You are totally wrong. In a contracting situation, the CONTRACTOR owns all the code he or she produces unless the contract specifically states otherwise.
Where exactly am I wrong? Point the sentence. Of course you have to assign them IP! That's what they're paying you for! Ever contracted for the government?! Look at their 20 page assignment agreement.
You are right in the case of a full time employee. You are wrong in the general case of contract software engineering. Most software development contracts DO NOT have a 20 page assignment agreement that assigns copyright to the person/company paying for the work. It sounds counterintuitive and false, but that really is the case. You, the contractor, own the IP unless you sign your rights away. And even if you do, it probably won't hold up in court.
In regards to the government, I admit I don't know, I've never contracted for the government.
Also, I find it strange that the link you provided argues directly against your position.
You can absolutely sign away your IP rights in a contract. Unless the contract is crap it will certainly hold up in court. The contracting business would be a lot less healthy if this wasn't the case. Everything else you said is correct from what I know -- at least in California.
The neat thing about the labor laws in California (and some other states) is that they protect you from signing away lots of other rights as a full-time employee. It's difficult to enforce non-competes against former employees for example.
I write software as the largest part of my business, and I don't think I've ever been asked to assign copyright to the purchaser. I go out of my way to point out in written materials that I use licenses like GPL, BSD, and put stuff in the public domain when that's compatible with library licenses and such, but no client has ever actually asked me about that.
In my experience, people who are buying custom software don't even think about copyrights and licenses; it just never occurs to them.
It depends entirely on how savvy your clients are. Do some work for a company that has an IP lawyer and you can see the difference. The way it usually works is that you grant them a non-exclusive perpetual license to the software but maintain ownership yourself. If they want ownership you charge an additional 20% on the total cost, or whatever. I recommend contractors having their own contracts drafted by a lawyer and not signing client-provided ones. Much easier to be fair that way.
Software is not mentioned under any copyright law. Thus most ownership clauses contracts will NOT hold up in court. And as randallsquared said, most of the time ownership isn't even mentioned. I'm astonished by engineers who think this is some cut and dried issue, like NickB who points out that what Juwo mentions is "illegal" when it isn't. If it was illegal, you could make a reference a law.
Software copyright and ownership issues are murky. If they were clear cut, would Facebook be running right now?
Facebook is a great example. It depends on who you believe, but it appears that Mark Zuckerburg worked on a site that was similar to Facebook, but geared towards Harvard students. For whatever reason, he bailed and started Facebook, which was pretty much the same thing, only with a bigger scope, and better.
If he stole some PHP code, is that unethical? If he stole the idea, is that unethical? What if the guys he was working with were idiots who didn't really care, and were going to only pay attention to their rinky-dink site when they weren't at rowing practice? Is it unethical to grab someone elses idea and run with it when you know they are just going to let it lay fallow?
I agree software copyright and ownership can be murky. You're completely wrong about software copyrights not being licensable/transferable via contract. It's the basis for the entire software industry and you're claiming it doesn't even exist. Courts have found software to be comparable to literary works, making most general copyright law applicable. There's also plenty of special provisions and case law.
The contract almost always states otherwise though. Unless maybe you're working in an area where the companies doesn't care about their IP or are just simply ignorant.
This is the other extreme - which I didnt mention in the op.
I agree that copying code is wrong - but what about a good idea that you come up with, or a neat design or technique in code?
It seems unfair given that doctors, scientists, marketing and many other professionals can keep a record of their work. Maybe not reams of data, but something. (I am not 100% sure of the extent they are allowed to). All art professionals have portfolios.
Is your brain just a vessel to be washed clean before it is rented out again?
Again, I am not talking of secret algorithms that would break a company, not someone else's work.
I can never really agree to such a clause, though. In the most extreme case it would mean I could never take on another contract, because I already used up all my programming tricks in the first one. For example I might have employed the MVC pattern, will I be able to ever use it again?
I've worked on over 20 software contracts and never once did the contract contain a clause that forced me to assign copyright agreement to the person paying for the software. Note that this only applies to contractors, not exempt employees.
Interesting...at the places I've worked (as an employee), it was considered a dealbreaker if a contractor wanted to own the source code they produced. We passed up some really, really good contractors because they wanted to own the product.
I'm not actually commenting on either A) or B), just on menloparkbum's comment that it's common for contractors to retain ownership.
I don't really want to get into the ethics of it, because I don't think ethical debates are particularly fruitful. (I took a course in meta-ethics in college, which makes me particularly suspicious in attempts to ground ethical judgments in factual statements or logical debate.) I'll tell you that I wouldn't do it; it sounds dodgy enough that I wouldn't really want to get involved with it. Ultimately, most ethical judgments come down to gut feelings about right or wrong.
I will say that right or wrong, I think it's stupid. You're opening yourself up to big legal liability. If acquirers or investors find out about it (and they will - that's what due diligence is for), they will nix the deal. Heck, I'm spending about $1K to have a lawyer draw up a release to make sure all IP I developed for my startup while employed belongs to me, and I didn't take any source code from my employer (I'm using a completely different technology platform and am in a completely different area of business.) It's just something I don't want to fuck around with.
Enterprise software? That surprises me based on my limited experiences, but all the better for you I imagine you own a sizable amount of useful code by now.
no problem. I've never worked on enterprise software. mostly weird, short term stuff for startups, researchers and artistes. the code was sometimes fun, but sadly, almost never useful outside of the specific contract.
Comments
You are totally wrong. In a contracting situation, the CONTRACTOR owns all the code he or she produces unless the contract specifically states otherwise.
Where exactly am I wrong? Point the sentence. Of course you have to assign them IP! That's what they're paying you for! Ever contracted for the government?! Look at their 20 page assignment agreement.
http://www.developerdotstar.com/mag/articles/daniels_softwar...
You are right in the case of a full time employee. You are wrong in the general case of contract software engineering. Most software development contracts DO NOT have a 20 page assignment agreement that assigns copyright to the person/company paying for the work. It sounds counterintuitive and false, but that really is the case. You, the contractor, own the IP unless you sign your rights away. And even if you do, it probably won't hold up in court.
In regards to the government, I admit I don't know, I've never contracted for the government.
Also, I find it strange that the link you provided argues directly against your position.
You can absolutely sign away your IP rights in a contract. Unless the contract is crap it will certainly hold up in court. The contracting business would be a lot less healthy if this wasn't the case. Everything else you said is correct from what I know -- at least in California.
The neat thing about the labor laws in California (and some other states) is that they protect you from signing away lots of other rights as a full-time employee. It's difficult to enforce non-competes against former employees for example.
I write software as the largest part of my business, and I don't think I've ever been asked to assign copyright to the purchaser. I go out of my way to point out in written materials that I use licenses like GPL, BSD, and put stuff in the public domain when that's compatible with library licenses and such, but no client has ever actually asked me about that.
In my experience, people who are buying custom software don't even think about copyrights and licenses; it just never occurs to them.
It depends entirely on how savvy your clients are. Do some work for a company that has an IP lawyer and you can see the difference. The way it usually works is that you grant them a non-exclusive perpetual license to the software but maintain ownership yourself. If they want ownership you charge an additional 20% on the total cost, or whatever. I recommend contractors having their own contracts drafted by a lawyer and not signing client-provided ones. Much easier to be fair that way.
Software is not mentioned under any copyright law. Thus most ownership clauses contracts will NOT hold up in court. And as randallsquared said, most of the time ownership isn't even mentioned. I'm astonished by engineers who think this is some cut and dried issue, like NickB who points out that what Juwo mentions is "illegal" when it isn't. If it was illegal, you could make a reference a law.
Software copyright and ownership issues are murky. If they were clear cut, would Facebook be running right now?
Facebook is a great example. It depends on who you believe, but it appears that Mark Zuckerburg worked on a site that was similar to Facebook, but geared towards Harvard students. For whatever reason, he bailed and started Facebook, which was pretty much the same thing, only with a bigger scope, and better.
If he stole some PHP code, is that unethical? If he stole the idea, is that unethical? What if the guys he was working with were idiots who didn't really care, and were going to only pay attention to their rinky-dink site when they weren't at rowing practice? Is it unethical to grab someone elses idea and run with it when you know they are just going to let it lay fallow?
I agree software copyright and ownership can be murky. You're completely wrong about software copyrights not being licensable/transferable via contract. It's the basis for the entire software industry and you're claiming it doesn't even exist. Courts have found software to be comparable to literary works, making most general copyright law applicable. There's also plenty of special provisions and case law.
http://www.copyright.gov/title17/92chap1.html#117
The contract almost always states otherwise though. Unless maybe you're working in an area where the companies doesn't care about their IP or are just simply ignorant.
This is the other extreme - which I didnt mention in the op.
I agree that copying code is wrong - but what about a good idea that you come up with, or a neat design or technique in code?
It seems unfair given that doctors, scientists, marketing and many other professionals can keep a record of their work. Maybe not reams of data, but something. (I am not 100% sure of the extent they are allowed to). All art professionals have portfolios.
Is your brain just a vessel to be washed clean before it is rented out again?
Again, I am not talking of secret algorithms that would break a company, not someone else's work.
I can never really agree to such a clause, though. In the most extreme case it would mean I could never take on another contract, because I already used up all my programming tricks in the first one. For example I might have employed the MVC pattern, will I be able to ever use it again?
I've worked on over 20 software contracts and never once did the contract contain a clause that forced me to assign copyright agreement to the person paying for the software. Note that this only applies to contractors, not exempt employees.
http://www.developerdotstar.com/mag/articles/daniels_softwar...
Interesting...at the places I've worked (as an employee), it was considered a dealbreaker if a contractor wanted to own the source code they produced. We passed up some really, really good contractors because they wanted to own the product.
please also comment on A) since the person is likely to become an investor in my product in the near term.
I'm not actually commenting on either A) or B), just on menloparkbum's comment that it's common for contractors to retain ownership.
I don't really want to get into the ethics of it, because I don't think ethical debates are particularly fruitful. (I took a course in meta-ethics in college, which makes me particularly suspicious in attempts to ground ethical judgments in factual statements or logical debate.) I'll tell you that I wouldn't do it; it sounds dodgy enough that I wouldn't really want to get involved with it. Ultimately, most ethical judgments come down to gut feelings about right or wrong.
I will say that right or wrong, I think it's stupid. You're opening yourself up to big legal liability. If acquirers or investors find out about it (and they will - that's what due diligence is for), they will nix the deal. Heck, I'm spending about $1K to have a lawyer draw up a release to make sure all IP I developed for my startup while employed belongs to me, and I didn't take any source code from my employer (I'm using a completely different technology platform and am in a completely different area of business.) It's just something I don't want to fuck around with.
Enterprise software? That surprises me based on my limited experiences, but all the better for you I imagine you own a sizable amount of useful code by now.
Great article btw, thanks.
no problem. I've never worked on enterprise software. mostly weird, short term stuff for startups, researchers and artistes. the code was sometimes fun, but sadly, almost never useful outside of the specific contract.