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Beta-Testers and Intellectual Property?
cozimek asks: "I've got a question I'm sure many other Slashdot users have dealt with. My startup has been starting programming development with testing from our beta-clients. One of these clients, however, has begun discussing intellectual property rights. They believe that they deserve rights to parts of our software because they have helped give us advice through the development process. We think we own it all, and that they should be happy to have our services, tailored to their needs, for free. Has anyone dealt with these issues? Has anyone created a beta-tester contract?" As with all such issues, the devil is in the details...particularly the contractual ones. If you've had such issues before, from either side, please let us know how things turned out.
You don't own IP because you pointed out a problem; you have to suggest a solution.
IANAL, If you didn't get have an NDA signed in advance, your basically screwed.
David Corbin
David Corbin Promote Freedom - American Liberty Foundation
I might get flamed, but actually Microsoft's contract for their beta testers (the "real" testers, not Joe Schmoe who bought the beta 'cause he heard it was cool) is pretty thorough.
I don't know about the legal issues, but from long experience in programming and knowing writers and other artists, an idea is only 1% of what is needed for any kind of product. The other 99% is a person or group with the skills and drive to make it a reality.
Ideas are a dime a dozen... everyone has an idea for a great game, TV show or book.. but how many people devote years of their life to actually make one happen?
While you may not have protected yourself sufficiently from them exposing the details of your software, they certainly don't have a claim for IP rights. That would mean that everyone who sent in a complaint to customer service at M$ would be a shareholder by now.
IANAL, but they are beta-TESTERS, they test the product, they have no need to look at the code. They are there for primarily the purpose of testing, if they had written code it could be debated, but how can they claim that they deserve to have the source, when they havent done anything but ran software your company created?
I SURVIVED THE GREAT SLASHDOT BLACKOUT OF 2002!
Hmm, if I reply to your thread, then I want :)
partial IP rights over your product.
Seriously, don't you have a Beta tester agreement that states that they get nothing but the opportunity to test the release?
Personally, I'd have your lawyer write up a one page agreement, I'm sure there's boilerplate somewhere out there, and make sure all beta testers sign it.
Push the button Max!!!!
I've worked with some companies that had beta testers, but for a closed system (B2B) not shrink wrapped software. No one ever brought this up, but I'm not surprised. It's such a hot topic and so many people want to make a buck the easy way.
They may have an argument if they contributed a idea with substantial information about how to implement it. However, this might be hard to prove. If they suggested a feature and you implemented it without their assistance, I wouldn't think that they have any rights.
IMHO, the best bet would to have some sort of NDA that included a disclaimer of IP rights.
i beta tested a online web page maker once and i had to sign a beta testing contract
{TheT3chfreak}
I'm not sure what kind of contract you had your beta testers sign when they agreed to do the testing, but I'm sure it specified clearly that not only is your IP confidential, but that it is strictly your IP and they have no rights to it. Since they willingly agreed to these terms, there is no real argument for them here.
Even in the absence of that though, since you (or your company) created the IP, you intrinsically own it. No one else, either a tester or otherwise, has any legal claim to your code.
In case of fire, do not use elevator. Use water!
That would be like someone who submitted a bug report to Microsoft about Windows XP cliaming a % of the profits.
I persume the contact should hold the answer in most cases. And if this isn't mentioned... then its time to add it.
Cruise TT
We think we own it all, and that they should be happy to have our services, tailored to their needs, for free.
It's gotten to the point where no one will volunteer a little time anymore, and that anything done must have a payment attached to it. It's not like you get nothing for beta-testing, you do get a working copy of whatever you test - for free, as the article writer states.
Normally, a commercial "closed" beta program includes a NDA worked out in advanced. Normally, the customer owns nothing.
You have to sort this out with your customer. Sometimes the customer opportunity is big enough that you have to keep them happy. Sometimes the customer is just full of it and you should tell them to go away.
No, just kidding. If they give you ideas for free - that's their problem. Unless they have patented the idea, you will have no problem. Drop the client to show 'em who is boss.
Well, under copyright law the copyright protections go to the author of the work under the law, automatically, unless there's some other agreement that supercedes it (like you working on a contract for another person). So if there's no agreement, and they're using software you wrote, they have no case. Rather, they have no intellectual property rights to it simply through providing you with a consulting service.
However, if they have a license to practise consulting, it's possible they could sue you for consulting fees, but that's got nothing to do with ownership of the software. The law says if you write it, it's yours automatically.
I'm semi-amused, considering how most software is prematurely released.
Maybe all those XP users who submit error reports should have their names listed on a massive 10G Easter Egg as being "contributers" ?
Those that suggest you "dance like no one is watching" really want to see you make a complete fool of yourself.
We are not lawyers. What on earth goes through someone's mind when they go "Hm, my company has a legal problem, I should go ask slashdot!"?
Paying for legal counsel is part of the costs of running a company, and you get what you pay for.
You missed the boat in not having a lawyer draw up a contract for beta testers. Don't screw up again by not having a lawyer deal with someone trying to claim rights to your property.
If you're company intends to be an ongoing business they must retain a law firm. This is a question for Ask Lawyer, not Ask Slashdot.
Not that I'm trying to be a jerk or anything. I just don't think when you are dragged in to court that having asked the slashdot crowd what to do will be of much help to you.
Are all those who agree to the Microsoft EULA.
Thank you and have a nice day.
I'd say they (the beta testers) don't own any portion of the IP rights. If a beta tester points out that doing X, Y, and Z will cause a crash, they're simply giving you feedback about your product. You're the one who comes up with a solution on how to fix it. Even if they give a way to fix it, they don't own the IP rights to that method. This is assuming that you control the source code 100%. If the code is freely available, someone submits some patched code, and you use it then all bets are off. To be on the safe side, you should probably have a disclaimer somewhere on the beta test site that states that all submissions become your property. Just to be on the safe side. (I tend to beta test my programs with a group of technically adept friends of mine, so I've never run into this. They're unlikely to demand rights to my program, they're just happy that I continue to develop it.)
My sci-fi novel, Ghost Thief, is now available from Amazon.com.
Call a lawyer. Just do it. If you don't have a lawyer, what are you doing in charge of a company? How could you have started beta testing without an EULA? This clearly isn't free software, otherwise you wouldn't have to 'beta test' it, you'd just release, revise, repeat.
Nonfree software requires EULAs, sorry, but that's the only way to avoid little messes like this. Just call a lawyer, explain the situation, get him to resolve the situation. Otherwise you're gonna end up having to go with the results of an 'ask slashdot', which is never pretty.
[o]_O
No one should have access to beta software without some type of contract. A click to ok seems to be valid contractually but for a closer relationship should have binding signatures. I have had to pass on some interesting stuff when the legal dept. voted no.
If no contract was made this has the potential for a very interesting not to mention expensive law suit.
What did you say in the licensing agreement?
Barring that, here is what is ethical:
If a tester recommends a feature, they should be able to recommend that to anyone. If they mention a new way to do something, they can mention that to anyone. If they mention a new color scheme...
Basically, any ideas they have are their own, and they should be able to share them anywhere. The specific implementation, however, is your code. And unless you open it up in some way, it stays your code. Piss on them. (And this is spoken from someone who does a LOT more testing than programming.)
Jesus was all right but his disciples were thick and ordinary. -John Lennon
IANAL, but you can't just "lay claim" to intellectual property. You have to prove that you and no one else thought of the idea, then go through proper channels to protect it. If the beta-testers get a patent on an idea they suggest, then clearly they own it. Otherwise, anything they tell you is free game until it's protected by law.
Moderation: Put your hand inside the puppet head!
IANAL, but my company got into a messy situation like this once before. Basically, if you don't have an explicit contract and you live in the US, you are screwed. The way the US copyright law is setup is that if you have an idea or something written down (such as in an email), you automatically have a copyright to it. You can still buy a copyright with the copyright office in order to prove it, but even without doing this you still have all rights to your Intellectual Property. It is really sad the way this works, but it is the law, so we must face it. So, I recommend either giving them the appropriate share of profits, or moving to Europe. :-) Simple as that, even if you made it. Sad, huh?
If they actually contributed code to your software, or designed hardware components, then they may reasonably regret giving it to you for nothing, but if they gave you stuff with an understanding that it would be used in your product, without making it quite clear (preferably by contract) that they expected to be part-owners of the resulting product, then I don't see how they could possibly have an argument that could hold up in court.
Another question: is this a copyright or patent issue? For copyright, the implementation is all that matters, so if they didn't give you actual code or circuit diagrams that are present in your final product, then they have no basis to claim ownership. If patents are at issue, then it could be a little murkier.
They should have intellectual property rights becuase a beta testers plight is merely that from suggestions.. the rights should still remain to those who actually do the hard core codeing..i mean my english teacher does not get credit for the essay that i wrote even though she graded it..rights should remain to the real workers and thinkers not the critics
It seems that back in the late 1800's in America (I mention this for those /.ers who don't happen to live in the U.S.) there was this saloon in the
West that was kind of a run-down, ramshackle joint that was frequented by
a few loyal patrons and not too many others. I think it was California, but
it could have been Oregon or someplace similar -- well, the location isn't
really relevant to the story but if you're really interested you might
be able to dig a bit on Google to find out. Basically, while the saloon
didn't go out of its way to publicize itself to out-of-towners (not much
point given that it was in a fairly remote area) it managed to do a fairly
steady trade despite the occasional brawl that caused property damage and
the persistent requests from a particular fellow for free drinks.
More nights than not, the proprietor of the saloon would watch this drunk come wandering in through the doors, sit down, and lay a line on him about how he's trying to pull things together and how he'd just make enough to keep himself in beans and couldn't the bartender just pour him a shot or two to fuzz the edges and whatnot. And again, more nights than not, the bartender would take pity on the poor guy and pull out the whiskey.
Now, this went on for some time, and while the bartender was an easy mark even he had his limit. So one night, after the bartender already gave the fellow three shots on the house, he decides to cut the guy off.
"Look," he says, "while I'm really sorry to hear that things still aren't working out for you I don't think that I can keep giving you free drinks. I've got to make ends meet too, you know."
So the drunk says, "I don't suppose you've got anything I can do to get another drink tonight?"
The proprietor, not particularly wanting the fellow to hang around all night and certainly not expecting him to take him up on his proposition, says "Well, you see that spittoon over there? If you take a swig out of that I suppose I could give you a drink to wash it down."
No sooner did he finish his last sentence than the drunk walked over to the spittoon and heft it off of the floor. Before the bartender could stop him, the fellow put the rim to his lips, tipped the bottom of the metal container up into the air, and began to swallow. To the bartender's dismayal, the guy continued to slowly chug the thick contents of the spittoon. When he had finally gulped the final remnants of the container, he threw it to the ground, wiped off his lips with his shirt cuff, and gagged, "So, do I get the drink?"
"You can have the bottle!" exclaimed the bartender, immediately pouring the first shot. "But tell me, why did you swallow the whole damn thing? You only needed to swig it to earn the drink."
The drunk replies: "It was all one long string."
BTW: This Troll Tuesday post is a nominee in the Most Stealthy and Best Payload categories for the World Troll Awards 2002. Please show your support for the event by composing an extremely offensive or provocative message and submitting it to this site for review. While any place will probably get your message seen, be advised that posting near the top of an article will help your odds. Also, frequency counts; submit early and submit often, and we'll see -you- at the Awards.
Try not. Do or do not, there is no try.
-- Dr. Spock, stardate 2822-3.
If they sent you emails with ideas about how to improve the program, then they might be able to argue for a copyright on those emails, but that doesn't give them any rights to code that you wrote to implement the ideas.
If the ideas they sent you are patentable, then why on earth did they disclose them to you before either filing a patent or signing an NDA?
IANAL, but either you left out some very significant details, or they're blowing smoke.
send all spam to theotherwhitemeat@ropine.com
...then you wouldn't have to worry about any of this. Happy litigating!
Robotiq.com is heavily tested on animals
We just started beta testing our product. Our beta testers have to sign a 15 page document that states, among other things, that they do not own the rights to any features or improvements they suggest. Of course signing any sort of agreement is disincintive so we offer our product free to them once we release.
Even if you never had a beta-tester contract with them (which would have been a good idea), I think there's enough historical precedent about the role of a beta tester that you're on pretty good ground.
It's unheard of for beta testers to obtain IP rights to what they're testing, so without a contract giving them such rights, I'd say the reasonable assumptions for both parties would be that there is no IP ownership promised to any beta tester.
I think they'd have a more difficult time in court proving that there *was* some reason for them to think they should have partial IP ownership, when the standard way of doing things clearly is not this way.
I'd either ignore them, and let them fade away, or hire a good IP lawyer, who probably wouldn't need to spend much time on the issue, sending them a one page letter outlining why their claims are baseless.
-me
Love many, trust a few, do harm to none.
Are you saying your contract with these beta-clients didn't deal with this issue? The company I work for has been in the exact same situation; we made damn sure the issue was dealt with in advance, in the contract.
I suspect you might be lucky in this case though; even without a contract I don't see how they would be able to successfully argue that they own part of the IP.
-- If no truths are spoken then no lies can hide --
You should probably seek legal advice now. If you can't afford that for some reason, you should probably take a look at an existing 3rd party's beta agreement (poor man's legal advice).
Assuming your agreement isn't sufficient, send them an updated one now, and get them to sign it. This isn't an area for negotiation, they agree now you own all the IP, or they stop using your product immediately.
Play hardball, sometimes you have to.
---
I support spreading santorum
How? This cunt is really getting on my nerves - I'm having to browse at 0.
IANAL, and that's who you should be talking to.
The first thing is to re-read any contract that beta testers signed. You did have them sign an NDA, didn't you? That should at least keep him quite.
As far as rights, he has none. There is no employment agreement. Even if there was one, the company owns all. He may think you own him one, but he's wrong. Let him get a lawyer to prove otherwise.
That's not what I meant.
The contract you had your 'beta testers' sign should have had at least minimal confidentiality, non-disclosure, non-compete, or ownership language. IANAL, but I know that in this litigious society, you better have your work covered, or someone will steal it, and sue you for the rights...
Guvegrra?
Did they write code? Did they write algorithms? Did they write specifications (not just provide feature requests, but actually write out specification documents with a description of what features would be necessary for the product to be successful - not merely based upon their own needs, but based on e.g. market-research)? No? Then where is the IP? Your beta testers sound like a boatload of crooks to me (but IANAL).
Maybe this is obvious, but you're not going to get a definitive answer to a question like this without an in-depth consultation with a competent IP attorney.
There are questions here of co-ownership and co-inventorship (among others). While this could come out many ways, depending on the facts, it sounds for a certainty like your beta test agreement was woefully inadequate.
My *guess* though is that your client is blowing smoke and probably doesn't have a claim to anything. Co-ownership is not that easy to establish.
But even if this proves correct, you should probably at least think about spending some money on proper legal advice (and don't think that what you get here will substitute for that).
"Set your long comment +1 bonus to 1 character, mark the shithead as a foe with a foe penalty of -1 and read at 0."
Don't get confused by the main page comment count. I think it doesn't take the foe modifier into account or something.
Oh and this works for the logged in people only.
The owls are not what they seem
Unless the contract you've signed with them gives them those rights, they have no rights to your code.
www.eFax.com are spammers
We think we own it all, and that they should be happy to have our services, tailored to their needs, for free. Has anyone dealt with these issues?
What we've traditionally done: they jointly own the code. We retain the right to resell it, they do not.
Yes - it's basically honor system, but that's how it's done! It may not even be legal, but IANAL.
I'm a 2000 man.
present them with a bill for all your services.
and inform them that you no longer want them as a customer unless they are interested in dropping this stupid idea. (be sure to use the word stupid, it's important.)
It's my understanding that IP belongs to the organization that did the programming. I believe that the courts have required everyone else to have a contract with the programming entity that passes any rights to them. Even so much as... if you are a contract programmer (depending on your contract), you may own the program that you've been working on for your client/employer.
But... like another person pointed out, depending on how hard they are pushing, you'd be crazy not to hire a lawyer to take care of it. Don't depend on a bunch of keyboard jockeys to sort out your legal problems for you.
Awesome ! Thx ;-)
Give them an inch and they'll take your whole company. No one understands the word 'grateful' in the business world unless it comes before the 2 words Huge Donation..
'mmmmmmmmm.... forbidden donut'
Sorry but the software is still protected by copyright.
I've never seen so many IANAL posts in one thread!
PS: IANAL.
Joseph?
beta-testers help you with your program...they are essential, but at the same time volunteers. in this case, they want money..but why? for helping your development? if they can get away with it, why doesnt the manufacterer's of the computer your working on take a piece of your code too...they provided you with development tools, right?
i am pretty sure those last statements were garbled and i am too lazy to go back and read it over, so let me summarize this in one sentence: they dont deserve anything but a pat on the back and a thank you card. =)
Yes, those are amazingly-harsh terms. If we didn't have them we would be screwed. Every major company has those terms for a reason. If you don't like those terms, don't beta test.
For the record, we've never had to sic our barely-paid lawyers at anyone. Yet.
Online wrestling as a trading card game? WWF With Authority.
If that were true, why would they share the same office? Answer me that!
1. Beta license is different from product license and specifically addresses this issue. Testers do not get any IP rights. And among other stuff: License terminates at end of beta program. Beta issues need their own license terms -- look into it.
2. Customers that "need" to own IP rights more than they need to beta the product so that they can influence it through their feedback do not need to be part of the beta program. Find other testers. Smile benignly and tell them when the full product will be available, and of course thank them for their business.
Federal Copyright Law has some fall back provisions which come into play absent a written expression. Regardless, you:
1) should have a written agreement that covers this issue and
2) you should not accept copyrightable contributions from third parties without a written agreement.
-Andrew
I like my beta-tester friends. I have acquired some software that I would never otherwise buy or be able to afford because they passed their betaware to me to use.
...of crappy IP patents. For example, it's entirely possible to me that it was a beta tester at Amazon who said, "Hey, making purchases is too hard. Why don't you make a button on the side where you can buy something with one click!".
Amazon patents this simple idea, and makes a mint. Shouldn't the guy who came up with the simple idea get a cut? Especially if he doesn't benefit from Amazon's rise as a company (not a direct employee)? I don't necessarily think so myself, but it's an interesting question.
There have always been people who've got great ideas (but do nothing with them) and are pissed off when someone else implements them. But there's never been a time in history where more capitol was generated from "just ideas".
"...you can steal my woman, but you ain't done nuthin' smart."
other than "fix this?"
If you haven't got access to the source, you cna't possible know how to fix something. You can only point out a problem or deficiency in the bahavior of the software.
http://www.angelfire.com/ca3/marlowe Better a smartass than a dumbass.
One peace of advice from someone that got himself in so much trouble, so many times.
NEVER, and I repeat, NEVER do anything without a lawyer by your side.
Never sign a contract (my lawyer analysed by Cable access contract, and saved me a lot of trouble).
And Never, trice never, give access to your property.
You see, once they got access to the stuff without any restrictive clause, they can ask and even, if they have a good lawyer, gain the rights to part of the IP.
Always have contracts. Be it in the form of a software license (I use GPL, so I don't have problems with IP), or any other form you like.
And yes, they have the right to ask for a pice of the cake. But if they will get it, thats another matter entirely. But they can have a case agains you, and even if they don't win, they will cause you much trouble.
When dealing with lawyer, always remember that if you don't use them to be on the safe side, you will have to use them on the sorry side.
And yes, IANAL either. But lawyers saved my butt so many times, and I have to shamefully grant that I came to respect them.
morcego
My company signed a similar beta testing for unstable releases and a standard licence for stable releases contract with a serious goverment related instituion. We inserted into the contract a pretty strict NDA. Informally we know that they already unintetionally broke the NDA. If things change out of our favor we simply walk in and says didn't you broke the NDA? And then they lose the standard licence and beta testing status too (both tighted into one contract). This is a very convinient situation for a software developer too.
...who beta tested OS X when it was first released? We better demand our IP rights also!
Copyright law does apply to any tangible copy of a "work" but IDEAS are not copyrightable - only execution.....So long as the betas didnt write your code, your copyright in the code itself is safe. The ideal method of protecting yourself from messy litigation, however, is to include a contract clause explicitly acknowleging feedback from the betas is required to participate and comprises your company's intellectual property.
you may need a new lawyer, because you have a malpractice action against the law firm that did the work.
Hmmm, I guess I own a bit of slashdot, as I contribute to its content, and test out new articles as they get posted....
"What we have here, is a failure to communicate." - Cool Hand Luke
That's the only way that this .. person can be described. No, wait, I suppose greedy could qualify.
This person has absolutely no IP rights in regard to your product.
Of course, if you haven't forced said person to sign an NDA, there's nothing preventing said person from blabbing about the juicy bits..
Ok. Two things: First, it is standard procedure to put in a clause of your click-wrap agreement that says that all suggestions, improvements, etc. are owned by the software developer. See the Microsoft EULA for details.
Second, unless you have a NDA with them where you cannot disclose what they say... you are probably just fine. There are two cases: (a) what they have contributed is patentable, in this case they have one year to file the patent; (b) what they have contributed is copyrightable. In case (a), I wouldn't worry about this as most companies won't go through the expense; and (b) make sure that you have a clean-room implementation of it so that you don't violate the copyright.
In any case.. you need a lawyer. And, in the future, you may want to pay $$$ for beta-testing so that your testing results can be considered a "work-for-hire". I AM NOT A LAWYER, THIS IS JUST MY EXPERIENCE WHICH MAY NOT REFLECT YOUR PARTICULAR LEGAL ENVIRONMENT.
Best,
Clark
Charge $100k/yr and offer no support for any modifications that they make. This will either prod them into making/looking for a an opensource solution, or you get another $100k to play with every year.
-- dieman - Scott Dier
From his page:
The Political Information Center Network provides online information infrastructure designed specifically for small to medium sized organizations demanding professional and scalable online services for their critical missions.
Utilizing open-source software, PICnet uses the power of the programming community to offer customized software solutions. This "harvesting" method allows PICnet to offer low-priced solutions to organizations that still demand specialized software.
IANL, but .
If they'd like to own the whole software package, license the whole thing back to them at a healthy rate.
Redevelop the portions of software that they developed code to and write a EULA next time.
Conformity is the jailer of freedom and enemy of growth. -JFK
I went to my GM dealer the other day and test drove a brand new Corvette. Really Sweet. I suggested they put in an extra cupholder. The dealer said "That's a good Idea".
Do I now get to take credit for the design of the car? Do I get a cut of it's sales?
Sound's like another gleeb with too much time on his hands trying to see how far he can go.
If people like that put as much effort into making this a better world as they do in trying to beat the system, we would truly live in Euphoria.
Shhesh.
Only a lawyer can tell you how screwed you are at the moment, but a Beta tester taking that attitude is screwing themselves the worst. There are far more people who are willing to beta test for advance access to product than can be used, so this one's basically blacklisted. And if their name became public, they'd never get another beta. It's assholes like this that are reason for all these stupid legalese hoops you have to jump through to download stuff at a lot of places.
In the past Micro$oft has charged for betas. So use that. If Micro$oft does not need to pay any of its clients, then you don't need either. Otherwise, you will need to pay, and so should Micro$oft, so you can see it as having contributed to the society in general ;)
I was beta testing a piece of equipment. Made an off the cuff remark about another (not thought of) use for it with a minor modification. The company did it, and made a fortune with it. THEN they had the balls to demand the prototype back (but I could get a finished one..at regular price of course!). I didn't bite.... I think if a beta tester does or suggests something that adds a significant value to the product, they should be compensated in some way. Otherwise, the company is stealing....
I strongly disagree. Ideas are the seeds that spark the flames of product development. Without a good, original idea - you have nothing.
Also, I challenge your assertion that "everyone has an idea for a great game, TV show or book".
Do they really? I don't! Seriously, if I came up with a good idea for one of these things, I'd be a fool not to pursue it. The fact is, most things have been done already. Look at the new game shows on television. One person comes up with a good concept, and then you have 20 copycat shows for the next 5 years until everyone's completely tired of it. If it's so easy to come up with original ideas for these things, why can't anyone do it who works in that industry?
Too easy to do the Slashdot thing and somehow relate this to MS. So I won't. Obviously, you didn't get a lawyer to work up an NDA and EULA for the testers. Probably because you're small and didn't think is a big thing.
After you get a lawyer (like yesterday), make an honest appraisal of the impact of the tester's input to your design. Was it on the order of "change this color to ..." or "change this functionality to provide ...". It would seem that they might have made a suggestion, but your people implemented it. This one looks headed for court.
Personally I think that issues like this are a symptom of the problem that IP is a flawed concept, but that doesn't help you any does it?
Some things that you should consider --
What kind of feedback are you getting from them as beta testers? If they're redesigning your software, then they really have some claim to IP -- If they're making a list of repeatable bugs that cause the program to crash, then probably not.
What kind of relationship do you have with these clients? If you're constantly dancing on a knife edge with them, you should probably take your buisness elsewhere. If you depend on their buisness, you may be stuck with their terms.
What are normal buisness practices for betas? Depending on the type of software, and the type of test there is often compensation for the testing time. Beta once meant 'stable', but I've seen betas that were less stable than alpha software once was.
What concessions/costs are associated with granting the beta tester IP rights for their observations? You should be clear on what will happen after you come to terms with the IP issue.
IP is traditionally something that has been used against the small guy. Initiating an IP fight can be an attempt to weaken you before buying you out, or a part of some other avericious buisness strategy.
The agreement held that you did not have any rights to what you suggested, but as compensation you would receive free product.
Fight Spammers!
First of all, any contracts that you signed will affect the relationship between you. You can get IP transfers, define the parties relationships (e.g. consultant providing work for hire), etc. You need to work up a contract for anyone who has access to your IP, period. And, as everyone is saying, this is important - go pay an attorney to go on the record giving you advice. What I'm saying here is not the kind of advice you should have your company rely on.
... then there is more ground for considering them an inventor in that particular aspect of the software (if their suggestions are implemented). You can try to get around it by saying their suggestions are obvious extensions of your original invention, but if it was so obvious (the argument goes), then why didn't you have it in there in the first place?
Outside of any contracts:
If you are talking about getting patents on this software, then your invention is defined by the eventual claims in your patent. Only the inventor can apply for a patent, so anything that someone else came up with is not fair game for your claims.
If the betas pointed out bugs and difficult areas in your interface, then they really aren't inventing anything. They haven't materially added to the invention, they have no new and useful material, they haven't implemented improvements or changes. This kind of beta feedback probably doesn't warrant them claiming inventor status.
If the betas suggested improvements to the interface, like additional sections, a better way to implement a section, or an additional functionality of your software
Remember, though, that if you don't claim the features on which the betas are/could be considered co-inventors, then they aren't part of your IP. And they aren't inventors, with the attendant use rights, of the other parts of your software, even if they are inventors of a piece of it. Also, if your company and the betas are co-inventors on the pieces, then you all have similar rights to it, and they may not be able to prevent you from using it.
Basically, you really need to figure out what the beta has done, get an attorney to help you charactarize it, and then figure out what to do from there. Without looking at the specifics, no one here can give you the kind of advice you need.
don't you hate it when you're at work, trying to read slashdot while not helping someone, and all of a sudden, you realize you've got a boner? it's really horrible. sitting there wishing your partner were able to sneak into the copy room with you for a quickie?
or is it just me?
"You see your honor, according to slashdot comments modded to 3 and above, 98% of posters believe the plantiff has no rights to our intellectual property. The other 2% believed this was somehow related to a beowolf cluster of Natalie Portmans."
Do not taunt Happy Fun Ball(TM)
We're (mostly) not lawyers, but we DO have an idea of what's usual and customary in this field.
Here's a clue - if somebody says "hey, can my (boss|client|contractor|whoever) do this?" and we've seen the same situation play out a dozen times, always with the same results, we don't need a lawyer to predict the likely outcome of the latest incarnation.
Of course people should consult lawyers when there's any real question about a situation, but we aren't infants who need to run to a lawyer for every single damn question. E.g., I occasionally get "invoices" for things I never ordered and things of no possible interest to me. (E.g., a directory listing for my "gasoline station.") I don't need to pay a lawyer to learn that they're probably scams and it would be a waste of my time and money to pursue the matter.
Bottom line, IMO, is that the beta tester was way out of line in making the request. Unless the success of the company depends on their good will, I would have told them to get lost and not given it another thought unless they actually hired a lawyer to pursue their bogus claims. Checking with a lawyer would be a waste of time and money -- unless you really want to pay a few thousand dollars to learn that there is no precedence for such claims. (AFAIK - I have never heard of a successful claim despite almost 20 years in this field.)
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
USPTO = US Patent and Trademark office. Where do you see anything about *copyright*. Last I checked the US Copyright Office was a part of the Library of Congress
Don't you people know you people know the difference between patents, trademarks, and copyrights?
Patents: More or less a government enforced monopoly on the marketing of a unique idea or invention. The general idea is that, let the inventor make some money off of it, then once the patent expires, it becomes free for anybody to use the idea.
Copyright: Covers the publication or copying of materials, such as printed media, sound recordings, works of art, etc.
Trademark: This is protection of something such as a logo or a name that is unique in the owners field of business. Consider that nobody could use the slashdot name or the likeness of the slashdot logo in association with an online message board, as there is a trademark on it.
Now, that doesn't seem so damn complex does it???
I don't know how you handle it now that you've got freeloaders and criminals on your bus but in the future you definitely need an NDA and beta tester contract. For all non free software I have beta tested or had beta tested both of these docs were in place. They are your responsibility though as is the services contract for providing features they request. It often states exactly who ones the IP rights. Good luck with the "we want some money" bandits.
I work for a large company. When you work here, and you contribute ideas to something, or you invent something while working here or you develop something, that thing that you have been working on belongs to the company. This is how it is with almost every company. When beta testers are highered (whether they be temp's or not), they should have a contract that states that anything they contribute or help on or invent or develop while working at the company, belongs to the company. This is a completely standard thing.
Jakobud
You want a lawyer that specializes in - - IP law - -.
I can recommend one that I have used once (I have no financial interest in this firm) in looking into patent issues.
I used Woodbridge Associates in Princeton, NJ. (There is contact info. at : http://www.njiplaw.com/
)
My guess is that they have no claim. Unless you and they signed agreements transferring rights to them. But, you need a lawyer...
Sam Nitzberg
sam@iamsam.com
http://www.iamsam.com
Ideas are not copyrightable only works are and only those that have been written down on a physical medium.
Copyright law isn't screwed up in the US, it's actually pretty well laid out and reasonable. Now our patent system is a joke.
I think that there are some good points made here, but I feel that a interesting aspect of this situation is being ignored. We seem to be focused largely on the legal aspects of the situation and what exactly constitutes IP. These are important considerations, but another aspect (or at least the one I am more accustomed to dealing with) is how IP contributions are a part of the negotiated price that a product is sold for.
For example, we developed a product for a customer during which they made significant contributions to the feature set that was included in the product. There were of course differences as to what the degree of their contributions were(they of course felt it was larger than we did, and vice versa), but there was certainly no attempt to deny on our part that their contribution had been significant. Of course, we argue this to them as an advantage of what we did: you get a product that is customized to your needs, so why should you pay any less for it, etc. Their retort is that they made it a better product not just for themselves, but for our other customers as well.
I believe this was a valid point on their part, and their desire to realize something for this contribution seemed fair to me. What it ended up being was essentially a discount off of what the cost of the product was. The particulars of what the exact discount was, were, of course, contested, but everyone agreed on the principle behind it.
So, I don't know about the legal particulars of any of this(except of course for the contractual ones that were negotiated), but it seems to me that whatever the law says, if the customer has made your product a better one, then it is not unreasonable on their part to demand something in return. At the same time, this is just one small piece in the negotiations puzzle. We for example were more willing to recognize their contributions since being a small company with few customers, they had a greater degree of leverage over us than say if they were dealing with Oracle. In that situation, the most you might ask for is that they implement your suggestion and don't raise your prices.
Any thoughts on this? Similar situations?
John
In the real world, can you afford to piss this potential customer off?
I love saying that. It makes the Lawyers cringe. Kind of like saying I watched a lot of "The Lone Gunmen" and that should make me a expert on computers. "They've compromised our cookie!" heh heh heh...
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
If I find a bug in some software and report it back to company which created it, doesn't that make me an employee of the company which created the software? Am I entitled to compensation?
And if not, why should I waste my time reporting bugs?
The thing about things we don't know is we often don't know we don't know them.
This is the sort of thing that should be handled in the NDA and other paperwork you have beta-testers sign.
This is a great book and should be read by any programmer who attempts to sell their software. From the website: Abstract: How to protect software intellectual property, including copyrights, trademarks, patents, trade secrets, and more. Includes discussion of issues relating to the Internet and diskette with over 50 ready-to-print legal documents.
First off you should have had them sign a Non Disclosure agreement. If you type Non Disclosure Agreement Sample into google you will get tons of examples here is one at http://www.inventnet.com/nondisclosure.html. You see that it should state that anything you tell him he won't disclose to a third party. Also if it's for an individual it should make him list all patents he currently has and any he may be working on. So basically if he didn't list that he was developing Bubba's Backyard EZ-Bake oven he doesn't have any rights to it. It is a little different when you are dealing with a third party company basically then you need a Non Compete. Which most companies will sign without a problem if they are getting free software. This just says hey I understand you make and market Peanut Butter and Bolgna sandwiches I won't try to do the same. If you have those things in place you should be in great shape if not. Call a lawyer so he can get on it right away. The longer you wait the more claim they may have.
If your not cheating your not trying. If your not trying your not winning and if your not winning why play?
They can, and do on a regular basis. However, the demands of the industry are such that it's easier, and more cost effective to implement something someone has allready done succesfully to cash in on it's value. Most original concepts are squashed as a result of cost, and what the decision makers think the public should see, do, taste, touch, or hear.
I'm the big fish in the big pond bitch.
Our standard contract includes clauses where the other party acknowledges that the project is not a work for hire and that the work would have been more expensive had it been a work for hire.
The contract grants them a license to use the software (plus any additional rights granted, sometimes a BSDL style license, etc.). We then use statements of work that are attached to the master services agreement that adds additional work and licensing information.
Ethically/Morally, they have no claim to your work. However, I understand why they wouldn't want their ideas to go to competitors. You should discuss this stuff up front.
Legally? You aren't employees, and it isn't a work for hire unless stated so.
Ideas can't be owned. Methods can be patented, and expressions copyrighted. However, nobody owns an idea.
Consult a lawyer, and find more ethical clients.
Everyone's clients will try to bully them. One of the tricks to keeping a startup alive is to know when you need to suck it up and when you don't.
Alex
Ok, solving this problem is a 4 part process:
1) Hire an intellectual property lawyer to tell them in precise legal terms how to shove it up their posterior regions.
2) Get said lawyer to draw up an agreement to use with all of your current and beta testers that makes them explicitly grant you rights to all of their future comments and suggestions about the product, so this doesn't happen again. You then make them all sign it or take away their beta copy and drop them from the beta program.
3) Make all of your clients *pay* for all future beta versions. It doesn't matter *what* they pay, you can charge them a dollar, but make them pay for it. They have a harder time claiming that you're getting something from them when they're provably paying you for the privilige.
4) Dump the client who's trying to claim they own your stuff. Never do business with them again. Do not sell them any future versions of your products. With friends like that, who needs enemies? If you absolutely have to give them tech support, give them the bare legal minimum you have to for only as long as your contract with them requires. Once you're done with every single obligation to them, tell them you're dropping them as a client so they know not to bother you any more.
Assuming that customer is right, which they're not, then the vendor should get a cut of increased net profit resulting from the use of the software. Ask them what they think of that.
I've worked as a vendor, and as a consumer for a large hospital. The beta-testing is a symbiotic relationship. The user gets free, advanced release software and the ability to offer input on product development, and the vendor gets testing by real users in real situations, thereby increasing product quality, which is what both groups want.
At my current job, we are effectively a beta tester. We pay for the software, but we get it first, they listen to our input, and we get preferential treatment. That they listen to our input is obvious from the latest product release. During the implementation of this product, we found where there was A LOT of waste and undercharging for our services occurring. Does the vendor get a cut of those savings? Hell no!
This is one of the reasons behind copyright having a limited term. Numerous ideas from the commons are used by people when they create a copyrighted work. Thus, after the term is up, that work is returned to the commons. Well, in theory, but don't get me started on the Mickey Mouse Protection Act.
Anyhow, their ideas are valuable and they will get the same fruit of their efforts that the rest of society gets when your copyright expires. Unless you expressed that they would get some greater interest in it, I don't think they have any room to suggest some ownership.
This sig has been temporarily disconnected or is no longer in service
Of course, if you're using their intellectual input to develop your product, they should get a piece. Come to think of it, you're using my intellectual input too. Gimmie! Matter of fact, I had a drunken conversation with a L0pht person about 4 years ago. I want part of @Stake too..
Elegance is for tailors. -A. Einstein
1. IP is IP only as long as it is protected by NDA/patent/patent application. So, if there is an NDA/patemt/... in place there is no question about ownership (you own it), and if there is no NDA there is no question about ownership either (general public owns it).
2. Software is protected by Copyright and you own it unless you sold your rights or explictly put it into public domain.
This is entirely true. My company was in a similar situation where a client suggested a particular feature, and left the implementation up to us. Then, come patent time, they wanted credit for the feature. Our lawyers subsequently advised us that their claim was entirely defensible since they had had input on the feature. Our solution was to leave the feature out of the patent, since it wasn't important to the functioning of the software.
The important lesson is that anytime you enter into a relationship with someone (client, partner, beta tester, etc.) where they have input into the development, or may otherwise affect development, get an agreement in place that covers IP. No matter how friendly the relationship is at the time -- things always change, and it's far better to be paranoid and avoid legal issues down the road.
The copyright laws do not protect ideas; they only protect the tangible expressions of ideas. That's one of the reasons why Windows looks so much like the MacOS. Microsoft is perfectly free to use Apple's design ideas, but it cannot copy Apple's code and must write its own.
If your beta testers give you ideas for improvements and point out bugs, they have no rights under the copyright laws to the ideas they have passed on to you, although they may have rights to the particular mail or email they wrote to communicate their ideas. So long as you and your company write the actual code to implement their ideas, you and your company own the code, and those who furnish the ideas do not. On the other hand, if your beta testers furnish you with actual code and they are not employees of the company, they own the copyright in whatever it is that they wrote.
One other area of protection involves trade secrets. Generally, if you consider designs, algorithms, source code, and the like to be confidential and a trade secret, you should not disclose it, to beta testers or anyone else, without a Nondisclosure Agreement. If you fail to treat that information as confidential, your trade secret protection may be forfeited.
The suggestion that countless earler posts have made, that you consult a lawyer and have some sort of agreement spelling this all out, is a good one. Although the copyright laws are pretty clear on these issues, it would have been helpful to have an agreement in place that spells it all out for your testers.
As should be obvious to anyone in this industry and indeed in this society, what's legal and what's right may be two completely different things. If you can honestly answer "yes", however slightly, to the following question, you should give the client due credit, which should include compensation (get a lawyer to help figure out the exact percentage):
"Did the client contribute some idea or insight that wouldn't have otherwise occurred to us and now is part of the product we're going to be making shitloads of money off of?"
If that's the case, then we ALL own IP of Windows - surely when that cute bug dialog in IE comes up, and we give them the automated feedback, we're participating in an exchange of IP. And IE is integrated into Windows, right, Mr. Gates? Really. Also, from experience, ALWAYS have a SIGNED contract before you give someone a program, even for money. ALWAYS.
Here's an idea worth literally billions of dollars -- and I'm deadly serious. Feel free to use it if you wish.
Create a 100% compatible clone of Windows.
I guarantee if you pull it off, you will get an instant 10% of the market. If you're smart, you'll be able to grow it from there.
And there you go! A great idea. But there's that little thing about implementing the idea.
I can give you dozens of good ideas. But there is a lot of truth in, "if it were easy, everyone would do it".
Sometimes it's best to just let stupid people be stupid.
Ah, but what if he starts posting the shit as AC? Then you can't filter him, again. :( Just thought I'd point it out.
Instead of wasting your time with a bunch of techie's opinions go see a lawyer and get an expert opinion - This is a legal issue after all.
In the realm of patents, you have no rights unless you are an "inventor." The test for inventorship is stated in the Manual of Patent Examining Procedure (available at The United States Patent & Trademark Office website) in section 2137.01:
"The definition for inventorship can be simply stated" 'The threshold question in determining inventorship is who conceived the invention. Unless a person contributes to the conception of the invention, he is not an inventor . . . .Insofar as defining an inventor is concerned, reduction to practice, per se, is irrelevant [except for simultaneous conception and reduction to practice, Fiers v. Revel, 984 F.2d 1164, 1168 (Fed. Cir. 1993. One must contribute to the conception to be an inventor."
The rights of corporations to have inventions assigned derives from the fact that they pay inventors to invent for them. Thus, unless your beta testers contributed to the conception of part of the invention, they are not inventors and have no rights. "[O]ne who suggests an idea of a result to be accomplished, rather than the means of accomplishing it, is not a coinventor." Ex parte Smernoff, 215 USPQ 545, 547 (Bd. App. 1982).
Copyright is different. Where patents protect functionality, copyright protects the expression. Thus, while you may copyright source code, someone else may write different code to accomplish the exact same result without infringing on your copyrights. However, for a beta tester to have rights in this area, they would have to contribute code (source or object).
Generally, beta testers are compensated for their effors through reduced license fees for the finished product (or even free copies). However, this is usually done before allowing someone to be a beta tester. Depending on the details on the situation, it may be well worth your while to consult an attorney who specializes in IP issues. The typical patent infringement battle, depending on the complexity of the technology and claims asserted, can run well in excess of $500,000. Fees in the multi-million dollar range are not out of the ordinary.
Laws affecting technology will always be bad until enough techies become lawyers.
- Programmers, software designers, UI designers, software engineers, etc. Yes, some of them are better than others, but most products are not so complex that you can't find lots of people willing and able to develop them.
- Business people and managers with the vision and persistence to create and stick with the product.
- Customers that provide lots of feedback and suggestions for enhancements.
Of those, for any good product, the customers are going to do most of the design and drive the evolution of the product.Unless laws in the U.S. have become even more obscenely distorted lately, I don't see why this is even an issue. Can I claim ownership to a painting if I told the artist that the sky needed a bit more blue?
Perhaps it would be easiest to claim that the bug they're reporting or the feature that's been left out is your original work and your properly. I suppose that that might make anything they might point out their intellectual property and also a derivative work. That way they wouldn't be poaching your stuff out from under you and they'd have full rights to their worthless little idea. Even the losers win.
A Transmission From PlanetJIM.[end trans]
Oracle's got the right idea. They charge out the ass for their Oracle Apps product line, which you are actually beta testing for them. They then make the customizations that you require and sell it to the next bunch of saps who don't realize they are now beta testers.
No, i'm not bitter. Why do you say that?
Well send me a beta, I guarantee you that any idea I have even remotely related the the game will still be my IP. I don't begrudge you the right to attempt to protect your product, but lawyers routinely try to create agreements that have more power than they are allowed. Believe it or not just signing an agreement does not make you 100% liable for every last term in it. There are many things that signed or not there are things that are just not legally binding in a contract.
I'm the big fish in the big pond bitch.
They do not own code to:
It needs to feel crisper
We want it more Friendly
I want the menu to say ?
Get a free ipod.
In fact, one of the big annoyances with commercial software (this includes Windows, Qt, etc.) is that they are harvesting lots of ideas from their customers and making money from it: customers end up paying for their own work. That's why it is important that people use free software and write bug reports and suggestions for enhancements: that way, the value of using software goes back to the users themselves, rather than to some business.
I am so sick of people who think we should consult a lawyer about every little thing. "You say you want to go to the bathroom now? That is a very serious decision, with legal ramifications your puny little mind cannot possibly comprehend. You better ask a lawyer..." I cannot help suspect that many of the people who spout these opinions so frequently on slashdot are in fact lawyers themselves, trying desperately to increase our already dangerous over-reliance on their services.
My advice is, if you have a contract with these people, read the rules of the contract and obey them, whatever they may be. If you did not have a contract, or if they are asking for something that is clearly not specified in the contract, you don't owe them squat. I am not a lawyer, but I don't need to be a lawyer to tell you something this simple.
First, like everyone's already said, call a lawyer that specializes in IP law (Wilson Sonsini, Cooley Godward, etc). Second, if you don't have your beta testers under an eval agreement, draft one and insist they sign it immediately. If they don't sign it, pull them from the beta test asap. My company had a similar problem. The most frightening part is the claimant has several years before they have to take you to court for whatever money they feel they deserve. So this company can sit back and wait to see if your company is a success. If you make it big in three years, they'll resurface and claim you owe it all to them. Do whatever you can to force the issue with this company sooner rather than later. If you don't get them to sign something that says they don't owe you a thing, this will hang over your company as you will have to disclose it to prospective investors, acquirers or underwriters.
Why on earth are you Beta-ing without contracts? In the contract, you should have a clause atating all implementation suggestions submitted bleong to you. You may as well put them in the Non-disclosure agreement you have them sign.
If you're not having them sign an NDA, you must really want all details about how the software runs, screenshots and etc. to wind up on the net.
Other than that, if you find, after talking to a lawyer, that the customers could get some rights to cash for suggestions, boot the troublemaker(s) from the Beta, and issue contracts (maybe via the EULA?) in the next update, which should be ASAP.
Of course, what their saying makes a difference too. If their comments consist of "D00d, yu|2 g4m3 5ux0r, g1v3 m3 c4$h l4m3r," they won't be much of a threat.
If they are giving you suggestions on funtions to implement (i.e. enemies, weapons, submitting maps) then they might be more of a threat.
The question: is your software that unfamiliar, uninteresting or bad that the testers would demand compensation for the testing process? Look at Blizzard! They have users nearly fighting to be in on the Beta! Look at Microsoft! They've had people pay to use buggy Beta versions of Windows!!!
> #include
> #include
> #include
> #include
> printf("Welcome to linux 2.5.4")
Hey, you can only call a function from within
other functions, and you don't have a "main"
function, which is a must, in order to compile
an executable (otherwise the linker with cry from
unresolved calls.)
Also, you need a semi-colon to terminate the statement
> run_unix()
As above.
Besides, why do you need four header files, when
you only use two foreign symbols (prinf() and run_unix() ) ?
And finally, why clutter your standard header file
directories, with project dependant header files?
Put these files in a directory local to the project,
and include them with ""s
this reminds me of the arch-nemesis in Cryptonomicon who screws up Randy's very first sofware sale (the RPG nutrition counter). "I helped you think of that, therefore I own half of it".
The only defense is a big evil lawyer of your own.
All Your Ideas Are Belong To Us
Heck, If they gave you a good idea which you implemented, why not share some of the wealth it will generate?
I've been in the same situation, having beta clients use software in development. I give them extra help so I can learn how the user reacts to my software and to find out what their needs are to make it easier for them to use.
They give lots of suggestions, 99% of which I have already thought of and either they are on my To-Do list, or the idea was discarded after realizing conflicts that they would cause.
However, once in a while they do have some good insights, and I welcome those ideas. I'm not under any contract to pay them anything, yet being a 'Good Person', I choose to reward them for their help. If your beta clients are in business (chances they are), then why not give them some cash that they can invest to help themselves grow, promote or advertise them extra, even buy lots of their products.
A Good Deed Repayed Never Goes Unnoticed!!
www.Beyond7.com Insane modern art water sculpture.
We're building a huge intranet tool, and that tool has some very cool org charts it can generate. At one brainstorming session, a person was throwing out ideas and then capped his suggestions with "of course, this is all my own IP, so I retain rights to all of it." Since we're thinking that this might someday become Open Source, asserting his IP was unacceptable.
Our solution? We immediately asked him to leave the meeting, took him off the invitations to future brainstorming sessions, and contacted our lawyers. I am VERY glad we kicked him out of the process within minutes of him spouting off about his IP. If he had stayed, we may have had to rebuild or drop basically anything he talked about. Now we can at least say that we're clean-rooming it.
My Greasemonkey scripts for Digg &
It sounds like your customer is more than a beta tester. From you discussion it sounds like they may have had significant participation in the design of your software. Depending on what design information you customer supplied the customer could have a financial investment way in excess of what would be expected from a beta tester.
For example several years ago our firm received a suggestions for improvements document from one of our testers. The document was 350 pages long and contained very detailed information including algorithyms and screen designs for the enhancement. The customer had obiviously put considerable effort into the document. Our own development manager estimated that it would have taken in excess of $100,000 to produce such a document internally. Our firm thought this made such a significant contribution to product improvement that we compensated the customer with free licenses for two years.
Your beta tester company is on crack. Just because they might've suggested new features, etc., means squat. You owe them nothing - other than a "thank you".
-- Ed Carp, N7EKG erc@pobox.com PGP KeyID: 0x0BD32C9B What I'm up to: http://intuitives.mine.nu
None of this stands up... ESPECIALLY if there is no contract. Often what we do is reward the beta tester with free/lower cost services... but we NEVER NEVER allow them rights to the software.
If you find this happening to you often, I suggest a simple non-disclosure agreement that must be signed before they can beta test. The agreement should spell out that (A) they can not disclose anything about the software and (B) beta testing does not give them any rights of ownership.
I'd also terminate the relationship with the company who is pursuing you, immediatly... and do not allow them back into your beta program.
why do people bother tring to help a moronic business person try to succeed?
the obvious solution is cut the person off and don't allow them to beta-test, unless they have written code that is not obvious to an expert in the field of computer programming that is used in your application then they have no legal right to you code..its simple.
If you're hiring them to test your product, then any work they do is considered work-for-hire, and is thus owned by your company. (similar to RIAA and it's artists - http://www.wallacecollins.com/workforhire.html)
If they're doing it for free, then that might not apply...
Regardless, they're just testing what you did. Their reimbursment is the money you pay them up-front... If they want a piece of the product then that would have to be negotiated up front.
...in the situation that I've seen before, which sounds much like what you're describing, it was simply turned around that they owed a significant custom programming and consulting fee with out source ownership rights.
The customer in question soon saw the insanity of what they were doing and realized that it had backfired. Soon enough it was back to business are normal. In this particular case, as it turned out, the customer dearly liked the software and was hoping to leverage this situation to achieve better rates (discounts) on their software purchase.
MY GOD MAN! Call a frigging lawyer to explain to them that they have *no* rights to your IP. That, and never let these imcompetent boobs beta test for you again. It's a *privelge* not a right...
Yes, actually, I've been through this situation. We had a meeting with the clients and finally, the project lead who was fed up with the situation stood up and said.
"Look, I can goto ford and suggest that they move the knob 3 inches to the left, it's a suggestion, it might make the car better, but it's only a suggestion, I didn't have anything to do with the actual moving of said button or considering the implications of moving the button, I didn't do anything, I just suggested something, if you wanna sit here, and actually get involved in this process and work like the rest of us, then you have a claim, but until then. FUCK OFF."
Go to the web. Find some EULA that you like. Copy/Paste. Tweak it how you like it, and pay cheap lawyer $200 to finish it.
Make sure the EULA covers your ass 5 ways from Sunday, and 10 from Monday on.
Less than a month's colo hosting, and a day or two of time, and it's WELL WORTH IT.
This should'nt be "Ask Slashdot", this should be "Ask your lawyer".
-Ben
Well, since I help test Linux by the meer fact of installing it and filing bug reports does this mean that Redhat owest me money? I didnt sign any document with them thus I think I should get a part of the profits from the sale of there CD disk.
If Microsoft does not charge you to beta test.. why did they insist that I pay to beta test Windows XP? (as if anyone in their right mind would PAY to TEST yet another MS OS)
Reality is in the mind of the beholder - me 1996
or even here in the great white north, but my wife, who is a litigation lawyer, has always made me get a signed contracts with beta testers stating explicitly who owns the work, me, and what they get for testing, cheap software and free support. Though at the time we started writing up these contracts there was no case law dealing directly with IP right of software and beta testers, there were cases that suggested an arguement could be made in court for part ownership. As she said to me it is better to be safe than sorry. I know I have had some good suggestions from testers that are more than bug fixes, like changes to business rules or how the interface works. If these suggestions are documented that is enough to convince a judge that they should have some IP rights, because they will not side automatically with the supposed create/developer of the software. They may look at it like a consulting job where the client owns the software and the developer is just a grunt.
Developers assume too much about who owns the code they create, and the courts here are willing to decide either way. There was one court case that I am aware of that a web developer lost rights and didn't even get paid for a web site he developed. He didn't have a contract that stated ownership or payment for a site he developed, but because he put it up on his clients web site, before getting payment, dumb, the court said the client owned it outright because the code was on his site.
Again, like has been said earlier, get a lawyer and get their opinion. If you don't have this stated in writing then you may be forced to let the judge decide ownership if your lawyer thinks you have a case that is defendable. It always comes down to the judges interpretation of case law. If you don't want to see a judge than contracts should be written up by a good lawyer before any work is done. Even lawyers can make undependable contracts, so that is why it is important to find one with experience in this area.
now, if I get paid... good. If I get some stock or percent of sales... good. However there is nothing that says that they OWE me, no more than anyone really OWES me if I help them move. Sure it would be nice, but lets keep our heads on now.
That said, as a company manager (or project manager) of a product that was entering beta, I would want to provide incentives to beta testers. Perhaps they would get discounts... perhaps I would give them money or percentages of sales... perhaps I would merely put their name in the credits (if there is one). Whatever it is, it would be spelled out in a contract. If I don't like the terms asked for by a potential tester, then I do not have to let him/her test. If as a customer, I do not like the terms of the test, then I do not have to test. Unless there was a clear (and most likely written) indication that testers would receive some monetary compensation, then I don't believe that these complainers have a leg to stand on.
Practice your freedom of choice.
I seek not only to follow in the footsteps of the men of old, I seek the things they sought.
Then I talked to a lawyer. I spent about US$1,500 in legal fees that year (not a whole lot), and it took care of all the issues revolving around the IP.
Read the subject.. he said "in the good ol days". I don't think WinXP is that old...
"They believe that they deserve rights to parts of our software because they have helped give us advice through the development process."
They are correct if you used any of their suggestions. The original copyright is yours, and the copyright in the derivative work is shared, unless you specifically stated otherwise in the beta test contract. Otherwise, copyrights automatically vest with the creator, and a WRITING is required to assign, transfer, sell, or otherwise prevent this. Beta Test agreements need "Work for hire" or similar provisions.
-Anonymous Coward Copyright Lawyer (Yeah, some of us bottom-feeders read Slashdot.)
Sorry, but no. The original is copyrighted by the original creator. Derivative works are the property of whoever created the derivative work. It's possible that the derivative could not be distributed because of the original artwork's copyright, but the original artist does not own the derivative work- only the original.
The contract you wish you had used is called an Input Agreement. It basically means that if they give feedback or input on your software, that you can use those comments as if they were your own.
You may have other legal avenues as mentioned by other posters, but this Input Agreement thing is what you should use in the future.
--Jaborandy
(IANAL, so I don't care what you do with my advice)
You really should be talking to an attorney, not the Slashdot audience. Your beta tester is full of shit on legal grounds, he's just plain out of luck, doesn't even have a legal peanut to stand on. But that's neither here nor there. You need to hear this from an attorney.
C//
The beta testers now own your software, just like I own Pepsi after taking the Pepsi challenge.
So you decide to write a book about the social aspects of slashdot. Well, without slashdot, this wouldn't be much of a book. Without all those people contributing to the social environment of it, it wouldn't be much of a book. While certainly there is value in your creative interpretation of what you witness, it doesn't exist in a vacuum.
I'm not suggesting that the idea itself can be protected. What I'm suggesting is that copyright exists because it recognizes that the content produced comes out of a community of ideas, and thus should return to that community at some point and hence the limited term.
This sig has been temporarily disconnected or is no longer in service
Here's a tip for would be beta testers who want a piece of the pie... DON'T BETA TEST!
:) But you know, I didn't test the duds as thoroughly as the software I was excited about, so I was actively choosing which projects got the lion's share of my time, leaving me really no reason to sue anybody. I had fun, they got a tester. Sounds like a good trade to me.
If you are a volunteer beta tester and the product you worked on goes gangbusters, can't you just be content knowing you made the product better? And if you volunteered, doesn't that mean you had some interest in the product anyway, apart from any dreams of compensation?
I've done beta testing for other software companies for years (Microsoft, Activision, and Disney chief among them), but I never really asked for anything in return. In some cases, it was just cool to have that kind of input into a game or an OS. In other cases, when the test was over, I got a free copy of the software. Hooray for me.
Of course, some times you get some real duds. My name is in the credits of more than one edition of Big Game Hunter, and I'm not proud of that fact.
The confusion I think is that people who volunteer are suddenly feeling entitled to something more. That, to me, negates the spirit of 'volunteer'.
Been there, done that, paid off the lawyers.
Our NDA (non-disclosure agreement) included a note about ?exclusive intellectual property? as a result of any development directed by testing feedback.
Basically, the clause states that unless the tester is made a development partner (at totally separate process) then we can accept bug reports, but not recommended code changes. Any changes WE made to the code remained our IP no matter the source of change.
I hate to say it but you need to either:
a) drop these people as testers
b) call your lawyer
probably both
Even if you don't have this in your NDA the argument remains valid as long as you have not accepted source code.
Go ahead and mod me up. I dare you!
I wrote code for a living.
What is this "beta tester" thing?
What's a sig?
Essentially, what they did has less to do with their claim than the conditions under which they did it. There was a contract (verbal or otherwise) wherein they agreed to use the software for the purpose (expressed or implied) of finding errors and malfunctions in the software, and reporting those back to the maker. In exchange, they got free support, free product, and other caveats. If they did not stake a claim to IP resulting from their efforts prior to their performance of the contract, then they are simply not entitled. Further, any attempt to modify a contract without the other parties consent after the onset of performance usually voids that contract (at least as I understand it in most states).
More importantly, let this be a lesson. If you've got software that might possibly in any way be a big money opportunity, and you're not inclined to release it under a GPL, then always release betas with a highly restrictive End User License Agreements (EULAs), and also have your beta testor consent to a Non-Compete/Non Disclosure Agreement which binds them for as long as allowed. I sell car parts for Shelby Cobra sports cars, and even though any idgit can cut a piece of sheet metal after a pattern, I make sure to use a NC/NDA before I do business with any machine shop, lest the machinist get the idea that he's going to sell my designs or make his own parts (I'd really hate to have to reengineer their knees).
IANSWIAALON, I Am Not Saying Wether I Am A Laywer Or Not. All these disclaimers are starting to piss me off. Of course we are not lawyers here, lawyers have a life and don't post on /.
;o)
Now, I'm sure the person understands that (s)he should contact a lawyer, but in the meantime, some feedback from the industry never hurts. In fact I'm also sick and tired that everything has to be settled through lawyers these days. You'd think some common sense would go a long way.
Some things that may help you persuade them to get there heads out of their asses:
First of all, ask them what they consider Intellectual Property in the first place. In fact only very few things fall under IP.
One of the things that does is code (software). However, code falls under normal copyright law, and as such the copyright is by default (so unless you contractually signed it over) owned by the person, or company, that wrote it. Generally beta-testers do not contribute to the code, so they own no rights to it.
Providing an idea/suggestion or finding a bug has nothing to do with this. In fact, even if they patented the idea they provided, they have NO right to the code. You could have to pay them royalties, but that's a different issue.
Patents are also IP, and if you patented something that was their idea, well, yeah, then you may have a problem. The thing is though that a patent is by definition public, so the only rights you'd be talking about are monetary.
Ideas ARE worth something. I keep a book of which the pages are numbered, and if I have any ideas I described them in there. I let someone read the book and sign off on it, every once in a while. The reason for doing this is twofold, but boils down to 'prior-art'. If ever someone patents an idea that I had before, I can prove I have prior-art. Also, because I deal with a lot of source code from third parties, if they ever claim copyright infringement, I can prove I had these ideas before I saw their source.
Basically, they can do with the ideas they provided whatever they want. As a joke you could pull out all the lines of code (although, again, I don't think they have rights to it) that where based on their input (but nothing else). And present that to them. See how useful that is.
As far as I know, my current IP rights are to 141.154.81.215....
My life's goal is to get a score of +3!
Has this beta tester helped you a lot? If so perhaps giving them a job offer is in order if it is signfigant(spelling?). If not and they are becoming a drag on the testing process, then remove them. You can't exactly remove any copies they already have but you can cut them out of the loop for new tests. If they distribute the beta copy they have then you probably could sue them for it or press criminal charges(although IANAL).
Usually for beta testing software there is a very large potential pool of people willing to help you. If you have a problem with a few then just kick them out and get more. Overall your goal is to make the product better, if they aren't helping you get there then remove em.
Sure, you don't need a lawyer -- until they sue you because their lawyer interpreted a part of the contract differently than you did (and because their lawyer is trained and educated in this kind of thing, take a guess who was the one that misinterpreted ... hint: not the lawyer). So now, you have to pay a lawyer large legal fees to represent you in court. Or are you going to do that yourself, as well? If so, now you lost the case, and you have to pay an even larger sum to your client, as well as following whatever was decided (in this case, likely giving the client your intellectual property). So, rather than spend a few hundred for legal consultation over a contract dispute, or a few thousand for legal representation because you didn't get the consultation, you end up paying millions and give away part of your intellectual property. But that's better than paying a lawyer, right?
I'm sorry, but if you were the CEO of any company I was working for, I'd quit post haste, and encourage all my co-workers to do same. It may suck, but retaining legal consultation and representation (AKA, lawyers) is as much a part of good business practice as is treating your employees well.
I am selling my house. I ask you, my neighbour, "What color shall I paint my house?" and you reply, "It would look very nice if it where blue..
So I paint the house blue, and the very next day I sell my house for $250,000 (USD)
Do I owe you a cut for suggesting I painted it blue?
Reality is in the mind of the beholder - me 1996
I've created a number of beta agreements over the years. While they are often forgotten, they are extremely important, not only because of the intellectual property concerns (whose idea is it?) but because beta stuff can crash machines and damage data.
Here are the basic questions any beta agreement needs to answer:
1) How will the beta be delivered to the tester?
2) What are the beta testers expected to do, and by when?
3) What potential problems should the tester expect?
4) How long will the beta test last?
5) Who owns the results of the beta test?
6) How, if at all, will the beta testers be paid?
7) Is the beta to be kept confidential and, if so, for how long?
Like all well-written agreements, it should also disclaim any warranties (promises) the developer doesn't want to make, and list the jurisdiction whose laws will apply to any conflicts.
A quick search for "beta tester agreement" in Google will yield many examples from which to choose.
Jonathan I. Ezor, Esq.
Author, "CLICKING THROUGH: A Survival Guide for Bringing Your Company Online" (Bloomberg Press 2000)
Watch for Jonathan's E-book series "Less@Risk" coming soon!
I'm surprised that you'd ask the slashdot community. They might GPL their responses and that could work it's way into your code...
I've had limited exposure at my job to a US Federal Program Called a Small Business Initiative (SBI). This program allows the Federal Government to fund a private company to help make it's product, preferably for government use. The Government is the target user and supplies both money and usually assistance. When the product is complete, the small business retains the copyright, patent, and trademarks, and the government still has to buy the product.
The whole point of the program is get much needed items and software developed that don't currently exist. This isn't exactly your situation, but it provides a precedent of how a customer supplying a lot of resources does not own any rights to the product.
You missed the subject ot the post you replied to. The ``Good Old Days'' for users of Microsoft products ended a lo-o-ong time ago.
CUR ALLOC 20195.....5804M
Now, I am showing I'm really old, like when 64K was lots of memory.
Fight Spammers!
The only rights they would have would be if they were hired beta testers, but even then the only right they really have is to wages. Otherwise as a volunteer, they were not obligated to give their time, therefore you are not obligated to reimburse them. For a look at a Beta Test licence that seems to work, check Ambrosia Software
T Money
World Domination with a plastic spoon since 1984
If those people really were working for you, there would be a tremendous number of legal and tax implications. Even in the case of something casual like a beta test -- especially if you present it with such uncasual contractual terms. You can't have it both ways, and I know you aren't filing 1099's on those people, giving a monetary value to your bartered transaction, or otherwise living up to your duties when receiving hired work.
Well, actually you can have it any way you want when you only expect use the law to bully individuals, which is all I expect that contract could ever be used for.
If you think you're wasting your time and not getting anything in return for it (better-quality software, or the satisfaction of helping other people also affected by the bug), then don't do it!
"Biped! Good cranial development. Evidently considerable human ancestry."
What a wunch of bankers. (1) Ok, so they own part of the project. Drop it, and claim it cost the company millions of dollars. Since they own part of it, they owe you big time. (You may be able to use some of the code in a new project, perhaps this one will be successful...) (2) Their time means they own some of your business. Ok, so your time equally means you own part of their business. Agree to an equal share (or equal percentage share, depending who is bigger) of each other. (3) Tell them to check their filesystem off, drop them as testers and refuse to do business with them until they pay you large $$$$ - perhaps as consultancy for implementing their requests. Hey the co I work for sell software then charge people more for configuring the thing.
Every Beta I have participated in mentioned (in the part of the contract that I actually read) that they have are not relinquishing any rights and are the owners of it all....
What did you have in your license agreement / contract with your Beta Team?
http://www.google.com/profiles/malachid
The software industry need to pull it head out of it's ass and give credit
where it is genuinely deserved.
When you have an industry asking the consumers "where do you want to go
today?" What is really being said is that we of the computer industry have
our head up our ass so bad that when don't know what to do next and we
want you to tell us in this poll that only we will see the results of (IE>
MS vs. DOJ - no more public information via the media, once the public
comments have been entered....)
And what we in the computer industry are going to do with the result is to
turn around and tell you that you are stupid and we are smart as we then
empliment what you told us to but as though it our genuis.
It is out complete intent to abuse the fuck out of the consumers and to
entrap them into our game of taking from the consumer everything we can,
for free....unless we can do an MS and even get them dumb funking user to
pay us for their ideas and our bugs.
The computer industry doesn't own anything of any value that they didn't
steal from someone else.
And to insure the competition stays cntrolled, keep the software
production tools really really stupid.....
Programming is the act of automating complexity that is made up of simpler
things. It is done so in order to make repeatable use easy for the user.
Interesting how the Software industry can't seem to automate their own
field but can automate any other.
The computer industry is a very Consumer Entrapment Abusive industry and
it is made up of those who practice the art of abstraction manipulation.
Not at all unlike the profession of laywers, which explains why they seem
to get along so damn well with that profession.
But all of this is going to change, as a genuine science of software
states that auto-coding, the automation of code generation, is very
possible and has been for a long time. It's only just been avoided, due to
what can be summed up as job security.
Create a 100% compatible clone of Windows.
I heard the Ukrainians got into trouble for doing just that....
They have a very valid point actually. I beta test software for a copy of the final product and usually agree to give the company my ideas.
I went to a IBM focus group where they picked our brains for AIX/Linux suggestions and ideas and we signed a contract that gave them ownership of the ideas in exchange for pay, lodging, travel expenses, etc.
always get it in writing if you want ownership of the ideas.
It depends. Call a lawyer.
Clearly, it depends upon the exact facts of the commercial relationship between the developer and beta tester. It depends upon the specific nature of the advice and the circumstances under which they were given.
It depends upon so many things, that anyone who tells you the answer is clear on the outline provided is clearly just selling something. I *AM* a lawyer, and I am here to say this: that right now you need to stop asking general advices of the technical community and begin speaking to a competent lawyer upon whose advices you can reasonably rely.
This much is certain, these issues will ALWAYS be more expensive after they have exploded than beforehand. The time to call a lawyer was when beginning to distribute the software and disclose the object code to third parties.
Then, as now, there is only one answer to this question:
It depends. Call a lawyer.
The patching comments have brought up a slight niggle in my mind...take this example:
:)
If you had a bug in the code where a comparison was accidently = instead of ==, and someone submits a patch fixing this small error...and you correct it off your own back...could they still claim that they own IP on the product? even though it was so simple to fix u really didnt have to use there patch...
If this sounds stupid then flame me, but really this is what is lingering in my mind
"What do you mean you have no ice? Do you expect me to drink this coffee hot?" - Random Customer, Clerks
Wait a minute - your startup DIDN'T have a beta test agreement BEFORE you started this process?!? I think I'll withdraw my funding now...
Its all very well saying seek legal advice, but sometimes that can be as damaging as doing nothing. This person quite obviously doesnt have a leg to stand on, and going to lawyers is only going to make him/her think your running for cover. This is not a grey area here, this person is trying to grab a piece of what isnt his.
Bongpig out
No, the problem here is the vagueness of your idea. A good idea must be specific.
"World peace" sounds great too, but ideas that are usable/marketable have to be much more specific.
If you have a well thought-out idea of how to accomplish the goal of building a 100% compatible Windows clone without infringing on existing copyrights - then you have something!