I am a lawyer (sorry) and whether you own the copyright in the code probably turns on what is in the contract with the customer as well as the pattern of dealing in previous contracts. As a general rule, the person who wrote the code owns the copyright unless they did it while working as an employee of someone who paid them to write it. In that case, it is a work for hire and the employer owns the code.
If it is not a work for hire, you may very well have assigned the copyright to the customer in the contract. A copyright assignment has to be evidenced by some writing but there is no single set of magic words. Is there something in the contract that clearly says you assign the rights to the source code to the customer? If so, you they own the copyright even if they didn't pay. You don't go home empty handed because you still own the right to sue them on the breach of contract.
Even if you still retain the copyright, the customer is probably not infringing it. By writing the program for them, at a minimum you probably granted them a non-exclusive license to use the code. You still have a right to sue them on the contract but not on the copyright. Google on Kozinski and "Effects Associates" to see how this works.
/Begin obligitory disclaimer to keep people from suing me for malpractice or practicing law in your jurisdiction without a license.
Finally, you should take everything in this posting and everything you find on the Internet about law with a grain silo of salt. You have no way of knowing whether I am really am a lawyer and even if I am, I'm not admitted in your jurisdiction and even if I were, I'm not your lawyer. Ask a lawyer in your own state.
Umm, it isn't the 9th District Court or even the 9th Circuit Court. It is California's Supreme Court. If you get your news from Faux or some of the other far right lunatics, they will slander the 9th as being ultra liberal but it isn't true and their reversal rate is not much different than any other court on the Federal Circuit.
In this case, the 9th Circuit Court of Appeals kicked the question to the California Supreme Court. If the California Supreme Court decides to answer it, then the answer goes back to the 9th Circuit which will give then kick it back to the Federal District Court with what amounts to instructions to 'do what the California Supremes said.'
Since this is a state law question, the California Supreme Court is the final arbiter. The US Supreme Court cannot overrule the California Supreme Court on a question of California state law. Unless of course they are willing to commit a constitional coup like when they told the Florida Supreme Court what Florida law on elections should be.
In response to Kingdavra "It's a rental...Thinking about it, we're only renting domains"
Saying it is a rental rather than property isn't even begging the question. When you rent something, you are buying a temporary property right. You rent the possessory right to be in or use the property and that right generally means that you can exclude all others. For example, if you rent an apartment and your landlord decides to sleep over, you can call the police and have him arrested for trespassing even though he 'owns' the property.
To a lawyer, property is not land and houses. It is a bundle of rights that include the right to possess now, the right to possess in the future, the right to give it away, the right to exclude others, etc. An owner's ability to rent, sell or give away or otherwise divide up those rights is limited only by her lawyer's imagination and, sometimes, local law. One example of a limit is the law's prohibition (outside of Nevada) on renting out one's property right in one's own bodily orifices for someone else's sexual gratification. I can see a policy reason for banning that kind of property transaction but there is no good reason not to treat sex.com and any other domain name as traditional property.
The lawsuit that the recording companies settled is only not the whole story. The Attorneys General of a bunch of states sued them in civil court because they violated anti-trust law (allegedly). The Attorneys General, or the Federal Government could also have filed criminal charges against the record companies but they chose to file a civil lawsuit, presumably because it is much easier to win. In criminal proceedings, the defendant has to be proven guilty 'beyond a reasonable doubt.' To prevail in civil court, the standard is 'more likely than not.' It is the difference between being 51% sure they are guilty and being 99% sure.
While the record companies refused to admit fault with words, they did it with dollars. You don't settle a lawsuit for that much money unless you are pretty sure that you will be found liable at trial. If they were really settling for the 'nuisance value' of the lawsuits, the amount would have been much lower. Think of this settlement as plea bargaining for guilty corporations--"We won't fight the the punishment as long as we don't have to say 'we're guilty' out loud."
The other shoe, or boot, that is waiting to fall is private class action litigation. If someone robs you, the government can prosecute or sue them. But as a victim, you also have a right to sue. (Alas, you don't have a right to start a criminal prosecution--under US law--but you can, like the family of O.J.'s wife, sue in civil court.)
There was at least one private class action lawsuit filed against these record companies for price fixing in 1996. The last I saw (1997), it was still kicking around the courts. In dollar terms, private class action suits can easily exceed the damages they'll pay to settle the government's case.
The other damage the industry faces is that this settlement, while not technically an admission of guilt, is tantamount to it in the court of public opinion. The industry has been shown to be bigger pirates than Napster--they've been ripping off ALL of their customers.
"You never have fewer rights under state law then you do under Federal Law, the US constitution always trumps state constitutions"
Neither part of this assertions is entirely correct. The federal constitution can afford you more (or fewer rights) than your state constition. For example, the US Supreme Court can say that a warrantless search of your computer violates your federal right under the 4th Amendment against unreasonable search and seizure but that the same search is a violation of your state constitution. The rights protected in one constitution are similar, but not identical to the rights protected in the other.
If a court says that the government violated rights protected either by the federal or state constitution, the upshot will probably be that they have to drop the charges (or in the case of unreasonable searches, they cannot use the tainted evidence--which often amounts to the same thing).
The US constitution only trumps state constitutions where there has been a grant of federal power and it directly conflicts with something in state law. For example, on the question of whether the federal govt can ban guns within 100 feet of local schools (when state law does not), the answer seems to be no because the Supreme Court says nothing in the constitution grants the federal government power to regulate a local issue like that. States have that power, the federal government does not so state laws trump federal law.
"I can't understand how a federal judge can have the sort of authority to declase the action legal when it doesn't appear to be a federal matter."
The case appears to be before Judge Coughenour, a federal judge sitting in Seattle. During the course of a typical case, judges routinely have to rule on federal and state legal issues that come up. On federal law questions, the judge looks primarily to the past decisions by the US Supreme Court and the 9th Circuit Court of Appeals.
For state law issues, Judge Coughenour has to apply and abide by past rulings of the Washington State courts, and especially its Supreme Court.
For a specific example, the Russian defendants can claim rights under both the 4th Amendment to the US Constition and similar provisions of the Washington Constition against unreasonable search and seizures. You may have more (or fewer) rights under your state constitution than you do under the Federal. Coughenor would look to federal precedents to decide the federal issue and look to state precedents to decide the Washington state issue.
If the Russians think that Coughenor gets either the state or federal issues wrong, they can appeal to a higher Federal Court of Appeals and on the state law issue, there is a process for the Court of Appeals to ask the Washington Supreme Court for their opinion.
On the issue of who wins the dispute over whether the FBI agent broke Russian law, there is no single answer. If the Russian courts ultimately decide the FBI agent broke their laws, they can convict him and sentence him to prison. Their problem is getting hold of the FBI agent to put him on trial in the first place. Don't look for a U.S. Court to order that a Russian extradition request for the FBI agent be honored. This case should make a nice final exam question for "Conflicts of Law" courses in lots of US law schools next May.
} I'm sorry that makes no sense at all. How can a } federal court decide something is against the } constitution but only on one area of a } particular state? More importantly, why would } they? That would mean the same trial would } either effectively have to be tried a few } hundred times or the Supreme Court can give up } any hope of sleeping.
There are more than 100 Federal District Courts around the US that feed into to about a dozen Circuit Courts of Appeals (each Appeals Court supervises about ten District Courts). The Circuit Courts in turn feed into the Supreme Court. On novel or closely disputed issues of law, District Courts come to different conclusions all the time. Those opinions regularly get appealed to the local Circuit Court of Appeals. When the Appeals Court decides a legal issue, all the District Courts in the area have to abide by that decision.
Things get most interesting when the Circuit Courts disagree on the same issue (the so-called 'split in the circuits'). The Supreme Court hears well under 200 cases a year and about 90% of these are 'splits in the Circuits.' Once the Supreme Court decides an issue, all the lower Federal Courts have to abide by it.
In practice, lower courts often disagree for years or decades before the Supreme Court gets around to settling an issue.
The system is not optimized for logic or speed so your reaction that it doesn't make sense is not uncommon. It is part of the down side of having a large democracy filled with people who don't mind disagreeing with each other. You would prefer an alternative?...
Slashdot Mirror
I am a lawyer (sorry) and whether you own the copyright in the code probably turns on what is in the contract with the customer as well as the pattern of dealing in previous contracts. As a general rule, the person who wrote the code owns the copyright unless they did it while working as an employee of someone who paid them to write it. In that case, it is a work for hire and the employer owns the code.
If it is not a work for hire, you may very well have assigned the copyright to the customer in the contract. A copyright assignment has to be evidenced by some writing but there is no single set of magic words. Is there something in the contract that clearly says you assign the rights to the source code to the customer? If so, you they own the copyright even if they didn't pay. You don't go home empty handed because you still own the right to sue them on the breach of contract.
Even if you still retain the copyright, the customer is probably not infringing it. By writing the program for them, at a minimum you probably granted them a non-exclusive license to use the code. You still have a right to sue them on the contract but not on the copyright. Google on Kozinski and "Effects Associates" to see how this works.
Finally, you should take everything in this posting and everything you find on the Internet about law with a grain silo of salt. You have no way of knowing whether I am really am a lawyer and even if I am, I'm not admitted in your jurisdiction and even if I were, I'm not your lawyer. Ask a lawyer in your own state.
Umm, it isn't the 9th District Court or even the 9th Circuit Court. It is California's Supreme Court. If you get your news from Faux or some of the other far right lunatics, they will slander the 9th as being ultra liberal but it isn't true and their reversal rate is not much different than any other court on the Federal Circuit.
In this case, the 9th Circuit Court of Appeals kicked the question to the California Supreme Court. If the California Supreme Court decides to answer it, then the answer goes back to the 9th Circuit which will give then kick it back to the Federal District Court with what amounts to instructions to 'do what the California Supremes said.'
Since this is a state law question, the California Supreme Court is the final arbiter. The US Supreme Court cannot overrule the California Supreme Court on a question of California state law. Unless of course they are willing to commit a constitional coup like when they told the Florida Supreme Court what Florida law on elections should be.
In response to Kingdavra "It's a rental...Thinking about it, we're only renting domains"
Saying it is a rental rather than property isn't even begging the question. When you rent something, you are buying a temporary property right. You rent the possessory right to be in or use the property and that right generally means that you can exclude all others. For example, if you rent an apartment and your landlord decides to sleep over, you can call the police and have him arrested for trespassing even though he 'owns' the property.
To a lawyer, property is not land and houses. It is a bundle of rights that include the right to possess now, the right to possess in the future, the right to give it away, the right to exclude others, etc. An owner's ability to rent, sell or give away or otherwise divide up those rights is limited only by her lawyer's imagination and, sometimes, local law. One example of a limit is the law's prohibition (outside of Nevada) on renting out one's property right in one's own bodily orifices for someone else's sexual gratification. I can see a policy reason for banning that kind of property transaction but there is no good reason not to treat sex.com and any other domain name as traditional property.
The lawsuit that the recording companies settled is only not the whole story. The Attorneys General of a bunch of states sued them in civil court because they violated anti-trust law (allegedly). The Attorneys General, or the Federal Government could also have filed criminal charges against the record companies but they chose to file a civil lawsuit, presumably because it is much easier to win. In criminal proceedings, the defendant has to be proven guilty 'beyond a reasonable doubt.' To prevail in civil court, the standard is 'more likely than not.' It is the difference between being 51% sure they are guilty and being 99% sure.
While the record companies refused to admit fault with words, they did it with dollars. You don't settle a lawsuit for that much money unless you are pretty sure that you will be found liable at trial. If they were really settling for the 'nuisance value' of the lawsuits, the amount would have been much lower. Think of this settlement as plea bargaining for guilty corporations--"We won't fight the the punishment as long as we don't have to say 'we're guilty' out loud."
The other shoe, or boot, that is waiting to fall is private class action litigation. If someone robs you, the government can prosecute or sue them. But as a victim, you also have a right to sue. (Alas, you don't have a right to start a criminal prosecution--under US law--but you can, like the family of O.J.'s wife, sue in civil court.)
There was at least one private class action lawsuit filed against these record companies for price fixing in 1996. The last I saw (1997), it was still kicking around the courts. In dollar terms, private class action suits can easily exceed the damages they'll pay to settle the government's case.
The other damage the industry faces is that this settlement, while not technically an admission of guilt, is tantamount to it in the court of public opinion. The industry has been shown to be bigger pirates than Napster--they've been ripping off ALL of their customers.
"You never have fewer rights under state law then you do under Federal Law, the US constitution always trumps state constitutions"
Neither part of this assertions is entirely correct. The federal constitution can afford you more (or fewer rights) than your state constition. For example, the US Supreme Court can say that a warrantless search of your computer violates your federal right under the 4th Amendment against unreasonable search and seizure but that the same search is a violation of your state constitution. The rights protected in one constitution are similar, but not identical to the rights protected in the other.
If a court says that the government violated rights protected either by the federal or state constitution, the upshot will probably be that they have to drop the charges (or in the case of unreasonable searches, they cannot use the tainted evidence--which often amounts to the same thing).
The US constitution only trumps state constitutions where there has been a grant of federal power and it directly conflicts with something in state law. For example, on the question of whether the federal govt can ban guns within 100 feet of local schools (when state law does not), the answer seems to be no because the Supreme Court says nothing in the constitution grants the federal government power to regulate a local issue like that. States have that power, the federal government does not so state laws trump federal law.
"I can't understand how a federal judge can have the sort of authority to declase the action legal when it doesn't appear to be a federal matter."
The case appears to be before Judge Coughenour, a federal judge sitting in Seattle. During the course of a typical case, judges routinely have to rule on federal and state legal issues that come up. On federal law questions, the judge looks primarily to the past decisions by the US Supreme Court and the 9th Circuit Court of Appeals.
For state law issues, Judge Coughenour has to apply and abide by past rulings of the Washington State courts, and especially its Supreme Court.
For a specific example, the Russian defendants can claim rights under both the 4th Amendment to the US Constition and similar provisions of the Washington Constition against unreasonable search and seizures. You may have more (or fewer) rights under your state constitution than you do under the Federal. Coughenor would look to federal precedents to decide the federal issue and look to state precedents to decide the Washington state issue.
If the Russians think that Coughenor gets either the state or federal issues wrong, they can appeal to a higher Federal Court of Appeals and on the state law issue, there is a process for the Court of Appeals to ask the Washington Supreme Court for their opinion.
On the issue of who wins the dispute over whether the FBI agent broke Russian law, there is no single answer. If the Russian courts ultimately decide the FBI agent broke their laws, they can convict him and sentence him to prison. Their problem is getting hold of the FBI agent to put him on trial in the first place. Don't look for a U.S. Court to order that a Russian extradition request for the FBI agent be honored. This case should make a nice final exam question for "Conflicts of Law" courses in lots of US law schools next May.
} I'm sorry that makes no sense at all. How can a
} federal court decide something is against the
} constitution but only on one area of a
} particular state? More importantly, why would
} they? That would mean the same trial would
} either effectively have to be tried a few
} hundred times or the Supreme Court can give up
} any hope of sleeping.
There are more than 100 Federal District Courts around the US that feed into to about a dozen Circuit Courts of Appeals (each Appeals Court supervises about ten District Courts). The Circuit Courts in turn feed into the Supreme Court. On novel or closely disputed issues of law, District Courts come to different conclusions all the time. Those opinions regularly get appealed to the local Circuit Court of Appeals. When the Appeals Court decides a legal issue, all the District Courts in the area have to abide by that decision.
Things get most interesting when the Circuit Courts disagree on the same issue (the so-called 'split in the circuits'). The Supreme Court hears well under 200 cases a year and about 90% of these are 'splits in the Circuits.' Once the Supreme Court decides an issue, all the lower Federal Courts have to abide by it.
In practice, lower courts often disagree for years or decades before the Supreme Court gets around to settling an issue.
The system is not optimized for logic or speed so your reaction that it doesn't make sense is not uncommon. It is part of the down side of having a large democracy filled with people who don't mind disagreeing with each other. You would prefer an alternative?...