On January 29, 2009 at 12:53, amirm said...
Is there a contract with the customer on this specific
point? If not, then a judge will have to decide. Would
you like to go in front of the judge and explain that
you are right in retaining the code the customer paid
you to create?
Let me expand on this. In the business world, we pay
all the time to have contractors and or companies to develop
software for us. To the extent we are paying for it fully,
then it is called "work for hire" which means we retail
all the rights to everything developed including the IPR
(Intellectual Property Rights).
The contractor of course, has the right to negotiate the
above away but that is rare and must be an explicit clause
in the contract. And as a matter of course, I doubt there
is any company who would pay to have code developed but
only receive binaries when all is done.
Now, the contractor, should he/she bring in IP into the
product that he/she owned, can have a carve-out which
allows him/her to retian the rights after the project
is done (i.e. the macros). Or to provide a binary only
license to that library. But all would need to be stipulated
in the contract as otherwise, it falls under "work for
hire."
Just think about this: if you paid me to do some work
for you for your next project, would you assume that I
only give you binaries? If not, why is there an assumption
that the judge would treat it differently when it is a
customer/CI relationship as opposed to contractor/CI?
The argument is whether the client is buying a single solution/product or a bunch of hardware and programming.
When one buys an ipod they get the functionality of the ipod but they dont get the software or schematics to it and should they try to upgrade it at some point they are on their own. Same goes with software or anything else you buy.
So the only way to make this a non issue is for the CI to first.. make the client aware of the issue and then give or sell the code to the client.
Let's not confuse scenarios here :). If I pay you to
write code, it has nothing to do with buying shrink-wrap
software. I assure you the courts would not automatically
assume it is "licensed" software because that is how you
buy off-the-shelf software. You are writing code to a
spec unique to me. Commercial software is not that way.
This is the same issue.. are they buying shrink wrapped software or are they buying written/editable code? This is where a contract is important and what the judge would have to determine.
Most importantly, commercial software comes with a license
which I am supposed to agree to before using. Do you
provide such a thing to your customers and have proof
of that? If not, there is no "license grant" here whatsoever.
We have an implied work-for-hire contract and the judge
will decide who is right.
The work for hire contract is (or could be viewed as) for the solution not the components and programming.
