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[Jim Allman <jim AT ibang.com>]

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=

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