Why Paying For Code Doesn't Mean You Own It 447
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."
Work For Hire (Score:1, Interesting)
Back when I contracted, all contracts had that I was doing the work as "Work For Hire".
That seems pretty clear cut to me. Meaning, they own it.
But do I own the bits? (Score:2, Interesting)
Slippery slopes... (Score:5, Interesting)
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.
False dichotomy of Microsoft/Linux (Score:4, Interesting)
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.
Re:Evolution (Score:5, Interesting)
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.
Interesting when hiring contract artists (Score:1, Interesting)
Many successful contract computer graphics artists 'have' libraries and scripts that they have developed over the years. These are often created or written as 'work for hire' for their previous employers.
When I hire them (as does everybody in the business) they are required to sign an employment agreement that says that anything created on the job is a work for hire. They're working at our facility, under our supervision, with our equipment and toolset -- it could not be more clear what the arrangement is.
Especially among younger artists, though, these rules do not seem clear. They think that the tools they write benefit the company, but that they should be able to take them to their next gig.
My License for Web Dev (Score:4, Interesting)
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.
Re:Be honest, and you won't have a problem. (Score:3, Interesting)
" 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 transfer ownership upon payment is a fool
I've been there, for both conditions, on BOTH sides of the deal (Buyer and seller), and you have to watch this. I've BEEN in a situation where we were not getting paid, and had to threaten a copyright issue - We got paid..
Re:Incorrect (Score:1, Interesting)
Bullshit, most "expensive" wedding photographers are immature hacks who think they're artists. I've a wanna-be hack, but don't charge my friends. If they ask, I'll take pictures. Those who want to have a real photogropher but like my pictures generally ask me to take pictures too. I just ask them to make sure their agreement with the wedding photogropher doesn't preclude other photographing. My feedback is that mine get printed, the professional's don't.
If you want a real test of the photographer, ask them 2 questions. "what retouching do you do to all of the photographs" and "May I see the albums from the last 3 weddings you shot." ... their best photographs are really irrelevant. What they'll actually do for yours is important. If your "professional photographer" doesn't do anything but red-eye and "I'm feeling lucky" in Picassa, or, worse, not even that, what the hell are you paying for. In the 100 people you invite to your wedding, someone's got a DSLR and can compose a picture.
Re:Incorrect (Score:1, Interesting)
This is changing. 3 years ago when I hired a wedding photographer it was about a 50/50 split between photographers that kept control over the photos, and photographers that handed *most* rights to the customer. I have a DVD of the full-quality photos. Any we had printed are photoshopped, the others are just the originals. We can print as many as we want, so long as we don't sell them for profit. We can post online so long as we credit our photographer. They really can't stop someone from making a high-quality copy of a photograph with a $200 all-in-one printer, so why not make it convenient?
Re:Incorrect (Score:5, Interesting)
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, Interesting)
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:Evolution (Score:3, Interesting)
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 contain some parts of general interest that also is innovative. But this code does not always occur. It is also a fraction, and may contain critical values. The big issue is to identify this little piece of code.
Now - if you as a customer pays for an item you will get the composition of all the components involved. This is what you get. If fragments of that code is reused in another solution - so be it. It's like saying that if a few specific sequence of notes in a work like a piece of music is reappearing in another piece of music you own that other piece too. But there are only so many ways to do things so solutions will reappear and reusing or rewriting is a moot point in reality.