A new client asked for some advice about a service contract they received from a vendor. It was nothing unusual - besides a few minor complaints, I found the terms to be logical, straightforward, and fair.
But the process got me thinking... part of the contract included "work product", which are pieces of intellectual property which had been previously produced, and would be licensed to the client on fair and reasonable terms (non-exclusive, perpetual, etc.). A separate section outlined the "works made-for-hire" - where the client would own the resulting intellectual property - namely the copyright to the text.
I perceived a risk here, and although remote, I felt it was significant, and I think its apparent with most closed source software produced by independent contractors. When independent contractors deal with their vendors, they or their vendors may or many not understand their rights and obligations to each other and how it affects the intellectual property produced by their relationship. I was concerned that a former client may realize that the independent contractor is delivering software which the independent contractor created to new clients. The independent contractor thinks they own it, and so does the former vendor.
As far as I know, the new vendor is fair game for the former client to sue. Even if the former client is wrong and that they do not own the intellectual property, only a non-exclusive license, the lawsuit could be prohibitively expensive.
This danger is much less apparent (though still existent) with larger software purveyors, simply due to the fact that the large company would likely be the target of a lawsuit as opposed to their clients. Most good lawyers know to go after the richest offender!
Also, this danger is less apparent (though still existent) if the code is open source primarily because of community awareness. If an open source software project has published their code on the internet, anyone who thinks that they own the code should be able to realize this and put a stop to it if they so desire. If the publishing rights go unchallenged, it may be a signal that there will not be any trolling copyright claimants.
Note Bene - remember that the linux source code had been open for years before SCO decided to start suing over it. In the end they lost, but I'm sure their opponents paid some hefty legal fees defending themselves.
Also - when you use open source, you aren't alone. There is a very supportive community out there, including the EFF and the Free Software Foundation which occassionally step in to assist in cases where open source software rights and obligations are not getting honored or fulfilled.
Finally, a last note about why I think going with open source licenses for software is a great idea is the number of freely available, well tested licenses there are. There are some inexpensive proprietary boilerplate licenses, but writing a custom licensing agreement can be an expensive and laborious undertaking. Even when signed, sealed and delivered, its only as good as the parties understanding of it.
Am I being too hopeful that most people in the legal system fully understand the meaning of the popular open source licenses by now?
But the process got me thinking... part of the contract included "work product", which are pieces of intellectual property which had been previously produced, and would be licensed to the client on fair and reasonable terms (non-exclusive, perpetual, etc.). A separate section outlined the "works made-for-hire" - where the client would own the resulting intellectual property - namely the copyright to the text.
I perceived a risk here, and although remote, I felt it was significant, and I think its apparent with most closed source software produced by independent contractors. When independent contractors deal with their vendors, they or their vendors may or many not understand their rights and obligations to each other and how it affects the intellectual property produced by their relationship. I was concerned that a former client may realize that the independent contractor is delivering software which the independent contractor created to new clients. The independent contractor thinks they own it, and so does the former vendor.
As far as I know, the new vendor is fair game for the former client to sue. Even if the former client is wrong and that they do not own the intellectual property, only a non-exclusive license, the lawsuit could be prohibitively expensive.
This danger is much less apparent (though still existent) with larger software purveyors, simply due to the fact that the large company would likely be the target of a lawsuit as opposed to their clients. Most good lawyers know to go after the richest offender!
Also, this danger is less apparent (though still existent) if the code is open source primarily because of community awareness. If an open source software project has published their code on the internet, anyone who thinks that they own the code should be able to realize this and put a stop to it if they so desire. If the publishing rights go unchallenged, it may be a signal that there will not be any trolling copyright claimants.
Note Bene - remember that the linux source code had been open for years before SCO decided to start suing over it. In the end they lost, but I'm sure their opponents paid some hefty legal fees defending themselves.
Also - when you use open source, you aren't alone. There is a very supportive community out there, including the EFF and the Free Software Foundation which occassionally step in to assist in cases where open source software rights and obligations are not getting honored or fulfilled.
Finally, a last note about why I think going with open source licenses for software is a great idea is the number of freely available, well tested licenses there are. There are some inexpensive proprietary boilerplate licenses, but writing a custom licensing agreement can be an expensive and laborious undertaking. Even when signed, sealed and delivered, its only as good as the parties understanding of it.
Am I being too hopeful that most people in the legal system fully understand the meaning of the popular open source licenses by now?