Who Owns the Code? CE Industry’s Dirty Little Secret

I haven’t read everyone’s comments, so I don’t know if anyone has touched upon this, but let’s consider copyright law:

The copyright for any work that’s done under contract belongs to the party who paid for the work to be done. Thus it follows that since custom code is generally written under some sort of contract it automatically becomes the property the customer.

Frank, you are so very wrong. Check your facts. I have litigated this very issue in Federal court.  The assignment of intellectual property rights requires a specific provision regarding same in a written contact. “Some sort of contract” doesn’t cut it. Absent a specific assignment, he who wrote it, owns it.

Henry, I still differ with you in my interpretation of the law. I would argue that custom software design constitutes “work for hire.”

According to the U.S. Copyright Office:

“(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”

See: http://www.copyright.gov/title17/92chap2.html

I think that’s pretty straightforward.

As I said in my prior post, I’m pretty confident that that mean if I’m an “employee”.  In other words I work for ABC Custom Controls and I write some code for a client, “I” don’t own the code as the developer, ABC Custom Controls owns the code.  NOT the client.  I’m pretty sure this has been born out in many cases as Henry pointed out.

According to the Definitions section of the Copyright Act:

A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

see: http://cyber.law.harvard.edu/property/library/copyrightact.html

Part (1) is obvious and supports your claim, however part (2) could be subject to interpretation. I doubt that there’s enough money at stake here for a definitive judgement, as it relates directly to our field, to ever be made.

It seems to me based on all of this that ownership of the code should be agreed to before the work begins. Since the customer is the one who has to live with the system, it’s in his interest to demand the source as a condition prior to the sale.

It seems like the essence of this arguement is that programmers don’t feel they are being paid enough for their programs.  Perhaps if they earned more, they wouldn’t feel bad about turning over the source code.

What are YOU charging?  $100? $125? $150? $200? an hour?  I just saw an invoice from a roofing consultant who was charging those rates for consultation on ROOFING for goodness sake.  We are brain surgeons by comparison.  We should all try to charge a rate for programming that is commensurate with its value and the expertise that goes into it.  I propose $250/hr. for CN, Lutron, RTI, etc.  Oh - but only $20/hr for Control-4 which is all it’s worth.

“It seems to me based on all of this that ownership of the code should be agreed to before the work begins. Since the customer is the one who has to live with the system, it’s in his interest to demand the source as a condition prior to the sale.”

Frank…  I absolutely agree.  My only concern is that just because a contractor wants to do “the right thing” and proved software might not be enough.  Unless it is stated in the contract there could STILL be problems down the road.  And for those of us who feel that our software is unique enough to want to keep it protected, we can do that as well.

Great discussion!

Oh my God!  This discussion is absolutely UNBELIEVABLE!  Man, you guys are really KILLIN’ me here, with all this CRAP ON THE CUSTOMER GARBAGE, unless he / she is a Lawyer, a Programmer; or, a Contracts Manager and is smart enough to out-wit you on your communist China software controls!  GIVE ME A BREAK!  I don’t give a rat’s ass what the Law says, or does not say, about the Intellectual Property Rights or the Work for Hire.  THIS IS REALLY ABOUT the PROPER WAY TO TAKE CARE OF YOUR CUSTOMERS!  This is NOT ABOUT how YOU CAN SELFISHLY INTERPRET THE LAWS TO BENEFIT YOURSELF and SCREW YOUR CUSTOMERS!!!!  Just because you CAN screw them, by not giving them the code, because they are usually too busy, or too naive, to ask for it during the contract negotiations, doesn’t mean that you should not give them the code, just because you know how CRITICALLY IMPORTANT it is, and they don’t.  In fact, if the law does allow this garbage to persist, by just not writing it in the contract; then, IT IS OUR DUTY TO AUTOMATICALLY PUT IT IN THE CONTRACT to demonstrate to our Customers WHAT WE ARE REALLY ALL ABOUT.  If YOU don’t GIVE THIS SOFTWARE TO YOUR CUSTOMER, by just being silent, then your no better than Pontius Pilate and your a CRITICAL PROBLEM FOR OUR INDUSTRY.  When I die, I would like to see how you explain that position to St. Peter, at the Pearly Gates.  “Well, St. Peter, I was just protecting my investment in my property.  Just because my Customers didn’t know any better, and I totally screwed their future software work with anybody but me, doesn’t mean I meant any harm to them.  C’mon, please let me in.”  St. Peter says, “Well, sorry pal.  I’m just protecting OUR investment in Heaven.  We DO NOT WANT, and WE DO NOT ALLOW, ANYBODY INTO HEAVEN WHO KNOWINGLY SCREWED ANYBODY, FOR ANY REASON.  It’s really all about HONESTY, INTEGRITY, CARING FOR YOUR CUSTOMERS and BASICALLY, JUST DOING THE RIGHT THING.  Up here, your laws do not matter.  Up here, it’s all about WHAT WOULD JESUS DO?  So, I’ll catch you later, after you do some time in the Pergatory Site.”  Ha, Ha!  Anybody, and I do mean anybody, who tries to justify this pure rip-off position really needs to take a Business Ethics class at a Catholic College.  This is exactly what is wrong with our public school system…..no ethics ever get taught.  I have never heard such unbelievable greed and self-aggrandizement in my life.  This is exactly why most Customers do not TRUST us; or, why they don’t trust anybody selling them anything that they do not fully understand.  THEY FEAR US, because THEY SHOULD!

@YoSappy:

I agree with you 100%. However, (as I too was brought up Catholic, went to a Catholic School, and was an Altar Boy), I no longer believe in the boogie man or any religion.

I don’t mean to proselytize any religious views on this site, but when 60% of Americans don’t believe in evolution, and people kill in the name of their God, it’s simply not logical and foolish.

However, as long as you do unto others… we are all entitled and have the right to believe in whatever we want.

With religion aside, your comments on this issue are right on target in my opinion.

“No one in our industry should be innovating anything.  It is too costly and according to the majority here, should be handed over to their competition.  By the way, you should do an article telling the architect to give up their Autocad code blocks and database with the drawings.  DTools users should be giving up their databases along with the drawings to the project.  Oh, here’s another, why doesn’t Crestron give up their code as well?  Maybe the customer would want to fix the bugs in their compiler at the same time as adding features to their home.  Maybe even add the capability to features that aren’t supported by Crestron.  What about Control 4?  What if the customer wants features that aren’t supported by their code, should they really be locked into the way Control 4 thinks it should work?”  (sarcasm)  Doesn’t the whole premise of giving the code remove any reason to innovate and do things for the customer that are far above the industry average?  The customer will ultimately lose and the dealers will all look the same.  I bet all of you drive the exact same car, because they offered to give you the code that runs the electronics in it, right?

@digitales:
If you don’t wish to post your real name, may I suggest you switch from naming yourself after a deadly prescription drug to, “Phoenix,” due to bringing this dead thread alive again…

Some of you GREEDY schiesters don’t understand the difference between a MANUFACTURER & an INSTALLER!  A Manufacturer does not provide the code because the Customer can buy a different product.  An Installer, however, must provide the code because his Customer IS STUCK WITH HIS INSTALLATION & CANNOT BUY A NEW INSTALLATION VERY CHEAPLY!  It’s more that their Customers are buying a service instead of just a product.  Therefore, INSTALLERS SHOULD INCLUDE THEIR CODE, NO MATTER WHAT!  It’s that simple.

What’s really “simple” is that it doesn’t really matter what you “think”.  As a country governed by LAWS, the law wins.  And the law clearly states that the author of the code OWNS the code unless it is stated otherwise in the contract.  So, irregardless of what is right and wrong, that’s the law.  Me personally, I’d include the code.  And if for some reason I felt that something that I was doing was really novel and new then I’d explain that in the contract and let the customer decide if he wanted to pay extra for the code or not have the code.

It’s really all about effective communication with the customer.

Jim

Jim,
I agree with you. However, (because you seem to, “get it,” and appear to be intelligent), there is no such word as, “irregardless.” This is/was a very long heated thread, and don’t give others the opportunity to pounce on your logical & sensible conclusion over a very commonly used grammatical error.   

Again, I’m in your camp & agree with you.

“re-interviewing the clients, determining their preferences, learning how they live, and doing all those invasive things that the homeowner dreads”

Haha

Yeh right, as if that ever happens!!