As usual, it depends.

It depends on what the terms of employment are. Typically, any code you write for your employer while you are working on the employer's systems belong to your employer. Code you write at home on your own equipment belongs to you -- although I've heard of contracts where that isn't the case.

To use your analogy of a craftsman, a master carpenter may work at a job where he decides he needs to build a jig, or a prototype. When it's finished, it's used for the project. But the master carpenter doesn't *own* the jig -- its creation was paid for my the owner of the project. He can't take it home, or use on another job. However, if he goes home and builds an identical jig, that's his to keep and use on any project he sees fit.

In the software world, this can be a matter of negotiation -- putting value on the tools that might get developed during the project that the develop might like to take away. If everything needs to be left behind, then the price would be higher than if the consultant is able to take away some modules that are a) not necessarily proprietary and b) useful in a variety of applications.

A consultant who obfuscates a customer's code, or does anything else to hold the customer's code hostage might provide a win in the short term, but it will almost certainly result is a loss later on, when no one will want to hire the consultant again. It also goes against the nature of Open Source software, which I see as a meritocracy, my preferred type of society.

Code you write at home on your own equipment belongs to you -- although I've heard of contracts where that isn't the case.

Commonsense would suggest this would be the case, but a number of people have told me that this is not true in the US. By default anything you create is owned by your employer unless you get them to disclaim ownership in writing.

I don't live in the US and I am not a lawyer.

Right -- I didn't want to go off on a tangent and use up more bandwidth about this, but I have heard of Employment Contracts that basically say *anything* you write belongs to your employer. A classic tale about this is tilly's node Professional Employees and Works for Hire.

Alex / talexb / Toronto

Team website: Forex Chart Monkey, Forex Technical Analysis and Pickpocket Prevention

"Groklaw is the open-source mentality applied to legal research" ~ Linus Torvalds

Most programmer's contracts state explicitly that the company paying the bills. own the code. In many, it goes even further, in that not only do they own the code you produce whilst on the clock for them. They also lay claim to ownership of any code you produce on your own time whilst the contract is in force. I didn't read the article, but if his attitude is as you describe it, he'll simply stop getting work.

Note: There's no judgement on my behalf in the above to the rights or wrongs of the situation. It is just how it is.

But for contrast: A musician spends say 3 months recording an album. They then (can) just sit back and do nothing and expect to be paid for every album sold; and every public performance of their work. Hell. They even expect to be paid (again) if a some 2-bit mom&pop cafe or workshop let's its employees listen to the radio and their song is played. Despite that the radio station has already paid.

Or authors: Take a year to write a book. Do nothing more, and expect to be paid for every copy sold for something like 25(?) years.

Is what programmers do worth so much less than writers and musicians? I'm not saying that programmers should be paid like rock stars (Hell. Not even rock stars should be paid like rock stars:). And I guess "software" in the widest sense of the word has its rock stars. From Larry & Sergey on down. But somehow, the top-heaviness of the pay scales for programmers, seems even more obscene than for musicians.

And at the other end of the scale, we have programmers encouraging other programmers, to take second mortgages on their homes and families, in order to pour their heart & souls in to producing software, that they, (the first group), will then want for free.

Take a year to write a book. Do nothing more, and expect to be paid for every copy sold for something like 25(?) years.

At least 70, in the US.

The number 70 rang some bells. I half remembered a headline about Cliff Richard lobbying to have music copyrights extended, and something about 70 years. A search turned up this in which it says that copyright (in the US) has been "life +50 years" since 1976. And that was extended to "life+70 years" as of 1998.

And according to this, the EU already has the same life+70 time limits for authors and songwriters. And as of 2008 is seeking to extend the coverage for performers from life+50 to life+70.

I assume that programmer's copyrights, where they are the holders, are covered by the same legislation. I wonder how many programmers have ever received royalty payments?

Where companies hold copyrights, it seems they where recently extended from 75 to 95 years.

---

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.

"I'd rather go naked than blow up my ass"

The number 70 rang some bells. I half remembered a headline about Cliff Richard lobbying to have music copyrights extended, and something about 70 years. A search turned up this in which it says that copyright (in the US) has been "life +50 years" since 1976. And that was extended to "life+70 years" as of 1998.

And according to this, the EU already has the same life+70 time limits for authors and songwriters. And as of 2008 is seeking to extend the coverage for performers from life+50 to life+70.

I assume that programmer's copyrights, where they are the holders, are covered by the same legislation. I wonder how many programmers have ever received royalty payments?

Where companies hold copyrights, it seems they where recently extended from 75 to 95 years.

---

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.

"I'd rather go naked than blow up my ass"

I don't know, most authors make a matter of cents every time one of their books is sold, and most musicians don't do much better. Stars, whether rock or music, usually get partial advances, and signing a record contract means going into debt (big time). I don't think the metaphor lines up so nicely. The stars of any profession have almost always been able to write their own ticket, but most just work pretty hard for scale.

Contrary to other countries, in Germany the creator of a (sufficiently large) work has an imprescriptible ownership of that work. So the most the contract can say is that I sell the customer an exclusive, all-encompassing license. But I'm still owner of the code (whatever that means then...).

I agree with BrowserUk that the value of a programmer should be recognized and rewarded; on the other hand, it would make software licensing much more complicated if everybody had to pay royalties to any major contributor of a commercial project.

In the end it boils down to the ownership of non-material values; the laws of which mostly reach back to a time where information spread very slow, and was mostly long-lived, and create very weird, unfair situations today.

So far I haven't really seen good ideas on how to handle that in fair manner in the general case. It's one of the open problems of our times, and I'm eager to see what the future brings here.

I think this guy is an ass but that's not what you have written isn't what I understood from the article.

He knows he doesn't operate the way most customers expect and he also knows that if he made this clear up front (contract), he would lose business so instead he insists on a substantial payment up front so when the customer becomes savvy he doesn't get left holding the bag. Did I mention, I think this guy is an ass.

In a nutshell, what he is saying is that when you hire him to deliver a solution, what you are paying for is the end product and nothing else. He goes on to say he is more than happy to sell you the portions of the code that he had to create specifically for your end product at an additional cost. What he is unwilling to sell is the libraries he has created prior to taking on your project. The question is why?

Well, the reason he gives is because he would have to create it in a new form and that it would take longer and cost more. I think this is a relatively simple problem to solve with copyright and licenses. That is, if the customer truly didn't pay to have them developed. Why then hide code that is legally your intellectual property? It seems to me that he has chosen job security through obscurity and shady business practices. If he made the code legible then anyone looking at it could be unscrupulous and then start using it themselves to under bid him. Did I mention, I think he is an ass.

I think this is a relatively simple problem to solve with copyright and licenses.

It really isn't that simple.

20 years ago I was contracted by a large, very well known company in the UK to do some system testing on the latest version of an in-house developed piece of software used widely across the companies many sites. Early on, I detected a problem by accident that fell outside of the prescribed test regime, but that manifest itself when setting up the tests. With a little effort I reduced it to reproducible scenario, and reported it. Big business being what it is, they asked me for the test ideintifier that produced the problem, and when I couldn't give them one, they dismissed it as irrelevant. Luckily, bug reports weren't only sent to the IT department, but also to the Production sysadmins for sign-off. And one of them recognised some of the symptoms as being the same as a transient, but recurrant problem that had bugged production systems for the past several years and versions.

What's this got to do with your post I hear you ask. Once authorised to track down the bug, I traced it back to a rs232 comms library used by the application suite. Whilst the source code for this was 'on file', the code was actually owned and licenced from a third-party company. Actually just a one-man band, that had been brought in to develop the original system. When I suggested that it would probably take me a couple of weeks or more to understand that library sufficiently to implement a fix. And that it would then need testing. The IT department, mindful of their testing and rollout schedule stepped in with. "It's not our problem to fix it. Call in the original developer". Which they did.

It turned out that he had been paid for his original work, and the licence for the first year. But from that point forward, he had never seen a dime. That was 6 years, 3 major versions including a switch of OS (DOS to OS/2), and a myriad of minor releases. As well as a near doubling of the sites and quadrupling of the servers on which his copyrighted and licenced code ran. Had the bug not come to light and the IT dept. called him back for "service" under the original contract (despite it being long expired), he would never have known.

And that's the problem with copyright & licencing for the small business and lone programmer. It is impossible to police what a company does with the code, once your initial contract (and access) expires.

Note:There was never any suggestion that the big company deliberately set out to cheat him. It simply slipped through the cracks of their procedures and staff continuity. (He was actually overjoyed with the settlement they offered by way of compensation, without him having to take any kind of legal action. It paid off his mortgage and brought him a new car.)

---

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.

"I'd rather go naked than blow up my ass"

BrowserUk,
The point you raised is a different problem then the one I am saying is addressed by licenses and copyright. I don't take exception with one thing you said and agree that it is a real problem - just not the one argued by the author of the article (as I understood it). His biggest concern was that if he sold it, he would have to start over for every client. Now that problem is easily solved by retaining the intellectual property and licensing it. Elsewhere in the article, he also mentions he has no problem agreeing to sell the project specific code if they also agree to the inevitable maintenance contract.

Getting back to your point: It is a UK based company I never heard of so I can't say how large or small it is. It doesn't really matter, it hardly seems a desirable situation to constantly policing your former clients to see if they are adhering to your license agreement. I wouldn't think the guy so much of an ass if he had presented his article in the following manner:

I have spent a lot of my personal time and resources developing libraries that help me build web based applications quickly. This is an enticing quality to have to prospective clients. One of the situations I often run into though is the thought that when I build a web application that they own my libraries as well. I would be happy to start from scratch so that the customer could own 100% of the code that I develop, but the reason I am sought in the first place is the speed with which I deliver solutions. So how do I deal with customers that want their cake and eat it too?

Since I tend to work with languages that don't readily compile to native binaries such as PHP, I have to rely on copyright and licenses to protect my intellectual property. I do not have the time nor resources to police all my clients to ensure they are adhering to the terms of the agreement, so I additionally obfuscate the portions that I used in building the custom web application that were not paid for - my personally developed libraries. I know that obfuscation is a poor solution but my personal experience has been problems ranging from non-malicious issues due to lack of understanding to the willful violation of the unscrupulous.

Cheers - L~R

Saying that the client should end up owning all code involved in the project, or even all code used in the project which flowed from your fingers, is ludicrous. By that principle, if Stevan Little completed a project for BigCorp, Inc. and used Moose in it², then BigCorp would own Moose, even though Moose had existed for years prior to their contacting Stevan or beginning the project.

¹ My personal way of acknowledging this default is by offering a discount on time spent writing code which will be contributed to FOSS projects or for which I will retain copyright. Sadly, it's extremely rare for clients to take me up on the offer.

² Ignoring, for the moment, Moose's long list of contributors and pretending, for the sake of discussion, that Stevan wrote the whole thing personally, on his own time.

I am not saying that the code should be owned by the client.

I actually do not think that code can be owned.

Code is thought, crystallized in written form. Telling someone that he may not use a particular piece of code is the same as telling him that he may not think that way. Thinking just does not work like this.

---

Update: I realize that this seems like a pretty negative approach. I will therefore outline what I believe software developers are paid for.

I believe that a software developer is paid for developing software.

In other words, the client does not pay for code, he pays for coding. A teacher is likewise not paid for knowledge, but for teaching.

I don't think you're being negative. I personally do not like the idea that things that can be created cannot be owned. This line of thinking punishes creators and justifies thieves. (Not to say that IP issues are solved in the world or work perfectly.) I think the teacher analogy is false as teaching is, in itself, not a creative act. A sidebar to that: I was a contracted teacher who created a large amount of custom curricula and materials to make my own work much easier. Since this was not a formal part of my job it was considered mine and the school paid me quite a bit of money to keep it, and clean it up a bit for new teachers to use, when my contract ended.

I do think you've hit upon an issue of architect versus craftsman. When I use Moose, as someone else mentioned, I'm not creating as much as crafting. In this trade the lines between architect and craftsman get blurry. I've had patches and bug reports to a couple major kits accepted, and had my code re-used by two Perl luminaries in particular. Does it make me an architect? No-ish...? It's a weird world we live in. I do really like it, though.

(update: fixed a compound word.)

I think you've hit a major point on intellectual property, however there's much more what can be said on this topic.

In the (philosophical) literature on property (what can be owned) there are two main principles what constitutes property, these are scarcity and effort (labor).

For instance jackets are scarce, not just because there are a limited amount of jackets in the world, but because if I take away your jacket, you do not have your jacket anymore. Or if woods are scarce we can make sure that woods will not be exhausted/exploited by making it the property of someone (hoping (s)he will be a good caretaker). Anyway it seems to me that's not the case with intangible property (especially if it's in digital form). My reason for this is if I take away (a copy) of your code, you still have your code. So I think the exact cost of making a copy is irrelevant here.

On the other hand, the principle of effort stands still for intangible property. If you mix your labor with an object (in the lockean sense) that makes the product yours. The product of your work would not exist without your labor. But this reasoning stands for the first copy only, the effort after that is the effort of copying.

So far so good, but... there are a lot of "but"s. Just to mention some:

If digital goods are not scarce (in the technical sense), the legal system of a society still can make it scarce, even with a good reason. That's reflected in most of our legal systems by the fact that intellectual property is a limited right (in time). So to say intellectual property is legitimated by making the creation of IP a profitable business (to encourage the creator by giving this limited right to her/him). However I think it's a sad joke that we're calling life+70 years limited.

Another major point is the (legal) security of property. If someone owns something right now, we should not transform this to something not ownable, because it hurts the interest of many.

Another one is that there were a lot of things considered IP before the time of digital machines and the internet, however at that time the ordinary folks were not able to copy and distribute them en masse.

In the end I think the nature of digital goods is not represented well in most of our legal systems. However I do not expect any serious change in it soon, because the property right is so deeply permeating any of our society that it can change only on the scale of decades or even centuries.

I hope this was not too abstract to make it irrelevant in this thread.

So, it's ok for $BIG_EVIL_COMPANY to take open source code and use it at will, including uses that violate the license? If code cannot be owned, it cannot be protected either.

Note there's a clear analogue with books and movies. Stories cannot be owned. You are allowed to retell a story (there are only a handful of stories anyway, just a gazillion variations). But you cannot copy entire sections of a book, or use parts of someone elses movie in work you "create".

copy/paste isn't thinking, its copy/paste

I do not agree with this.

I think it's very important to defend such rights, even if authors do things we do not like (and even if it's the music industry trying to protect their rights). Because, IMO, that's necessary keep open source working. After all, if we oppose (or worse, break the license/contract) rights we don't like, we don't have a case if others violate the licenses/contracts we like.

I have no problem with views like the one Kevin Partner has. It just means it becomes less likely I would hire him.

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.

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?

Said craftsman would not leave behind his toolbox after doing his work.

Most of all, this discussion reinforces the point that you need to have a well thought out contract with any and every customer that you do work for.   Among other things, you must expressly agree upon just what it is they are buying:   is it (a) the source-code; (b) the right to use the software that you have prepared for them (with a suitably explicit definition of just what you mean by “use”), or (c) “the results obtained?”

As a simple example... “okay, I am not a Home Depot Person.”   My dad loves the place... I always know where to buy his Christmas presents.   But as for me, I use licensed contractors. I despise the thought of going into Home Depot.   What I want is ... a roof that does not leak, and somebody that I can call to fix it for free if it does leak!   So, I am strictly buying “the results obtained,” with a warranty.   That's what I'm putting my hard-earned money down to get, and I make no bones and no apologies for it.   I don't want your box of leftover shingles; I don't want your $200 air-hammer.   I want a roof that does not leak, and I want recourse if it does.

Copyright is the very strongest and potentially the most lucrative right in the world. Many people do leave money on the table ... sometimes vast amounts of money ... because their vision is limited to the notion that they are merely selling “hours.”   This truly is an area of business where the maxim that you read in the in-flight magazines holds true:   “in business, you don't get what you deserve... you get what you negotiate.”

The one and only way that you can ever step out of the ranks of the “wage slaves” is when you are able to create something such that you can write it once, but sell it many times.   But nobody's going to go out there and “be nice to you.”   The world of business does not work that way.

I frankly think that many programmers have drunk the “free open-source kool-aid®” as a spectacular toast to their own naïvite.   They have utterly no concept of just how valuable their work can be, and for this reason they starve.   Trouble is:   their work starves with them.   It withers on the vine due to a simple lack of revenue, with the consequence that everyone who tried to rely upon their work-product, sees their efforts wither also.   No one wins.

There are many acceptable ways that you can negotiate a contract.   As a copyright owner, you have absolute discretion as to how you choose to license your work.   (And as a salaried employee, you might well agree to wind up with all of it being “a work made for hire,” in exchange for the security of a regular paycheck... which is not altogether a bad thing!)   But, no matter what you choose, it needs to make ongoing business sense:   for you, and for your product.   After all, both you and your product are going to live or perish by that decision.   And you may as well live.

So, is there “a bright-line rule” here?   No.   And that's my point.   Negotiate whatever you want to... but do not leave it to chance.

I have yet to see a single piece of significantly used software that has any kind of warranty attached to it (with the exception of avionics, perhaps).

It is always nice to be paid twice, however.

Hey, some of us like the kool-aid. It's sweet and sugary and makes you feel good inside.

Starvation can produce some of the strongest euphoria a mortal can feel. As long as you don't get carried away...

If you are worried about a revenue model to feed yourself and/or your family, I have full confidence in the ingenuity of man to devise a way to generate a constant source of income from one's coding without being a douche. In the long run, what's profitable for your client is profitable for you. It may not be business sense, but it's common sense. Money is not the most valuable thing you can earn for your work.


$,=qq.\n.;print q.\/\/____\/.,q./\ \ / / \\.,q.    /_/__.,q..
Happy, sober, smart: pick two.

There are limits here too - if someone continually is calling and asking questions, at some point or another you'll have to gently insist that this is taking enough of your time that your consulting rates will need to start applying for further questions (but you'll answer this one). If you work for the same company, it might be time to get managers involved for your own protection and so that you have this to put on your review come next time...

Um, no. Contact after the original contract, unless explicitly negotiated, is a time for renegotiation, not help.

I prefer to think of a little of this as paying forward: if I've helped establish a culture of helping, people who've worked with me will be more willing to reciprocate if I ask them for help.

And "help" isn't always "I don't understand this code"; sometimes it's "Got any leads on a new contract?" or I need a job - could you put in a good word for me at X?". If you've established that you will do a favor, you're more likely to get a favor.

Everyone's got their own call on this; this is mine, and it's worked for me. Yes, you do need to have limits. But you should also follow Wil Wheaton's advice.