in reply to Re: What I am paid for
in thread What I am paid for

You can do whatever you do with code you write you want. But Kevin Partner has that right as well. If he writes code for a contract, he has the right to state in that contract what the rights of the customer are.
In principle, I agree completely. In practice, however...
You might ask why I didn’t make a contract with this client in the first place. It’s because I’ve found, over the years, that insisting on a contract before development starts will result either in a delayed start or even a project being shelved.
...
Where such topics are brought up by a client in advance, we come to an agreement and encapsulate it in a “letter of understanding” written in plain English, which may not be legally watertight, but will offer protection so long as you cover all the main issues.
Shame on Kevin Partner for not clearly establishing up front what the customer's rights would be and allowing his clients to assume that they would have greater rights to the project deliverables than he intended to give them. As a professional who knows that issues sometimes arise over the disposition of rights to his work, he should have brought it up in advance if the client didn't so that an agreement could be reached, even if only in the form of a “letter of understanding” written in plain English and not as a formal contract.

And scorn upon him for his penultimate paragraph suggesting that the way to deal with this is to take your clients' money and then hold their code hostage until they give in to the terms that you demand rather than properly negotiating the terms of the project up front. While those methods may work in the short run, they destroy his reputation in the long run and, by association, may also harm my reputation and the reputations of other freelance and contract developers if clients assume that his "this isn't about blackmail" blackmail is a standard practice.

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Re^3: What I am paid for
by Herkum (Parson) on Mar 09, 2010 at 20:23 UTC

    hame on Kevin Partner for not clearly establishing up front what the customer's rights would be

    Is the client looking out for Kevin's interests? Then why should Kevin Partner also have to look out for the client's interest? It is not like businesses don't have access to lawyers or contract writers. Some companies have those people on staff, so to put the weight of this on the developer seems one-sided.

    I also have little sympathy for most businesses now a days. Capitalism has moved from a balanced relationship between employer and employee. It has been replaced with business grabbing everything that is not nailed down, and if can be pried loose, it is not nailed down.

    While those methods may work in the short run, they destroy his reputation in the long run

    His choice, that is what is life is about making choices, good or bad.

    While he may come off as a jerk for not being completely open there are a large number of people who are doing worse and it is completely legal. I am not a particular fan of Kevin Partner's method, I believe he is doing this because of the business environment we are now in. If he does not look at for himself, can he really depend on his customers to do so?

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      Is the client looking out for Kevin's interests?
      My previous comment wasn't intended to say that Kevin should look out for the client's interests, but rather that, by establishing the terms of the project up front, he's protecting his own interests. By taking the approach he has chosen, he opens himself up to the risk of clients sending in their lawyers to say, "Under standard copyright law, this is a 'work made for hire'. There is no agreement in place to override that. Therefore, we own the copyright, not you. You will turn it over immediately and, furthermore, you will pay our legal fees plus damages related to your attempt to prevent our lawful use of our property."

      Now, I'm not competent to establish whether it actually is a 'work made for hire' under copyright law or not in his (or any other) jurisdiction, but that's beside the point. If he has to go to court to defend against such a claim, he loses, period. Even if he wins the case, the legal fees and non-billable time spent on it will add up to a high cost for doing so.

[reply]

        To the best of my knowledge (minimal), if the code contains his copyright notice, it belongs to him unless they can prove otherwise through documented transfer of ownership or license.

        I once got into a bother because 3 months into a contract for a very large computer company, someone noticed that every file of code I had produced had a standard header comment containing my copyright notice. I defused a potentially nasty rucus by explaining that it was produced by my editor when I created a new file, and that I simply hadn't thought about removing it. I offered to remove them all immediately. They still made me do it in front of a lawyer, and sign-off in triplicate each and every one of the files.

        The upside was that it caused them to review my contract--a standard boiler-plate that I had signed when I started, and in the process I voiced my disquiet at their interpretation of the all-encompassing "We own all code you write whilst under contract to us". The basis of my argument was that as I was employed by-the-hour, I was not under contract to them outside of those hours. It got escalated up the food chain several times, but the net result was that my interpretation was deemed the correct one. (In the UK. Not sure about elsewhere.). My contract, and their standard contract were re-written to state that explicitly.

        Examine what is said, not who speaks -- Silence betokens consent -- Love the truth but pardon error.
        "Science is about questioning the status quo. Questioning authority".
        In the absence of evidence, opinion is indistinguishable from prejudice.
[reply]

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