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Ask Slashdot: How To Own the Rights To Software Developed At Work?
New submitter ToneyTime writes: I'm a young developer building custom add-ins for my company's chosen SAAS platform as a full time staff member. The platform supports a developer community to share code and plug-ins with an option to sell the code. While I don't plan on having a breakthrough app, I am interested in sharing the solutions I create, hopefully with the potential of selling. All solutions are created and made by me for business needs, and I aim to keep any company's specific data out. I have a good relationship with management and can develop on my own personal instance of the platform, but would be doing so on company time. Going contractor is a bit premature for me at this stage. Any advice, references or stories to learn from?
Ask your boss. You no doubt signed away the copyright to the code you write for work, so you'll likely need explicit permission from them. If whatever you're doing isn't something that interests them from a business perspective, they might just let you do it.
My previous and current employers have allowed me to Open Source the generic non-business-critical software I write. Beyond just making me happy, one of the reasons I gave them is that any improvements I develop outside of work will be able to flow back in -- it was a win-win.
You are putting nothing into this other than the time you are spending to produce the code, and that time is being paid for by somebody else.
He is presumably putting the special efforts of his own brain and creativity into it; which is not merely hours of manual labor.
And presumably the work he is creating is useful to the employer, so they should be satisfied to be able to use the work he is creating.
Some companies might be willing to negotiate rights ownership of the product to the developer, in exchange for an unlimited license for the company's internal usage, And reduced pay for the developer. E.g. "Your pay will be reduced by 50%, or you the developer will pay us a big lump sum, but in exchange, you will own the software you create and we only get a copy of the source code a non-revokable, unlimited, non-exclusive transferrible license to use, modify, and prepare derivative works of the software for internal usage by us and our private business partners, revenue generation and our internal commercial purposes."
On the other hand..... the copyright and the rights to sell a copy of the software to someone else or redistribute it is negotiable, and by default rests with the employer in the absence of an agreement. Often, the employer might want to keep the software confidential and private for their competitive advantage.
The employer won't necessarily want to give up this right of exclusive ownership; if they're paying for the work, most companies would expect to retain the ownership.... they could just hire another programmer who would (in their opinion) do the same work and leave full ownership with the company.
This guy just needs to buy his work back from his employer.
Despite what appearances may suggest, his employer is not his friend. His employer is there to profit from his work. So he just needs to make his employer a financial offer they're likely to accept, and then see what happens. Everything potentially has a price. Everything is negotiable.
I wish I had mod points to give you more boost.
first thing I said was "holy shit"
then I was after reading, No way....
I can not believe what I read, but your advice is solid,
go independent and consult and try to keep the
IP rights.
as a past employer, I never let any consultant keep
the IP rights. but I bet their are suckers
Just look what happened to Hoboken NJ when they did not
renew the software license for the automated parking garage
it stopped working http://www.govtech.com/magazin...
funniest thing ever
if you see me, smile and say hello.
Get a signed contract, written by a lawyer. Don't expect anything else to hold up in court.
While partly true, many States have extensive law about how these things work, and without a contract you're automatically using that default system. Depending on your State, those default rules may leave you better positioned than any of the contracts a company's lawyers might agree to. In States with good protections on both sides, it can actually be the most protective situation for the developer!
And if you're in one of these States, don't expect that signed contract to stand up in court; much of it might be superseded by the law. In my State for example, a typical 5 page employment contract probably only has 1 or 2 paragraphs that are enforceable and the rest is gobblygook that is included because the lawyer uses the same contract regardless of State.
as a past employer, I never let any consultant keep
the IP rights. but I bet their are suckers
They (and you) probably just don't realize they own it all, so it will never come up. ;) Unless you had a separate assignment document, and you actually paid them extra for the copyright, they still have it.
The most common mistake is trying to include the assignment in the main contract. Not valid. The next one, and this gets almost everybody, is that without some consideration (money) given in exchange for the assignment, it isn't a valid contract. If all the money that changes hands is based on the work, then there is consideration for the part that gives you an implicit license, but no consideration for the copyright.
A lot of people just assume that because they handed a lawyer money and signed paperwork, that everything is legal and enforceable. But lawyers are often not as good as that. And, with something like this just having the lawyer keep explaining it all to the client long enough for the client to understand it would triple the cost. In order to be competitive, they don't drag you through the whole process; just the parts they think you'll need. The contractor isn't likely to mess with you over this because for various reasons, so they don't dot the i's or cross the t's.
If he was a hourly laborer, doing the work after hours would be enough, but for professional work that just doesn't help. It would have to be both after hours, and also unrelated to his work. He can write linux device drivers or something, but replicating the stuff at work... they own that too.
You are conflating two different yet semantically related things.
"Work For Hire" and "Works For Hire" (sometimes referred to as "Works Made For Hire".)
Work For Hire refers to the actual work done by an employee/contractor that has been designated as falling upon the IP rules of Works Made For Hire.
Works Made For Hire is part of the the IP doctrine of copyright law.
If you are a contractor, and you do not have the money nor legal team to fight off an IP assignation case, you must carefully and clearly stipulate who owns what IP REGARDLESS OF WORKS MADE FOR HIRE. It IS ambiguous, and a contract lawyer will tell you - do not leave it up to interpretation outside of your contract..
I had a contract just two years ago that ran into an issue where the client (and their a**hole lawyer) were getting confused because I was going to provide them a solution that was built off of some code of mine that I owned all of the IP for.
I clearly delineated that they would own the solution, but that they were only receiving a license to use my previous inventions (and here's the part they choked on for a while) and any necessary extensions to my product that were necessary in order to provide them with a solution.
Their lawyer spent weeks arguing that they needed to own the changes I made to my existing product. That didn't happen...
So, as anybody who has dealt with an unfriendly lawyer would tell you - don't ASSume anything. Don't assume they won't be jerks, that they're not idiots, that the court isn't stupid, that jurors aren't stupid, et cetera ad nausem. Make it clear in your contract, as in 'clear to a 4 year old', who owns what, when, and for how long.
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