this case I've never heard of them getting paid if you want to tear down a wall and extend the house, despite changing the floor plan.

      • He might not even own the design, if the design was your idea (=your IP) and he just executed the structural analysis calculation to make the whole deal compatible with building codes. But yes, it can be a big issue and a matter you have to take to court. Not to mention that it will certainly depend on your country's IP laws.

    • Re:Evolution (Score:5, Informative)

      by INT_QRK (1043164) on Saturday March 06, 2010 @10:22AM (#31380866)
      Bottom line is that if you're buying COTS, then you get whatever the license says. If you're paying for development, then you get whatever you negotiate. Articulate your requirement for data rights in the RFP, carefully review the proposals for meeting your requirements, then follow-up to ensure the contract says what you need it to say.
    • Re: (Score:3, Interesting)

      by Z00L00K (682162)

      Don't forget that in the case of code there is a large amount of code that's just bread and butter. That code isn't really important in itself - it's just there, used and is probably reusable or recreatable with little effort. What is interesting is how that code is joined together.

      Then there is code that is customer specific - it's mission critical for that customer but worthless in any other situation except as a study object for educational purposes.

      A third part that sometimes appears is code that does c

  • by eldavojohn (898314) * <eldavojohnNO@SPAMgmail.com> on Saturday March 06, 2010 @09:28AM (#31380542) Journal
    Basically this guy is complaining that his customers don't read his licenses. Sounds like he needs to work with his sales representative on that.

    If I buy a bible, I don’t own the original Lindisfarne Gospels

    Yes, actually you do. At least where I live they are public domain. You might not own the particular translation or interpretation of said gospels but you do own the core concepts. All of us own them. They are a part of humanity whether it be good or bad. This is the most confusing analogy one could produce.

    if I pay a plumber to fix my tap, I don’t ask him to leave his toolbox so I can fix it myself next time;

    No, but if you bought a book on plumbing you might just fix it yourself next time. The results may vary but it's different from compiled code in that the person has no option to 'decompile' the code and go through it. You're right but the analogy has flaws. The plumber isn't producing a copyrighted work for you, he's performing a service. No goods are exchanged between you and the plumber like a software release.

    if I buy Harry Potter and the Half Blood Prince on Blu-ray, I don’t own the movie but only a copy (whose usage is restricted by the terms of the licence); if I buy Microsoft Word, I own one copy of the compiled code, not the source.

    This is it, it comes down to licensing and copyright. Why do you waste so much breath on this rant when it's a legal agreement between you and your customer that is based on commonly known and accepted copyright and licensing terms?

    I will say that with the advent of the Agile Methodology in where I work, the customer is much more involved. We meet with them every two weeks. We constantly incorporate their ideas into their site or program through our own code. And at the end it's a mixture of ideas but we're still the ones that coded it. Between you and I, I'd love to give them the code. But that's the decision of the guy who runs my company, not mine. If you have switched from the previous models of "wait a long time and big bang release" to "constant customer input" then you may now be experiencing something natural--the customer feels they own the code. Because they were with you every step of the way from infantile code to adult production code. Just keep that in mind.

    • Re: (Score:3, Informative)

      by Dachannien (617929)

      if I buy Harry Potter and the Half Blood Prince on Blu-ray, I don't own the movie but only a copy (whose usage is restricted by the terms of the licence)

      That's not even true. You own the copy, but your permitted usage is restricted only by law and can be expanded by the copyright holder through the forfeiture of some of the exclusive rights conveyed by copyright. This is at least partly because licenses are generally not a precondition for the purchase of a copy of a movie/song/etc.

    • Re: (Score:2, Insightful)

      by westlake (615356)

      If I buy a bible, I don't own the original Lindisfarne Gospels
      Yes, actually you do. At least where I live they are public domain. You might not own the particular translation or interpretation of said gospels but you do own the core concepts.

      However, if you try leaving the British Library with the eighth century manuscript in your cart, you are going to meet with some resistance.

      Neither will it be trivially easy to get permission to read or scan the Gospels.

      Public domain does not translate into uncondition

    • by nschubach (922175)

      if I pay a plumber to fix my tap, I don’t ask him to leave his toolbox so I can fix it myself next time;

      No, but if you bought a book on plumbing you might just fix it yourself next time. The results may vary but it's different from compiled code in that the person has no option to 'decompile' the code and go through it. You're right but the analogy has flaws. The plumber isn't producing a copyrighted work for you, he's performing a service. No goods are exchanged between you and the plumber like a software release.

      I think a better counter argument to that is that I as a customer am not asking the developer for his computer and compilation software... just my copy of the code he wrote that I can do with whatever way I want, except maybe plagiarizing it and calling it mine.

    • The guy's an asshole (Score:3, Informative)

      by tomhudson (43916)

      Where I control the server I leave these uncompiled, but if I'm transferring them to the client's server I will compile or obfuscate their code so that it still works but is uneditable. Unfortunately, this whole area can become very difficult to handle with some clients.

      In other words, he wants to lock them in to using only HI to extend the application. There is no reason he can't deliver it completely unobfuscated, yet still protected by copyright. Explain to them that they have a license to use it, that

  • Why do people think they own code just because they've paid for it?

    Because they assume they are paying you for a product, not paying you because they like giving away money.

    • Re:Because.. (Score:5, Informative)

      by nodwick (716348) on Saturday March 06, 2010 @09:46AM (#31380652)

      Other posters have already said that legally it all depends on the license you work out with the customer, and they are correct.

      Having said that, I find that the customer's expectations will depend on what the financing model for the product was. Typically when you get paid for software, it will have been developed under one of two models:

      • My company does the product development on with its own money, and then sells the finished product to multiple customers. Examples are products like Microsoft Office or Adobe CS4. Typically customers assume that they're paying for just a license of the product, since they weren't involved in the actual creation of the code itself at all.
      • The customer has a specific need it needs to address, and hires and pays my company to develop software to address it. Most of the consultant arms of major software vendors operate this way; for example, OPNET (which makes a product called Modeler popularly used in simulating communication networks) develops some protocol models for Modeler this way. As the customer is directly involved in directly funding the development (often billing will involve paying for actual developer-hours, and is typically much more expensive than licensing an existing product), they'll usually expect to get the rights to the code as well.

      If you're using one of the above approaches but want your licensing to work differently, the key is to make this clear to the customer up-front (managing expectations isn't something techies typically enjoy spending time doing, but it's a very important part of having a successful business relationship with your customer) and make sure all your legal wording is done correctly as well. I've worked at companies before where product development was funded by customers, but the need the customer wanted addressed was sufficiently general that the company wanted to retain the copyright and IP to resell to others. In this case, the customer was granted cheap or free perpetual licenses to use the software that was developed, but the contract was written so that the company retained the copyright and the right to sell licenses to others as well.

      • Re: (Score:3, Insightful)

        by Totenglocke (1291680)

        Other posters have already said that legally it all depends on the license you work out with the customer, and they are correct.

        Which is why we need to eliminate licensing and have two modes for work - either you work for someone else and they own what you produce or you work for yourself and others can come to you and buy copies from you. Then it's very simple and there's no needing to read 5,000 lines of legalese bullshit in order to try to find out who owns what.

        As for the guy at hand being contracted to produce code, sorry, but if they come to him saying "Write X for us", then they own it because they paid for all of the develo

  • by OzPeter (195038)

    I subcontract to a company and on Monday morning I'm going to walk right in (actually send an email) and tell them that all that code I have developed for them over the last several years is actually mine and that if they want the source code then they need to pay me a $$$ more money.

    I'll try to remember to keep my head high when I am kicked out of my home and am sitting starving on the side of the road!

    In theory, practice is the same as theory. In practice, it differs.

  • Contract (Score:5, Insightful)

    by nurb432 (527695) on Saturday March 06, 2010 @09:30AM (#31380564) Homepage Journal

    Write a good contract and the issue is moot, for both parties.

    • That's a nice thought. Unfortunately, it tends to break down in court and in business: a "good contract" may have loopholes you didn't think of, or may have been very clear but your client or partner chooses to violate it anyway, leaving you with the difficult task of suing them in order to assert your ownership. It's certainly happened with software I dealt with: for an outstanding example of such misbehavior, look into the history of SCO and the UNIX SysV copyrights, or for a truly talented individual's a

      • Re:Contract (Score:5, Informative)

        by Pharmboy (216950) on Saturday March 06, 2010 @11:47AM (#31381356) Journal

        a "good contract" may have loopholes you didn't think of

        Then it isn't a good contract, is it? In the case of SCO and Novell, their problem was physically losing a lot of the original paperwork, and a bad contract with more legalize than plain English. Most contracts I have seen aren't good contract and suffer the same problem.

  • Incorrect (Score:5, Insightful)

    by mnslinky (1105103) * on Saturday March 06, 2010 @09:31AM (#31380568) Homepage

    If someone pays you to perform work, they own all rights to that work. When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints. I consider that a form of double jeopardy where I'm being forced to pay for something twice.

    Software is no different. If you're being paid to perform a specific work, it's no different than if the person/organization paying you did the work themselves. You can't have both.

    • "If someone pays you to perform work, they own all rights to that work."
      Fine assertion...

      "When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints."
      Which you immediately point out doesn't seem to hold true in reality.

      Would it have killed you to use 'should' or some other qualifier? Stating opinion as fact is lame eno
    • Re:Incorrect (Score:4, Informative)

      by lordsid (629982) on Saturday March 06, 2010 @09:49AM (#31380678)

      The only thing correct about your post is the title.

      As a programmer I own all the of the code I write until I sign away that right. It is my companies fault that they did not require me to sign a contract giving up those rights. In fact I brought the issue up to them they still haven't done anything about it.

      Try asking your dentist some time if you can have the x-rays they take of your teeth.

      • Re: (Score:3, Informative)

        by mnslinky (1105103) *

        Funny, I *do* keep copies of X-rays and even was given a copy of viewing software and the images from some MRIs. No hassle whatsoever. If you're employed, you don't own the rights to the work you do for the company, unless *they give it to you*. Try it in court and you'll find your unsuccessful.

      • by bsDaemon (87307)
        The dentist would probably give them to me if I asked. Are you sure that's the same thing?
      • Re:Incorrect (Score:5, Informative)

        by Entrope (68843) on Saturday March 06, 2010 @10:00AM (#31380762) Homepage

        As a matter of US law, you are wrong. Copyright in a work for hire resides with the employer (or whomever the work was made for). See Circular 9 of the US Copyright Office. If an entire program is being developed as a contract piece, it *might* not qualify as a work for hire, but contracted software components and anything a normal employee writes within the scope of his employment are works for hire, and the people writing the checks own those works.

        I don't know about the corresponding laws in other countries, but if you work in the US, you are woefully misinformed.

        • Re:Incorrect (Score:5, Interesting)

          by snowgirl (978879) on Saturday March 06, 2010 @12:09PM (#31381504) Journal

          As a matter of US law, you are wrong. Copyright in a work for hire resides with the employer (or whomever the work was made for). See Circular 9 of the US Copyright Office. If an entire program is being developed as a contract piece, it *might* not qualify as a work for hire, but contracted software components and anything a normal employee writes within the scope of his employment are works for hire, and the people writing the checks own those works.

          I don't know about the corresponding laws in other countries, but if you work in the US, you are woefully misinformed.

          You are woefully misinformed as well. Work for Hire in the USA must satisfy certain requirements. The simplest is being an employee. If you are a contractor, then in so far as computer programming there is NO WAY FOR THE WORK TO BE A WORK FOR HIRE... even if your contract says it is.

          For computer programming, one's contract must explicitly include terms for the transfer of copyrights, otherwise the programmer will retain all copyrights, regardless of if he were being paid by someone else to do the work.

          Oddly enough, even with a transfer of copyrights, the author recovers the copyrights after 35 years... and this right is inalienable.

          • Re:Incorrect (Score:4, Informative)

            by mr_matticus (928346) on Saturday March 06, 2010 @02:55PM (#31382824)

            You are woefully misinformed as well.

            GP broadly misstates the work for hire doctrine, but so do you--just in the opposite direction.

            If you are a contractor, then in so far as computer programming there is NO WAY FOR THE WORK TO BE A WORK FOR HIRE... even if your contract says it is.

            Not so. Written agreement by both parties in a valid contract can establish the work as a work for hire copyright so long as it is commissioned for a collective work. 17 USC 101.

            If your customer provides a copyrightable data set or is integrating your software product with any other copyrightable work, they have a collective work claim, and coupled with contract language stating that it is a work for hire, it will usually be so.

            For computer programming, one's contract must explicitly include terms for the transfer of copyrights, otherwise the programmer will retain all copyrights

            This is true, if the programmer is an independent entity and is contracting for work with a third party. Stating that you are an independent contractor does not make it so, however, as many "contractors" are in fact employees for the purposes of the Copyright Act.

            In order to be considered an independent contractor for copyright (and agency purposes in general), you must demonstrate that the putative employer does not maintain any substantial control over the work or over the programmer, and that the programmer's does not comport himself in a manner that would lead others to believe he was an agent of the employer. In modern programming relationships, this has grown increasingly difficult, given the increased input and meetings with the customer, along with their increased executive authority over project direction.

            Assuming you did accept a simple commission and are deemed not an employee-agent, the product will not be considered a work for hire only if it is not part of a collective work. The collective work need not be entirely software to qualify, so programmers are rarely off the hook on that basis alone. The parties in this case must agree that the product is a work for hire, as required to fulfill the definition of 17 USC 101 under paragraph 2 of the "work for hire" definition.

            What this means in practice is that all contracts should specify, in the positive or negative, the work for hire status to minimize disputes later on. Good attorneys can move the work for hire line a fair distance both ways because the concept of agency is fairly nebulous and the degree of customer control exercised necessary can vary wildly from case to case.

            If the customer explicitly agreed that it was not a work for hire, particularly a sophisticated customer, it probably won't be found one later. If the contract explicitly states that it is a work for hire, it is a virtual certainty that federal judges will make it so by the end of the trial, and usually will do so without so much as breaking a sweat.

      • by sosume (680416)

        > As a programmer I own all the of the code I write until I sign away that right

        That is like an accountant claiming ownership to the ledger. He wrote all the lines after all, didn't he? Or a builder claiming ownership of the form of your house. Even worse, what about McDonalds claiming ownershipo of your body?? They choose which ingredients to provide you with, after all.

        • by hitmark (640295)

          iirc, the designer can claim copyright on the design of the house, but the specific implementation is the owners.

    • What this really comes down to is the business model - how you intend to make a profit from your work. If a programmer's business model dictates that he owns the underlying code (and can use bits and pieces to accelerate development of future projects), he will price his work accordingly. If his business model dictates that the customer owns everything, we will price his work based on that model.

      Problems tend to arise when customers expect the benefits of the programmer-owns-the-code model (shorter dev
    • by Kjella (173770)

      If someone pays you to perform work, they own all rights to that work. When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints.

      Part of it is of course that they expect the same total pay, don't expect to cut them off from the additional income and expect the base pay to remain the same. But I think the other part is that they start thinking of what a similar commercial work for hire would cost. The type where you get model releases and can use them in commercial promotions, magazines, websites and so on both in original and any form of derivate and sublicense those rights to others, which is quite pricy. Maybe they're thinking you

      • by hitmark (640295)

        that kind of thinking is what i take as proof that the concept of copyright have mutated into some kind of mental brier patch.

        its like one would have to go around asking each and every craftsman working on a building if its ok to sell it before its put on the market.

    • Re:Incorrect (Score:5, Informative)

      by 15Bit (940730) on Saturday March 06, 2010 @10:25AM (#31380888)
      Wedding photography has a very well established business plan where the base fee covers the basic costs of the photographer, and the prints supply the profit. You are not paying twice for the same thing - the real cost has simply been split up in a way which is convenient to both the photographer and the customer. As it is not exactly an uncompetitive industry, and you don't see many wedding photogs turning up in Porsches, i'd say the pricing and model were pretty fair.

      The reasons for the model relate to the photographer having control over his/her reputation, not to screwing the customer - when photos were still taken on film, the quality of the final print had as much to do with the printing process as the actual taking of the picture. Retaining control over that was important to the reputation of the photographer - if he actually handed you a stack of negatives and let you have them printed by any old mail order company, the lousy final prints would impact his reputation. You *could* argue it is an outdated model now, with the rise of electronic media, but most couples still want prints, and the same problem actually still remains - giving out jpg's and letting people print at home or from a cheap online outlet is going to result in exactly the same quality/reputation problem as in the film days.

      The industry is adapting to modern times though, so you will now find some wedding photogs will include a DVD of low resolution images for you to put on the web (and many will host a web presence for you as part of the package). But any you find who are willing to give you full size images and reproduction rights for anything less than a big pile of money are probably not the quality of photographer you want covering your wedding anyway.
      • Re:Incorrect (Score:4, Interesting)

        by roman_mir (125474) on Saturday March 06, 2010 @02:14PM (#31382396) Homepage Journal

        Yes, the US has a screwed up view of who the copyright to photographs, engravings, portraits belong when those items are ordered for hire.

        Canadian law makes so much more sense in this particular case:

        Ownership of copyright [justice.gc.ca]
        13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.

        Engraving, photograph or portrait

        (2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

        If I order someone to take my pictures, for any reason at all, and I pay them, I own the copyright to those pictures, and it is correct, I want to own the copyright to them, those are my pictures, I ordered them and all I want is service of taking them.

        I had a case where I had a very unpleasant experience with a company in Ontario, they tried to get me to sign away my rights by stating in the original contract, that I will not be able to get the original files unless I sign some other document later on, which they did not even present to me at the moment of signing the original contract. Obviously this is an illegal move, you can't bind me by a contract, which contains a clause, that says I will be bound by another contract later on, without showing the details of that other contract to me before I sign everything. They made this mistake, I got the originals and the copyrights and I will never deal with them again. There are some slimy people out there.

    • Re: (Score:2, Insightful)

      by noidentity (188756)

      If someone pays you to perform work, they own all rights to that work. When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints. I consider that a form of double jeopardy where I'm being forced to pay for something twice.

      Agreed! I've had the same thing happen in the grocery store even. I hand the guy a five, and he sa

    • Explanations! (Score:5, Insightful)

      by mcrbids (148650) on Saturday March 06, 2010 @11:22AM (#31381206) Journal

      I've done a significant amount of contract work over the years, "flying solo" so to speak. I've only once had a contention about copyrights, and since then, I've never done work where I don't own what I write!

      My explanation goes something like this:

      I have years of experience and have developed a standard set of tools that I use to solve different types of problems. I intend to use these tools to cut costs for you, and it's that time savings that makes me worth the money that I'm charging - I'll do a good job in a short time. But I'm writing the software for YOU, not for somebody else, and if I develop a new idea working on your code, I intend to use that same tool elsewhere. So I'll keep the copyrights, leaving me free to do my job elsewhere, and grant you a license letting you use the software as you see fit. You can do what you want to do, I can do what I want to do, and we can both be happy! I will grant you unlimited use license, including access to the sources, and I will make it transferrable - if you sell the business, it's no problem. The only right I won't grant is the right the resell the software, because I don't want to compete with myself!

      This has never been a problem - when explained this way, nobody objects and everybody sees what I'm after.

    • Re: (Score:3, Informative)

      by snowgirl (978879)

      If someone pays you to perform work, they own all rights to that work.

      This is your opinion, and your clear intent and desire when you are soliciting work. It is not however legal fact.

      When I was married, we had a difficult time finding a photographer that agreed, and simply didn't do business with those that wanted to be paid for their work, and wanted to keep all rights to said photos for use in promotions and fees for reprints.

      It's difficult to find a photographer that agrees, because its a false legal assumption. Your actions however are the proper way to deal with the situation... refuse to hire anyone to do the work, who refuse to transfer the copyrights.

      I consider that a form of double jeopardy where I'm being forced to pay for something twice.

      You're misusing the term "double jeopardy". Double jeopardy only applies to criminal punishment. This requirement to "pay for something twice" is also not some

  • by CAOgdin (984672) on Saturday March 06, 2010 @09:32AM (#31380570)
    There's a practical presumption in law that if you pay for something and it is delivered, you own it. You have to have it in writing if you don't want to work that way. That, for instance, is why we have those obnoxious (and legally tenouous) "shrink-wrap" licenses. Because "licensing" is not the same as "owning." If licensing were the normal case in common law, you wouldn't need a "licensing" agreement.
    • by sunking2 (521698)
      The question becomes exactly what is the deliverable. Sometimes it's defined as the executable/program, sometimes the source, sometimes both. Which it is is defined in the statement of work/contract. I think if its not clear exactly what you are supposed to be working to then it's a pretty good assumption that whatever you did while you were on the clock is theirs because in reality they are buying your time, not a product.
    • Re: (Score:3, Insightful)

      by Just Brew It! (636086)
      A lot of you are missing one of the main points of the article, namely that there is typically a lot of pre-existing library code which gets used even when the application being developed is a one-off. While the client arguably has full rights to the custom part of the application, it is not sensible to transfer ownership of the generic library code.
      • by iamwahoo2 (594922)
        In my opinion, the use of existing libraries is one of the most interesting and contentious issues, especially when the customer negotiates for more than typical data rights.

        For example, In a development effort contract the US Gov typically expects unlimited data rights or government purpose rights. When multiple contractors bid on a contract, the Gov has no insight into whom is planning to use existing libraries or 3rd party libraries. Obviously the contractor who can leverage off of existing software is g

  • by Templar (14386) on Saturday March 06, 2010 @09:32AM (#31380572) Homepage

    It depends upon your local laws and your contract. In the U.S., the default laws tend to vary by state. The last time I checked with my attorney, he told me that here in NY, all work is considered to be work-for-hire unless specified in writing. This means that the source code is automatically the property of the client, unless I get a contract stating otherwise. Which I do sometimes, but not that often.

    Things get stickier if you use other people's libraries or even open source software within your project.

    I've found that it's easiest to avoid problems if you simply discuss it with your client beforehand, and be as transparent as possible in your methods and expectations.

    • by DRJlaw (946416)

      It depends upon your local laws and your contract. In the U.S., the default laws tend to vary by state. The last time I checked with my attorney, he told me that here in NY, all work is considered to be work-for-hire unless specified in writing. This means that the source code is automatically the property of the client, unless I get a contract stating otherwise. Which I do sometimes, but not that often.

      Your attorney is wrong. The U.S. Congress defined what is and what is not a work for hire in 17 USC 101 [copyright.gov].

      • Re: (Score:3, Interesting)

        by CharlieG (34950)

        " If you are an independent contractor, you own the copyright in the absence of a written agreement to transfer the copyright. Period "

        Yes and NO - if you are hired on as a "contract employee" (aka a 3 month term kinda job) you fall under either part1, or if working as a team, the collective work part of part 2

        If you are hired to produce a piece of work "I need you to write a program that does X" - then you DO own copyright, but anyone who does that without a contract, and where it does not explicitly trans

  • by Mabbo (1337229)
    Let's say I buy the software, the end product. It's bits. It's ones and zeros. Do I own them? Am I allowed to tamper with them? It isn't the source code, and I lay no claim to owning that. But do I have a right to be able to manipulate the bits as I see fit? Can I share the bits? These are the truly thorny questions, and they're the ones that are changing our society.
  • by WrongSizeGlass (838941) on Saturday March 06, 2010 @09:35AM (#31380586)
    I've had clients who think that they own the code simply because they paid for a website that uses one of our libraries. They buy the right to use the code.

    When you buy software in a store or online you don't own the source code. Open source software may provide its source along with the executables but that doesn't mean you own it either.

    When doing custom work we offer the client the option of full ownership at full price or 'shared' ownership for a reduced fee. With 'shared' ownership they can modify it at will but aren't allowed to ever resell it. We can't sell it to anyone who would be considered a competitor. I've yet to have someone opt for the full price/full ownership option.
    • When you by software in a store, it comes with a license agreement that lays out what you're getting and what you're not. It sounds like the article's author has his own personal understanding and is assuming that his client is going to pick that up from him telepathically.
  • Depends (Score:3, Informative)

    by pz (113803) on Saturday March 06, 2010 @09:38AM (#31380602) Journal

    IANAL, but I have researched this subject for my own work-product. The ownership of work produced on contract depends highly on the terms of the contract but nominally is considered work for hire, and, therefore, belongs to the client. If the contract does not stipulate otherwise, then the client owns the work-product.

    Now, if the work-product consists of delivered source code, then the client owns the source code. If the work-product consists of delivered compiled code, then the client owns the compiled code.

    Again, IANAL, but my research into this question boils down to something just that simple. The important conclusion is: if you desire a specific disposition of your work-product (like you retain ownership, or retain the ability to sell the same work-product to someone else, or retain the ability to modify it, or release it as open-source, etc.), you should put that in your contracts.

    • The ownership of work produced on contract depends highly on the terms of the contract but nominally is considered work for hire...

      Not it is not! The term "work made for hire" is a legal term defined explicitly and exclusively in federal copyright law. If the work produced on contract does not fit the categories described by that law, then it is not a work made for hire under the law.

  • Someone pays me to take photos & thinks they can make their own prints. But they don't own the photos. I do. Then they get all cranky when they go to Walgreens with the crappy 800 pixel (long side) image I gave them for web use & wonder why one of two things happens:
    1) their 4x6 print looks like crap
    2) the store manager won't print watermarked photos without a signed release from the photographer

    I copyright law f'd up in this world right now? Certainly! But right now this is how it is. I do remain o

    • by ProppaT (557551)

      IMO, this is a slightly different scenario. You're basically selling a license per photograph. If they want to buy the picture, they have to buy it from you. This is like selling multiple seats of a piece of software. From what I got out of the article, this would be more along the lines of buying 10 copyrighted photos from you and drawing mustaches on them at home. Then again, it's early and my attention span isn't quite there yet.

    • Depends, they should be able to contract either way, no issue there. Either pay for a copy of the photos. Or pay for the full rights if they don't want you using them.
    • there are different levels to your product

      1 you buy the time and the prints ( X 4/6 y 8/10 ect)
      2 you also buy "retouching"
      3 you also buy the negatives
      4 you also buy the certification that that was the only copy of said negative

      each level gets more expensive (if offered at all)

      same deal with software

  • Slippery slopes... (Score:5, Interesting)

    by ProppaT (557551) on Saturday March 06, 2010 @09:40AM (#31380620) Homepage

    This is a weird and slippery slope. I don't think that anybody feels that because they buy software they own rights to the source code, to edit code and distribute it, etc. But they do own the rights to use or utilize the software as they see fit within the confines of common copyright laws.

    The author uses the example that you can buy a book or movie, but you don't own the rights to that book or movie. And that's fine, I think we'll all agree to that. However, if I buy a replication of a piece of art, a book, etc., I'm allowed to vandalize/defile it in any nature I wish as long as its for personal use and it is not distributed.

    I'm not sure that I like the slippery slope that a lot of developers are trying to tread these days. Notice my use of the words "use" and "utilize." These are two very different words in the English language. Use means, well, to use something. Utilize means to use something for a purpose in which it wasn't originally intended. I can go to the hardware store and buy thousands of different tools and items for home repairs and various other projects. Many times I'll buy patented items because they almost meet my uses. I modify and "utilize" them for the specific task at hand. And this is fine, as you don't see me on the street corner trying to sell modified black and decker pecker wreckers at a markup. I think think that 1) that would infringe patents, 2) that would infringe registered trademarks and patents, and 3) I'd probably go to jail for trying to sell "pecker wreckers."

    In the end, I have a product that meets my requirements and the vendor makes money off of my purchase. Everyone is happy, right? I think that this is the hurdle that software developers have to get over. As long as people buy your software, that's all you should care about. Let them modify it to their hearts content as long as they're not selling it for profit. In fact, possibly learn a lesson and integrate some of these features in your next version to appeal to a larger market. I think this is mutually beneficial in the long run. EULA are trash and need to go away.

    • by bondsbw (888959)

      I modify and "utilize" them for the specific task at hand. And this is fine, as you don't see me on the street corner trying to sell modified black and decker pecker wreckers at a markup. I think think that 1) that would infringe patents

      I don't think so (but IANAL, etc.). Say I buy a DVD drive from Toshiba for $50, full of patented stuff. Then I put it in a computer case, add a motherboard, hard drive, etc. I sell the computer for $500. Toshiba cannot claim patent protection... I paid for the DVD drive and everything in it. Essentially, I fulfilled any royalty by purchasing the product. In fact, they cannot claim trademark protection either, so long as the only thing with their trademark is the DVD drive and any manuals it came with,

  • by Fantastic Lad (198284) on Saturday March 06, 2010 @09:44AM (#31380640)

    You might ask why I didn't make a contract with this client in the first place. It's because I've found, over the years, that insisting on a contract before development starts will result either in a delayed start or even a project being shelved.

    Not having a contract in place before you start does speed things up, but it's kind of like running a heavy industries company without insurance.

    Why not have two general contracts drawn up in advance; one which points out that the client gets what is essentially first publishing rights, or whatever comes closest to emulating the copyright system, and another where you sell the code outright. Explain the difference up front and then pull out the pen. "Option A is cheap, but I can sell the same code to other clients and you can't change it, and Option B will cost you several orders of magnitude more, but it's all yours forever and you can do whatever you want with it. This is standard copyright practice. We can start work as soon as you sign!"

    People like clear options and little check boxes, and this would avoid weeks of legal dickering. Yes, you may lose some work in the short term because people realize that you're not selling what they actually want for the price they can afford, but this way is more honest and your headaches will be fewer.

    Just my opinion.

    -FL

    • by gnieboer (1272482)

      Absolutely! Not having a contract at all is asking for trouble. In my first free-lance, I couldn't afford a lawyer, but I still wrote up a basic contract that covered who 'owned' what. Maybe it could have been chopped down in court in the event of a lawsuit, but the point of the contract was to AVOID lawsuits by ensuring our understanding of the terms of work was at least close to the same.
      While a number of the possible variations have been discussed, in my opinion here's the basic questions the contract

  • by CajunArson (465943) on Saturday March 06, 2010 @09:45AM (#31380644) Journal

    IAAL, but the issues here are complex so this is NOT advice for any particular person in any particular situation:
    If what you are interested in is owning a copyright to source code there are two ways for a "customer" to get the copyright:
    1. If the software is a work made for hire. "Work for hire" is a legal definition (see 17 U.S.C. 101), with two different paths. The first path is for the software to be written by an employee within the scope of employment of the organization claiming copyright. Employee specifically does NOT mean an independent contractor, and code written by a contractor is NOT a work for hire! The definition of an employee goes into all sorts of common-law factors a court will look at, but the shorthand is the tax status of an employee with the IRS.... merely calling a contractor an employee is not enough. Also, the work has to be made within the normal scope of employment, so no, the employer cannot claim copyright as a work for hire for something the employee did outside of work. In fact, even if the employee works for the organization as a regular employee, if writing code is not within the normal scope of employment it still might not be a work for hire (up to the courts to decide if things go south). While some works for hire can be done by an independent contractors along with a specific written agreement, software code generally does not fall into any of the specifically enumerated categories where these written agreements work (see 17 U.S.C. 101 for more details).
    Interesting: Technically, code written for a big company like MS or IBM by the armies of independent contractors are NOT works made for hire. See point 2 for how the companies can still get rights.

    2. Assignment of Copyright: This is much more common for any work not directly made by an employee. There is a written agreement assigning ownership of the copyright to the contracting organization. The usual rules of contract law cover what is and is not within the scope of the assignment. Assignments can be non-exclusive (we can do what we want with the code, but the developer is also free to do what he wants), or more commonly, exclusive (the assignee getting rights to the code has full control, the original developer loses his rights to that specific work). So is there any difference from a work made for hire? YES! In a work made for hire, the organization OWNS the copyright for the entire length of the copyright term. However, in an assignment, Copyright law specifically splits the copyright term into two parts. An assignment made when the work is created transfers rights to the assignee (usually the company) for about 1/2 the term (the time varies depending upon whether the author dies and some other factors, but it is usually a long time > 30 years). The copyright automatically reverts back to the original author, and the assignment agreement cannot override this rule. The law is written this way to give the authors a "second bite at the apple" in case a work they assign away for peanuts becomes very valuable later. The author can extend the copyright to the second half of its term by paying a nominal fee, and can then go out and the assignee loses all previously held rights.

    The upshot for the software industry: Any assigned copyrights will eventually revert to the authors. Now, by the time the reversion occurs most software will be long out of date, but as we all know there is plenty of software out there that lingers for a LONG time, and non-employees DO get there rights to the underlying code back.

    One other point: Binary code gets a separate copyright from the underyling source code. But binary code is a derivative work of the underyling source code, so even if the developer never compiles code he writes, the binary distribution using that code would violate the copyright of the original code if ther

    • by Kjella (173770)

      However, in an assignment, Copyright law specifically splits the copyright term into two parts. An assignment made when the work is created transfers rights to the assignee (usually the company) for about 1/2 the term (the time varies depending upon whether the author dies and some other factors, but it is usually a long time > 30 years). The copyright automatically reverts back to the original author, and the assignment agreement cannot override this rule. The law is written this way to give the authors a "second bite at the apple" in case a work they assign away for peanuts becomes very valuable later.

      Other issues with both works for hire and assignments can include copyright rules in different countries (everything above is US law), although international treaties harmonize the law somewhat. An assignment of copyright in one jurisdiction might not be valid in another, so the assignee might not have exclusive rights globally without the correct agreements.

      In particular I think this termination at half-term is very US specific, I have at least not seen anything like it in european copyright laws...

  • Work For Hire (Score:5, Informative)

    by nato10 (600871) on Saturday March 06, 2010 @09:46AM (#31380650)
    It's pretty simple. If you are an employee, your employer owns your code. If you are a contractor you own your code unless your contract or agreement states that the work is a "work for hire" (or uses equivalent language). Requisite Wikipedia [wikipedia.org] reference.
  • by michaelmalak (91262) <michael@michaelmalak.com> on Saturday March 06, 2010 @09:46AM (#31380654) Homepage
    Back before Linux was popular, source code licenses were common and understood. Especially common for software development libraries, you could pay one price for the binaries, or a higher price for both binaries and source, but it no case was it ever understood that the product was not proprietary.

    Then Linux came along and somehow "closed source" became a synonym for "proprietary", and "open source" a synonym for "free" (gratis). Microsoft feeds into this by not releasing the source code to Windows. Windows would be an even stronger (proprietary) product, IMO, if the source code were available.

    Lawrence Lessig tried to rectify this false dichotomy by founding the Creative Commons. But the public has little knowledge of the existence of the Creative Commons, let alone the particulars of any of the licenses it offers.

    The Linux community shares some of the blame by touting libre, gratis, and "open source" in the same breath. This lawsuit is a consequence of that.

    • by Ironchew (1069966)

      Back before Linux was popular, source code licenses were common and understood...Then Linux came along...

      Bullshit. Large corporations with armies of lawyers are now suddenly confused about copyright law because a loose collaboration of idealists decided to subvert them? The consumer software industry has always been trying to dictate what people can and can't do with their computers, and the hardware industry has been on the DRM bandwagon for quite some time, all to get a little more short-term profit. If they're confused about anything, it's because they painted themselves into a legislative corner. Wasn'

    • Oh, dear. You apparently weren't involved in licenses that far back. I'm afraid you need a small history lesson here.

      Different software developers, and companies, had profoundly different policies. It was when UNIX license owners, who'd previously been very open, changed _policy_ and started locking up their source code from external developers that people like Richard M. Stallman, and especially Richard M. Stallman, got fed up with having to reverse engineer things in order to fix them. He and people like

  • Work for Hire (Score:2, Insightful)

    by zysus (123604)

    I deal with this frequently with sub-contractors (and firms) doing development.

    It's actually very simple.
    The understanding starts out as: This is a work-for-hire. All work product is property of the company.

    Which eventually leads to a contract containing:
    All source-code, build scripts, documentation, keys, any other materials required to use or reproduce the deliverable item are exclusive property and proprietary information of the company.
    The contractor shall not release, reuse or redistribute any componen

  • by Cheburator-2 (260358) on Saturday March 06, 2010 @09:50AM (#31380690)

    First of all, client expects to be able to use and MODIFY code you've done for them, both physically and legally. Who owns the code - is the second question. They don't want to own your library - they just want THE LICENSE allowing them to see, modify and use that modified code. It is the same thing as open source, except that they don't get the right to redistribute your library.

    Don't be a dick, just give them that license.

  • In the article, he states "One problem is that if you’re working in an interpreted language such as PHP then your code isn’t compiled, so in practice your client does receive source code and can do what they like to it, even though they have no legal right to."

    It's your responsibility to elucidate what's accceptible and what's not. Moreover, if someone updates your code to fix say a spelling error, then that's not copyright infringenment, it's just updating.

  • Hypocrites (Score:2, Insightful)

    by JDevers (83155)

    It is funny watching everyone on here discuss how ignorant all their users are for thinking they own the code simply for paying for it...and later today there will be a post discussing the RIAA and why they are an evil organization for trying to force their users who purchased their works to recognize that they don't now own that music.

  • Whaaaaaaaat? (Score:5, Insightful)

    by Ransak (548582) on Saturday March 06, 2010 @09:55AM (#31380728) Homepage Journal
    FTA:

    "if I pay a plumber to fix my tap, I don’t ask him to leave his toolbox so I can fix it myself next time"

    "You might ask why I didn’t make a contract with this client in the first place. It’s because I’ve found, over the years, that insisting on a contract before development starts will result either in a delayed start or even a project being shelved."

    So, this developer doesn't disclose this to customers who aren't aware that they are screwed when the developer walks away? His tortured analogy of the plumber and his tools is only correct if the plumber is installing pipes, valves, etc. that are 100% proprietary to the plumber and can't be purchased anywhere else. The word slimy leaps to mind for his business ethics (and plumbing in general).

  • by Anonymous Coward

    In California, at least, there's also some tricky sales tax issues to be aware of. If you hand that client a CD-ROM with the product, for them to keep, of your $100K worth of toil, you have made "a transfer of tangible personal property", and sales tax is due on the whole $100K. On the other hand, if you FTP it to their machine, it's just non-taxable services. Or, if they provide you with a blank CD-ROM and you burn your software onto it as a service.

    This is why architects retain ownership of the drawing

    • by fnj (64210)

      Bullshit. You just itemize the bill:
      CD-ROM $0.05
      Copying service $0.95
      Labor $999,999.00

  • Failing to have a clear contract, means that the one buying, may not be getting what they think. But equally true, is that the seller may be giving up more than they think.

    There are basic principles here. And that is "work for hire".

    The conflicting stuff, is development of "skills", competition, and squelching a persons ability to make a living.

    Fundamentally, one should see a lawyer about this, these two sentences should keep you google happy long enough to grasp the things that you should expect from you

    • Excellent point - If we WANT to have ownership of source we clearly spell it out in the contract - sometimes it is a deal breaker, but we have been hosed too many times by programmers who won't stand up and support their work....

  • by Spazmania (174582) on Saturday March 06, 2010 @10:04AM (#31380790) Homepage

    But, put simply, code is owned by its developer even once the client has paid, unless that developer is legally employed by the client or a contract exists that transfers full ownership (and even then it's far from clear-cut).

    Just a point of clarification: You can't write a contract that transfers ownership of a copyright that doesn't (yet) exist. Well, you can but it's unenforceable in the US. You can write a contract to the effect that you *will* transfer ownership of the code you build, but you still own the code until you sign a subsequent document transferring it.

  • by Anonymous Coward

    I've been coding for about 22 years. In that time, I've worked on proprietary code for customers and employers. customers usually understand that they are paying for the final product, not the inner workings to give them the final results. you can use the concept of building a house. they are paying for the house, not my workers, not my tools, not my materials. i do not leave a copy of my dev tools for the customers, nor will i leave them a copy of my proprietary code libraries which i employ regularly

  • by Low Ranked Craig (1327799) on Saturday March 06, 2010 @10:21AM (#31380864)
    License

    Generally speaking the graphic design and of course the content (textual content, photographs you have licensed, etc.) of the site is yours to do with as you please, but the underlying source code (PHP and JavaScript) remain the intellectual property of Company, LLC. You may modify them as needed, but you may not duplicate the software for use on other websites, and you may not distribute derivative works. This license is transferrable as long as Company, LLC is notified in writing of the transfer, and may verify that the transfer has taken place.

    I've never had a problem.

  • So I have prior knowledge of X highly efficient algorithms to do various things that I have come up with in the past, If I happen to have need of them then I instinctively will use that method, to fluff it up with placebo code to make it unique in some way would be wrong, and any half decent coder coming after me would remove placebo code spotting it's uselessness anyway so my original algorithm would be left.

    Everyone knows 'new' code is highly rare as it is unless working with a very specific problem.

    So ho

    • by Entrope (68843)

      Copyright protects a particular form of expression. It doesn't protect the underlying idea. Even in broad copyright regimes, where you can copyright the particular contents of a phone book[1], copyright doesn't stop others from creating phone books that list names and numbers using the same method of ordering.

      So you can use binary trees, lookaside caches, Bloom filters, or whatever other efficient algorithm you want -- copyright law won't stop you from using those algorithms. You just can't take CODE fro

  • If I paid someone to make a cake for me, I own the cake. If I paid someone to paint a painting for me, I own the painting. Why do people want to change the rules for software?

    • by sribe (304414)

      If I paid someone to paint a painting for me, I own the painting.

      What makes you think that? How would you reconcile your statement with the copyright laws regarding authorship?

      • by erroneus (253617)

        If I pay to have something created, I own it. It did not exist before I wanted it to exist. The ideas are mine. The money (and resources) are mine. The labor was paid for. I worked for and I should get all the money for every burger I made? No. They paid me for my labor.

        We are not talking about "software for sale." We are talking about "making something for me."

    • If I paid someone to paint a painting for me, I own the painting.

      Sort of... you own the physical painting, but that isn't the same as owning the copyright. Whether you owned the copyright (in whole or specific rights of duplication, etc) would depend on the purchase contract you arranged with the painter.

      Same with a book. If you buy a book you own the physical object, but you don't own the copyright. You can't go making copies of the book and selling them yourself.

      Same with software. If you "buy" a piece of

  • But, put simply, code is owned by its developer even once the client has paid, unless that developer is legally employed by the client or a contract exists that transfers full ownership (and even then it's far from clear-cut).

    The gist of that is right. But it could use a couple of clarifications. The developer usually owns the copyright unless the contract explicitly transfers the copyright to the client. If that's the intent, but the contract just specifies transfer of full ownership, then it's not clear-cut because you have a poor contract that does not correctly specify what it needed to in order to legally satisfy the intent of the parties. If it actually transfers the copyright, then it is indeed clear-cut.

    Now, the exceptio

  • While the question of ownership / work-for-hire might exist for proprietary software (MS-Windows, SAP, etc), it most emphatically _does_not_ for software developed for a GPL base.

    As derivative works, the software creator is required to accept the GPL to distribute her software. The GPL clearly states that anyone who receives binaries is entitled to source _and_ rights of further modification and distribution. Stallman wrote it this way after frustration with a Xerox printer driver.

    Now, the question might

  • Most of the responses here are arguing legalities. That's nice and all, but most of how business works in the real world doesn't wind up in the court system, but by people just making decisions. So I think it's valuable to present the perspective of a customer.

    From my perspective, it MIGHT be acceptable to not get the source code for the work, given one of three possible conditions:

    1. I never expect to modify or maintain the application in any way whatsoever during it's lifetime. (We all know this is rela

  • It's more like if I paid someone to go to IKEA, get me a flat-pack wardrobe & put it together. I would still expect them to give me the allen key which came in the box so I can take it apart & put it back together myself.

    He also seems to have confused 'own' with 'right to use'. There's no reason why he can't give his source to his client and still retain the right to use it again himself.

    Starting development without a contract sounds like a thoroughly foolish idea, as the terms will be essentially d

  • Oddly toned post (Score:3, Insightful)

    by Spittoon (64395) on Saturday March 06, 2010 @06:18PM (#31384448) Homepage
    Normally /. is all "I paid for [media file] so I own it and can do what I want with it" in opposition to the copyright holders who are like "No, you just licensed it, we own it and can take it back or prevent you from copying it if we want".

    Here, are we to feel that the people who paid for the code don't own it and can't do what they want with it? Are developers acting the part of the MPAA now?

    Lots of the responses are like "you own what you contractually purchased, according to said contract", which is cool 'cause that's what I think should be the case.

    But the tone of the original post is Weird.

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