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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?
Get a signed contract, written by a lawyer. Don't expect anything else to hold up in court.
Let me get this right, you want to be paid by your employer for your work, but still own everything you produce. 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.
So where is your skin in this game?. Sounds like you want somebody else to finance your enrichment.
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.
That doesn't matter. As an employee of the company the work you do for the company belongs to the company unless you have a contract that says it belongs to you and not the company.
If you have such a contract, it doesn't matter where you do the work.
Most companies will try to get you to sign a contract that says any work you do that's even remotely related to the work you do for the company belongs to the company, even if nobody at the company asked you to do it.
For some people, freedom to own your work is way more valuable than pay. If that's you, you need to negotiate a different working relationship and probably employee is not what you want.
I'll bet if you read your employment contract carefully, you'll discover that any intellectual property you create while on the clock automatically belongs to your employer. Some places claim ownership over your private projects done off the clock, although I fail to see how that would hold up in court.
So yea, the smart money is on not doing personal projects on company time.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
IANAL. If you really want to explore this, though, you should get one. Your employer is paying for you to code on company time. It is reasonable to expect that anything you develop on company time becomes the property of the people who have paid you for that time, especially if you are using company resources to do so. Why not develop your own projects at home on your own time? There's much less room for a theft argument if you use your laptop, your internet, your tools and your time.
This is very easy. By default, anything you create - or even imagine - during business hours or in execution of your duties is 100% owned by the company. In fact, if you produce something at home and you can't show clean room separation between systems and code between your personal code and your work code, you're not likely going to keep the rights to that either.
You know that part of the employment process where they ask you to list all your prior works? This is them giving you a chance to CYA. Granted, the legalese on that page usually states that you're allowing them to use it for free in perpetuity if you include it in any of your work at the company, but that makes perfect sense Think utility libraries you carry around with you from job to job. They don't want to own them, but they can't risk having their products 'poisoned' by arbitrary licensing.
In fact, there's even a case where a guy had an idea, spoke to a co-worker about it, discussed it with his immediate superior and they decided not to follow up on it. After he quit the company, he started work on it himself, and was getting ready to finish/sell it, when he was sued by his prior employer. Because it had been 'developed' (thought of, even if it was never written down) on company time, the judge sided with the company and full ownership was given to them. He had to finish the program and deliver it and the mechanisms required to build and distribute it to them, without malicious sabotage Forced to write code for free, for a product the company didn't even want.
So! The only way this is really going to work for you is if you speak to your legal team and management.
I have, in the past, approached my manager(s) and asked permission to work on side jobs which were clearly and 100% outside of the scope of my current job; working on banking applications while I was writing automobile inventorying software, and was given permission. Got a signed statement, and I was good. Did open source work on the side as well, for a game engine, again, no problems.
However, it's extremely unlikely that anything you do at work will be allowed to be owned by you. No company likes giving away potential revenue and adding competitors with insider knowledge. I mean, really unlikely. Like, I can't even comprehend how you think it's a real possibility. Getting the company to go along with an open source thing might be one possibility, but an employee getting ownership?
Think of it this way: You work as a mechanic in a garage. You have access to all the tools and equipment there. You decide that you'll start your own business, in that garage, fixing cars, but you'll keep all the money instead of giving it to your employer, while still using his equipment and space. You still expect him to pay you for the hours you're working there.
Can you really see this happening? If so, you may need to lay off the cough syrup, cause we're all worried about you.
But get this through your head: AS AN EMPLOYEE EVERYTHING YOU PRODUCE IS OWNED BY YOUR EMPLOYER -- THAT IS WHY THEY ARE PAYING YOU -- THEY DO NOT PAY YOU BECAUSE THEY LIKE YOU -- THEY PAY YOU FOR OUTPUT
Got it? If so, please share with the rest of the entitled butt-hurt millennials who think they got a job solely because they "deserve it".
Resign and start consulting NOW!
Where do I start with this? You signed an employee agreement. What rights does it give you? The company is paying you to develop code, provides the compute infrastructure, provides the business motivation based on their own research and enables you to improve your knowledge and skills. You are unwilling to leave your job, so you don't accept any risk. Yet, you ungratefully want all of the benefits of the code. You don't even seem willing to share a possible new revenue stream with your company. You are quite the piece of work.
That depends on what state he lives in. Several states (e.g., Kansas, among others) have laws which state that work done on your own time with your own resources is yours, and any contract clauses which state otherwise are null and void.
As always, OP should consult a lawyer, as even if such a law exists in his state, there may be finer details which could still prevent him from developing his plug-ins.
"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
Since you're doing this on the company's nickel, it's known as "work for hire." You have no ownership rights. Also, since you're developing this using their resources on their time, why would you expect to be able to resell it when it's clearly their property? That would be like being hired to make donuts, making a batch with your boss's ingredients and tools while being paid, and expecting to keep the profit.
This might qualify as one of the 10 dumbest "Ask Slashdot" questions going. If it's a troll, it's working.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
While you still know everything!
Never answer an anonymous letter. - Yogi Berra
Every consulting contract I've signed has an IP assignment clause. So, even if you do consult, make sure you negotiate your terms wisely.
You should be fired.
The company is paying you a salary, benefits, possibly sending you to training classes, etc. Everything you do on their premises belongs to them. Period.
If you are preoccupied with trying to figure a way to profit from THEIR software (that you write on THEIR dime), then they aren't getting what they are paying for.
Quit and start your own business.
In fact, that is great advice regardless. Take the chance now before you knock up some unfortunate woman and are saddled with a mortgage and child rearing expenses. You can live with your parents, friends, or your car if necessary, your family can't.
If they are paying you a salary and providing you with a salary, and possibly training, they should own it. After all, that is your job. You may want to ask them to patent it. Having your name on a patent s good for a resume.
putting the 'B' in LGBTQ+
'Good relations' with management go quickly downhill once you reel in the money and they don't get a major cut.
Don't tell anybody, do it on your own machine and sell anything under a nom de plume.
You forgot the last 2 steps.
2. Get caught for defrauding your employer.
3. Go to jail. Do not pas Go! Do not collect $200.00!
Oh, and then there's the civil suit.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
I don't think he is confusing anything. If you use company resources, that company can claim it was a work for hire and claim copyright ownership just like they do for the work they pay you to do whether they commissioned it or not.
Sure, you can fight it in court, possibly win, but while costing you crap tons of money while being unemployed at the same time. Oh you think you would still be employed after being fired for misusing or theft of company resources and actively in a court battle over who owns the rights to the product of that misuse or theft? I doubt it but hey, maybe you don't need to work which begs the question of why not just quit and make the apps and not worry about it altogether.
For all practical purposes, anything you create at work, or relating to your work, will in all likelihood be claimed by your employer and there isn't much of anything that can be done about it.
Well, Young Developer.
You're going to have to understand the term "work for hire" -- which basically means in most cases when you work for a company and do stuff for them, they own it, and not you.
You might be exceedingly lucky and find an employer who will sign off on that.
But for the most part, your employer doesn't give a fuck about what Young Developers want in terms of ownership of code.
Why would a corporation be paying you to develop stuff for them that you're going to turn around and sell to other people.
Only someone young and new to the industry would be so self entitled as to ask what you're demanding. Because the laws surrounding "work for hire" have been around for decades ... and they won't change just because you deem yourself special.
Most companies will tell you to piss off if you suggest that.
Lost at C:>. Found at C.
However, this guy is not acting as a contractor in any shape, matter, or form, and doesn't have any such contract. So, what you're saying is perhaps a bit off-topic and entirely hypothetical.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
No - he's asking to modify an existing arrangement - otherwise, there would be no question to ask. Duh!
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
Rereading the question, OP works at a company servicing a SAAS for developers to share code and being paid for it; so far so good. OP works on the backend software for this platform, very well as well.
He wants to sell his Code and Ideas, this is fair. But why has he have to do this in company time? In the question this reads as an imperative? Why can't he do it in his free time like everybody else, using the very same platform he has so much insight in?
Would the code he wants to sell be pertinent to the SAAS platform itself? That might be a bad Idea from the company's point of view for sure.
Or can't he produce non-trivial code one could find on Github or somewhere else in his spare time, because of lack of time or energy or of other reasons like having a life? Well that would mean that he'd work on his own projects on company time, something again any company would find a bad idea for sure as well.
OP's situation is definitely not one of a contractor who writes software or modules from scratch or based on an unique skill-set which is licensed out, and he is NOT producing a product or software in itself, but amends to a (presumably) pre-existing (as in existing at the company before he was hired) software in form of (sic) add-ins presumably ordered by the companies' customers in the first place.
I cannot see a company entering a contractual situation with anyone on these premises unless there would be a BIG benefit for said company.
Don't get me wrong, OP might be a gifted, hardworking, very creative Individual, which could be a BIG benefit for the company to keep and give free reign. But then again as a Company I would argue to advance OP inside its structure, giving a fancy job title, higher payment and so on, as this would benefit the company much more than to allow OP to make money independently from the companies software.
My advise to OP, if (s)he sees him/herself to be a rather free spirit is to break free from corporate shackles and try to stand on their own feet, and create great software, of which one might be the next big thing, get bought by a bigger company and help yourself to those nifty shares!
Otherwise find good use with those good ties to upper management and advance yourself inside the company, working towards the better payday and create some great software, of which one might be the next big thing, go IPO, and help yourself to those nifty shares!
its your choice
In the absence of a contract the consultant will own the code. All paying for it give you is an implied license, which only includes source code if it is necessary for the normal use of the program (so basically scripting languages or programs where you hard coded enough that you need source code to use it.)
Nonsense. Any code developed as part of your work on behalf of a client is owned by default by your client in the absence of any other written agreement. It is known as work-for-hire. If the code is generic and not part of their products you can often get permission to distribute the code and retain ownership but it is not guaranteed.
Not to mention that having a good relationship with management won't guarantee anything.
Even if you never have a falling out, don't forget that it's a business. As such the chain of command is vulnerable to higher ups promoting or reassigning your boss.
And of course there's also mergers, acquisitions, bankruptcies, and other such corporate reorganizations that could well change who you report to.
Not only should you get it in writing, but make sure that the person signing the contract is sufficiently empowered to act on behalf of the business. If it's a large company, chances are your direct boss doesn't have that authority anyway, good relations be damned.
Consultants do not fall under work for hire.
If you have one client and they choose your schedule you are not a consultant.
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... quit and work for yourself (and see how hard it is to pay for resources, benefits, insurance, lawyers, etc.), OR realize all the things being employed by a stable company offers you and be thankful.
And no, I don't mean just be happy being a worker bee, but it's a give and take relationship as an employee, and you only want to take.
Seriously, with that attitude, I'd never hire you as you sound like someone with no loyalty and nothing but "me me me" for a mindset.
'The unexamined life is not worth living' - Socrates
Anyway, as there are a couple of people contesting this already I though I would link the actual rules on copyright and work for hire.
http://copyright.gov/circs/circ09.pdf
Note that falling under (b) requires that it pass that test AND there be a contract stating so. The tests in (b) have also been found to be exhaustive, so it MUST fall under one of those scenarios.
This means that even in many cases where there is a contract stating that the party paying for the consulting time owns it, in reality the consultant still owns the code. The only common one where code is not owned by the consultant is when the work will become part of another existing work.
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It isn't vague at all, cerberusti is exactly correct and the AC is a maroon.
"Work for hire" means employee. It doesn't matter what you want it to mean; look up the legal precedents. Contractors are exactly what is _not_ "work for hire," it is business to business contracted work. Basically, the opposite of "work for hire."
There is no ambiguity; you have to have an express assignment of copyright for it to transfer. The contractor owns all their own IP. What the client gets is an implied unrestricted license. That gives them certain rights; you can't stop them from using what you made, because they paid you to make it, but that isn't the same as granting copyright. And a copyright assignment that is buried in the contract is actually not enforceable. You have to have a separate document that is only the copyright transfer. You have to have a signature that is just for the copyright, or else it is not expressly agreed to, it is just an unenforceable extra condition. The copyright assignment can require another document to have been signed in order to take effect, though. So that is how it is done, and that is why there is more than one thing to sign when you have a lawyer do this stuff for you.
The funny part, yeah, consulting contracts often do claim to state the ownership, but that isn't a valid place for it, and the contractor actually still owns that code. It doesn't come up very often, though, because if you try to use that to screw somebody over, you'll be engaging in an unfair business practice and that will preclude you from bringing an otherwise-valid lawsuit regarding the matter.
The easy way to remember it if you don't want to learn the details, the copyright designation is based on who the legal employer is, not who paid for the work. Paying for the work just means you have to be allowed to use the thing that was made for you. If you want to also own the copyright, you're buying that separately the same as if it was made for somebody else.
Just wiki "work for hire" before trying to get pedantic and "stepping in it."
But in the article, as an employee there is no way for him to end up with copyright. Even if it was done at home, since it is clearly related to his work, they own it.
My advice for him, if you're not ready to be a contractor, and you're not ready to start your own company, just write these ideas down in a notebook. You're not in the right situation to be writing speculative for-profit apps that take advantage of your employer's platform, because you're also writing those for your employer. If your company actually wants you to do this, they'll give you the documentation you need, but make sure you're really well trusted by management. If you're just a regular Jr developer, don't even ask. Just write your ideas down so that you can think about them more later, and learn about which still look good later.
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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cumputers
don't forget the moanitors!
lucm, indeed.
I think the majority of younger people aren't as dumb as this. Most people learn quite young that it's not right to take something that isn't yours and sell it. In this case, he clearly wants to try to find some justification for doing exactly that, and there is none.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
I linked the actual rules in a reply to my post.
The way I dealt with this as a consultant was to incorporate my consulting company. That pretty much shuts down any argument over work for hire before it begins. I still occasionally had someone contest it and lawyer up, but they always backed down pretty quickly as there was zero chance of them winning a suit.
I suppose you could try to do it contract by contract, but not only is that annoying for small contracts, it is also still open to debate as transferring copyright is not as simple as having a line in your contract.
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This is correct. Anyone claiming that you can work for a company - paid by the hour - and own ANY rights to the product of your work is full of BS. Sure, if you can negotiate a contract that says so, the do it. But absent that written agreement all work is for-hire, and there is AMPLE common law that follows that principle.
"Somebody has to do something. It's just incredibly pathetic it has to be us."
--- Jerry Garcia
You can believe that all you want, but unless an employee wrote the code or you have a correct copyright assignment you would almost certainly lose in court.
A correct copyright assignment is not as simple as having a clause in the contract specifying who owns the code, even many lawyers do it incorrectly.
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It's the LAW, dummy. Look up "work for hire." He's an employee (he says so himself), not an independent contractor.
"Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
You can claim the law is BS all you want, but it would be inadvisable to take that position in court.
If it is an employee paid on a W2 who shows up at the office every day and has their tasks and schedule set by the employer, the employer owns the copyright.
If it is a contractor paid on a 1099 who uses their own equipment at their own location, the contractor owns the copyright (even if there is a clause in their contract stating otherwise.)
If it is somewhere in between a court would decide if they are an employee or an independent contractor.
http://copyright.gov/circs/circ09.pdf
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Incorporation provides no shield whatsoever, at least in the US. They can still sue you into bankruptcy.
What you want is to spell out in the contract that anything you provide is an "instrument of service" and that it cannot be distributed, modified, blah, blah, without your permission.
And yes, you need a contract for each and every single job you do, no matter how small. There's always the chance that you will have an insane client (like I did) who ran up nearly a million dollars in costs arguing with us, and then ended up paying a quarter of that, when we calculated the original remedy would cost $1,800. And yes, the client was insane, absolutely bonkers. And I had bought that job from another company that we purchased, and they did not have a strong enough contract, and the job was tiny, about $4,000.
Being incorporated does absolutely nothing for you to protect you from that.
What a strange point of view you have. Incorporating does a few things for you:
1) It prevents you from being personally liable if you get sued (although there are some additional limitations on this if you are a sole proprietor which do not affect corporations with multiple owners, and if you do something illegal they may be able to pierce the veil and go after your personal assets anyway.)
2) If someone tries to claim work for hire, the judge will dismiss the case immediately (it never applies between two corporations.)
3) Formerly, it meant clients did not need to send you a 1099 (although I believe this has changed.)
4) It cuts down on those asking you to sign an employment contract as part of your consulting work, as it is obviously inappropriate (needing to tell clients no less frequently is good.)
5) It allows you obtain an EIN and hire others.
6) A bunch of other minor things I am not going to bother listing.
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Yes, any contractor who has any idea of what is at stake should incorpate as a Chapter S at least.
Ignoring the huge tax advantages that comes with a Chapter S, it is the most protection for the least amount of effort.
If you're doing it full time, or you make at least $20k/year in income from your contracting, it's crazy to do anything else - it more than pays for itself. That $500 tax prep bill is worth every penny I saved by claiming capital gains on distributions.
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The author is the copyright holder unless it was an employee (which in the vast majority of cases comes down to if they are paid on a W-2 or not.) Under very limited circumstances which are explicitly enumerated in law, rarely apply to programmers, and which require written acknowledgement, it can sometimes apply to contractors.
Usually even if there is a contract stating that the commissioner owns it they do not, and the contractor is still the copyright holder. You must specifically transfer the copyright in question to change ownership (a line in a general contract will not do this.)
You do not need to take my word for it though, I linked you a clear and concise explanation by the copyright office (http://copyright.gov/circs/circ09.pdf)
There is also the actual law: https://www.law.cornell.edu/uscode/text/17/101
And a supreme court decision from 1989: http://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid
You can stare at that in disbelief all you want, but it does not change the facts.
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