Who Owns the Code? A Brief Guide to Software Ownership for Developers and End-Users


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Who Owns the Code? A Brief Guide to Software Ownership for Developers and End-Users

  1. 1. Who Owns the Code?A Brief Guide to Software Ownership for Developers and End-Users April 20, 2011 Brad Frazer bfrazer@hawleytroxell.com 208.388.4875 @bfrazjd
  2. 2. Why Do You Care?• Premise is that you, as a developer, code writer or content creator, are an author, and that as an author your creative works are valuable and generate revenue for you and your clients.• Corollary premise is that you, as an end user, wish to have rights to fully use the software you paid to have developed.bfrazer@hawleytroxell.com / @bfrazjd
  3. 3. “Microsoft made a call to SCP and quickly licensed 86-DOS forunlimited use by a "secret customer" for a one-time fee of $25,000,and in turn licensed the DOS to IBM for a one-time unlimited usefee of $80,000. Although this made a profit for Microsoft, to IBMthis was quite a bargain, and would allow IBM to charge a relativelylow fee for the operating system to its customers. In considerationof the low license fee, Microsoft bargained to retain the rights tolicense the operating system to other manufacturers as well.Microsoft believed it could make MS-DOS the industry standard forall PCs based on the 8086 or 8088 processor, and this type of dealwould allow Microsoft to retain control over DOS. IBM andMicrosoft signed what would probably become the most importantdeal in computer history on November 6, 1980.”http://e-articles.info/e/a/title/A-Brief-History-of-DOS/bfrazer@hawleytroxell.com / @bfrazjd
  4. 4. “Software” is Inherently a Copyright Concept• Software (source code) is copyrightable subject matter.• Therefore, any discussion of software ownership requires a discussion of certain basic copyright law principles.• Yes, patent rights can be implicated as well. . .bfrazer@hawleytroxell.com / @bfrazjd
  5. 5. What is a Copyright?• A property right that springs into existence when a sufficiently creative idea is reduced into or onto a tangible medium.• Nothing more need be done to CREATE a copyright: when you code, you create a copyright in the source (insert “open source caveat” here).bfrazer@hawleytroxell.com / @bfrazjd
  6. 6. Copyright – Exclusive RightsOnly the copyright owner can lawfully:• Make copies• Create derivative works• Distribute copies• Publicly perform the work• Display the work 17 U.S.C. Section 106bfrazer@hawleytroxell.com / @bfrazjd
  7. 7. Copyright Ownership• In general, the author owns the copyright and is the only one who may exploit the exclusive rights.• Distinction between the media and the copyright.• But, who’s the author? • Generally, the person who physically captures the idea into the tangible medium.• But: the “Work Made for Hire” doctrine . . .bfrazer@hawleytroxell.com / @bfrazjd
  8. 8. A Work Made for Hire Is . . .• A work prepared by an employee within the scope of his or her employment; or• 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. 17 U.S.C. Section 101bfrazer@hawleytroxell.com / @bfrazjd
  9. 9. Therefore:• Author owns the copyright and thus “owns the code.”• Unless: • Author is an employee; or • Code is a WMFH as defined; or • Author assigns copyright in signed agreement.bfrazer@hawleytroxell.com / @bfrazjd
  10. 10. How Do You Control How Those Exclusive Rights Are Used?• Why does it matter?• The license is the key . . . • Exclusive license? • Vernor v. Autodesk?bfrazer@hawleytroxell.com / @bfrazjd
  11. 11. The Moral of the Story:• For developers: does your price contemplate that you are giving up the copyright?• For owners: do you own the copyright in the code you paid to have developed so that you may fully exploit it?bfrazer@hawleytroxell.com / @bfrazjd
  12. 12. Thirty Seconds on Open Source . . .• Implications to developers• Implications to owners and end usersbfrazer@hawleytroxell.com / @bfrazjd
  13. 13. THANK YOU! Brad Frazer Hawley Troxellbfrazer@hawleytroxell.com @bfrazjd