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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.
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.
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.
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.
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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.
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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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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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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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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