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Copyright vs Exclusive License?
cdanzig asks: "My company recently hired a development house to do some contract work for us. They did great work, but they are claiming that they now own the copyright on the code and are issuing us a permanent and exclusive license. My bosses are concerned that this will hamper our ability to make changes to the code or prevent us form being able to claim the software as a company asset. What is expected protocol between a client and a development house? What is the long-term difference between owning a copyright and owning an exclusive license? If we paid for the development of the code, is it fair for us to demand ownership?"
Perhaps they bought a salable license to a library that they used to build the code they are selling you, thus they can't sell you a copyright they don't own. Double check that their coders wrote 100% of the code.
All ideas^H^H^H^H^Hprocesses in this post are Patent Pending. (as well as the process of patenting all postings)
I don't know that getting a strongarm monopoly is the only reason that these guys would desire to maintain some rights in the copyright to the code they created. They may very well recycle snippets of code from project to project, and don't want to be put in a position where a former client finds out that they do so, and then claims that they're infringing on a copyright for code that they themselves wrote. I'd certainly not want to find myself in that position.
There has to be an agreement to share rights in the code. The best position to be in would be joint ownership of the copyright. That way, both parties can do whatever they want with it. IF this isn't a simple work-for-hire situation, that seems quite fair, unless the customer is willing to pay a lot more money to the developer for sole ownership of the copyright, who then be saddled with the need to reinvent the wheel on future projects.
Hm. This is pretty basic material about negotiation, something I'd expect any manager to know, not just a corporate attorney. A while back I had some stockholders in a small business of mine threaten to bring suit. Not because they had a real complaint, but really just to get more stock out of me. It turned out they were playing "who will blink first". My side won. But it taught me that this is not limited to corporate attorneys at all.
Bruce
Bruce Perens.
It's a safe bet that, as a user with a four digit user id, he knows who Bruce Perens is and is less than happy to see that kind of "do what you can get away with" advice from him.
Obviously, a lot depends on what they did sign. But assuming they paid the company to write the code, that would clearly seem to fit the definition of "Work for Hire", and the contractor would need to prove that it wasn't by the wording of the original contract, and if the person who signed that contract did not realize that clause was there, thats potentially reason to nullify the contract.
Most likely the author now wants to resell his work to someone else, and needs to assert ownership of the code to make sure your company doesn't come back and lay claim to all subsequent works based on that code he wrote. He needs to compensate your company for that right, though it could be as simple as a lifetime of free upgrades/rights to new code.
Contracts aside, what would help make it not a work for hire:
* It was extended from earlier work (ie he produced widget-plus off his pre-existing widget, where widget is a significant part of widget plus)
* He charged under market rates for its development (ie you knowingly did not bear the full cost of development)
So does anybody have a magic solution that gives the client the right to use the original work that they've paid for, without the developer having to give up the rights to every last generic utility class they wrote, and consequently having to clean-room their next project, lest the original client sells out to a litigation-only troll company?
(Yes, but apart from that, Dr Stallman...)
The amount of dilligence that can reasonably be expected from a developer rather depends on the length and scale of the project - if its a 5 year project to write a new operating system that's one thing, but if its just a 6-week website job the client can hardly expect to pwn your browser-sniffing code...
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.