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Ideal EULA for Custom Software?

Posted by ryuzaki0 on from the licenses-everyone-can-be-happy-with dept.

Tiger4 asks: ""End User License Agreements (EULA) for custom developed software present a nasty problem for both developers and the customer. What rights does should the developer grant to the user, and what rights should be retained by the developer to capitalize on their effort? Similarly, the customer, who is paying for the work, wants all the rights possible to maximize their investment, but probably only needs a small subset of them, such as maintenance and upgrades. The developer probably wants to be able to re-use and resell chunks of the code; the customer doesn't want single source lock-in, so they want re-use and alteration rights too. The Open Source licenses don't solve all ills, because some processes and data may be trade secrets, or at least closely held in an industry. So what terms should definitely be in a EULA, to provide both maximum flexibility and protection for both developers and customers?"

3 of 72 comments (clear)

  1. None by Bogtha · · Score: 3, Interesting

    what rights should be retained by the developer to capitalize on their effort?

    None whatsoever, the client should retain the copyright. The developers have already capitalised on their effort by being paid. Rephrased, the question is more like "What's the most profitable way to avoid giving the client what they paid us to create?"

    Similarly, the customer, who is paying for the work, wants all the rights possible to maximize their investment, but probably only needs a small subset of them, such as maintenance and upgrades.

    And what if they want to sell licenses to others to offset the cost they incurred?

    The bottom line is if somebody pays you to create something to their specifications, then it's a work-for-hire, and they should get the copyright. If you want to re-sell the work that they've already paid you for, then you should pay them for a license.

    --
    Bogtha Bogtha Bogtha
    1. Re:None by belmolis · · Score: 2, Interesting

      I agree that this is sleazy if it isn't up front. One situation in which it makes a lot of sense for someone to be hired to write a program but retain the rights to it is one in which the purchaser doesn't have a lot of money and the program is one which, perhaps with adaptation, will be useful to lots of people. In this case, it makes a lot of sense for the developer to charge a relatively modest fee for writing the program and granting the client a license for it, while retaining the ability to provide the program to others.

  2. The only question is copyright by stinerman · · Score: 2, Interesting

    EULAs violate the doctrine of first sale. You can't license software any more than you can license a book. The GPL, BSD, and other such distribution agreements are not EULAs and are certainly fine.

    Now, your only problem is to whom the copyright will go. The law says that a work for hire should go to the person who did the hiring. I don't agree with that, but its pretty much settled.