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  • From: Jim Allman <jim AT ibang.com>
  • To: "Internetworkers: http://www.ibiblio.org/internetworkers/" <internetworkers AT lists.ibiblio.org>
  • Subject: Re: [internetworkers] does the client have the right to have my source code?
  • Date: Fri, 28 Apr 2006 10:04:43 -0400

Disclaimer: IA(obviously)NAL

On Apr 28, 2006, at 3:38 AM, Tarus Balog wrote:
Most work you do as a consultant to another company falls under the
category "work for hire". In that case there is usually a clause in
the contract that states the hiring company owns, in its entirety,
your work product: i.e. your application and your source code. They
are paying you to write it, thus they want to own it. It's very common.

And herein lies a problem, esp. for consultants, which is the proper handling of "background technology."

Clients typically hire a consultant for their prior expertise in the problem domain. Meaning that the consultant has done similar work, and the client hopes to benefit from that experience.

Frequently this experience is embodied in tools (code libraries, templates, etc.). Like a skilled cabinet maker, a good developer will build special tools that encapsulate knowledge and make the job go more smoothly. These represent a long-term investment, and also a "snowball" of added value that is available to succeeding clients. In contracts, these tools are called "background technology" or "consultant's materials." (And probably other terms as well. Anybody?)

So when background technology is used to build a solution, who owns the background technology? Depending on how a given solution is built, these tools might be part of the source code, or might have *generated* that code. (This begs the question of what "source code" means, if a code file is an artifact of another code-generating tool. Discuss!)

Obviously, it's best to clarify the boundaries between the solution (the "work for hire") and background technology, or you might forfeit the right to re-use your own tools! I sometimes use a consulting agreement with a place where these tools can be itemized.

I've found that a win-win arrangement is to grant the client a non- exclusive right to reuse/repurpose/etc the background tech, while also retaining those rights for myself. Nominal ownership is a minor issue IMO, it's the *rights* that count.

Bonus fun fact: It is my understanding that, in the absence of a contract, all rights and ownership belong to the creator.

=jimA=

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Jim Allman
Interrobang Digital Media
http://www.ibang.com/
(919) 649-5760





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