oster@dewey.soe.berkeley.edu (David Phillip Oster) (08/15/88)
An Open Letter to Contract Programmers.
Many contract programmers now work on a "Work for
Hire" basis, The definition of "Work for Hire" means
that all writings produced within the scope of our
employment are owned by our employers. "Work for
Hire" is completely unfair. Think twice before you
sign any "work for hire" contract, and better yet,
refuse to sign.
Contracts of this sort steal from us the very
professional competence that made us attractive to
our employers in the first place.
In addition, there is a class of contract employees
who habitually produce works for companies, and who
are never requested to sign such onerous contracts:
the very lawyers who write our contracts.
One test I use for the power of a software tool is
the Recursion Test: would this tool have been useful
in the creation of itself? Examples: It is easier to
write a C compiler in C than in assembly language.
It is easier to write a parser generator if you
already have a parser generator to express the input
language. In each case, the tool is worth writing
because it offers leverage in at least one task.
Now let's look at a "work for hire" contract. Let's
apply the Recursion Test to it.
A lawyer made a contract with the company to produce
that document. That lawyer certainly didn't accept a
work for hire agreement: it would have prevented him
from selling similar contracts to any other firm.
Why should you accept worse terms than the author of
the contract?
A lawyer and a programmer are both highly trained
professionals, well acquainted with the body of
knowledge that comprise our respective fields. Both
sell complete documents to companies, contracts in
one case, programs in the other. Both build their
personal experience, embodied in the components that
make up the complete works. Only the lawyer retains
the right to use those components in future works.
Why? Because we have not stood up for fair and equal
treatment.
Sign contracts that let firms buy our complete
products, but retain your ownership of the pieces.
Hold out for at least as good terms as the lawyers
who write the contracts we are expected to sign!
--- David Phillip Oster
Arpa: oster@dewey.soe.berkeley.edu
Uucp: {uwvax,decvax,ihnp4}!ucbvax!oster%dewey.soe.berkeley.eduroetzhei@sdsu.UUCP (William Roetzheim) (08/16/88)
In article <25638@ucbvax.BERKELEY.EDU> oster@dewey.soe.berkeley.edu.UUCP (David Phillip Oster) writes: >An Open Letter to Contract Programmers. > >Hire" is completely unfair. Think twice before you >sign any "work for hire" contract, and better yet, >refuse to sign. In the broad sense Phillip Oster uses in looking at this problem, his arguments do not seem to make sense to me. The bulk of his argument involves comparing programming to the 'work' (I use the term loosly :-) ) lawyers do. This comparison does not make much sense. It would be much more logical to compare programming to hardware engineering or research and development. In both of these areas, the company is exposing the employee to corporate trade secrets, strategies, etc. and is paying for what is primarily creative effort. Most people agree that R&D patents, copyrights, trade processes, schematics, etc. developed by an employee on company time belong to the company. Why should software be any different? I do, however, agree with Phillip if we restrict the argument a bit. I believe that the company 'owns' everything produced on company time. This means that programmers can not code on company time and then take the code (or fragments of the code) home to use for other purposes. I also believe that knowledge entrusted to an employee by the company to do his/her work belongs to the company and can not be used for personal gain. On the other hand, I believe that a programmer (or anyone else) has the right to use his/her talents and skills to produce code/algorithms/etc. on his or her own time, and that the company has no rights to these items. Some States (CA is one) have laws which say basically the same thing. WHR
imp@crayview.msi.umn.edu (Chuck Lukaszewski) (08/16/88)
In article <25638@ucbvax.BERKELEY.EDU>, oster@dewey.soe.berkeley.edu (David Phillip Oster) writes: > Hire" is completely unfair. Think twice before you > sign any "work for hire" contract, and better yet, > refuse to sign. > Please reconsider your opinion. Do you mean to imply that no one should be able to buy pieces of art -- that we must simply license them? Do you mean to imply that the video movies we buy at the store should be revokable at any time? That we license toilet tissue? In all seriousness, the point of work-for-hire is that you get compensated to develop a program. It sounds to me like you just wrote a piece of software and realized too late how much it was really worth. Well, that is why you negotiate up front. In fairness to you, there are many many software companies that do nothing more than exploit programmers. But if you are indeed compet- ent, and especially if you have specialized knowledge, you can set a price and negotiate it. And you have the power to say 'no' at all times. I've been burned and I've had some good experiences in doing contract work. I know the legal ramifications. And I think that it is a very reasonable way of doing the work. Besides, most companies won't hear of not owning the soft- ware that the contract out. What happens when you get hit by a train and you are the only posessor of the source code to XYZ company's accounting package? No, as the president of a computer-aware company that is unacceptable to me. BTW, there are tremendous tax and benefit advantages to a work-for-hire. The law differs from state to state, but at some point recently, for example, a work-for-hire in California meant that you were entitled to benefits from that corporation. And there are limitations on social security that you have to pay if it states in the contract that you are an 'independent contractor.' ---===---===---===---===--/* Chuck Lukaszewski */--===---===---===---===--- ARPAnet/NSFnet/MRnet: AppleLink: SnailMail: Ma Bell: imp@crayview.msi.umn.edu UG0138 Minneapolis MN 55418 612/789-0931
sbb@esquire.UUCP (Stephen B. Baumgarten) (08/16/88)
In article <6682@umn-cs.cs.umn.edu> imp@crayview.msi.umn.edu (Chuck Lukaszewski) writes: >I've been burned and I've had some good experiences in doing contract work. >I know the legal ramifications. And I think that it is a very reasonable way >of doing the work. Besides, most companies won't hear of not owning the soft- >ware that the contract out. What happens when you get hit by a train and you >are the only posessor of the source code to XYZ company's accounting package? >No, as the president of a computer-aware company that is unacceptable to me. There's a difference between owning a software package and having the source code to it. We have Pyramid's Unix source, but we sure don't own it. We also have the source to a blacklining program a consultant wrote for us; while he owns it and can sell it to other firms, we reserve the right to maintain it ourselves should he ever decide to abandon us as a customer. Of course, we also have the right to sue him off the face of the Earth, should that happen (one of the advantages of being a law firm). Sometimes it's better to be hit by a train... :-) -- Steve Baumgarten | "New York... when civilization falls apart, Davis Polk & Wardwell | remember, we were way ahead of you." {uunet,cmcl2}!esquire!sbb | - David Letterman
marc@rna.UUCP (Marc Johnson) (08/16/88)
In article <3110@sdsu.UUCP> roetzhei@sdsu.UCSD.EDU (William Roetzheim) writes: >In article <25638@ucbvax.BERKELEY.EDU> oster@dewey.soe.berkeley.edu.UUCP (David Phillip Oster) writes: >>An Open Letter to Contract Programmers. >> >>Hire" is completely unfair. Think twice before you >>sign any "work for hire" contract, and better yet, >>refuse to sign. > > I do, however, agree with Phillip if we restrict the argument a bit. >I believe that the company 'owns' everything produced on company time. >This means that programmers can not code on company time and then take >the code (or fragments of the code) home to use for other purposes. > I generally agree with this point, provided there is some clear definition of "company time". My contracts often try to include anything done on "company equipment," which I have some problems with. >... I also >believe that knowledge entrusted to an employee by the company to do his/her >work belongs to the company and can not be used for personal gain. On the >other hand, I believe that a programmer (or anyone else) has the right to >use his/her talents and skills to produce code/algorithms/etc. on his or >her own time, and that the company has no rights to these items. > Be careful here..."knowledge entrusted to an employee" is a very broad statement. I did some work for a bank in New York and the contract basically stated that they owned my brain and everything in it! Working for a company on a project, you cannot help but be exposed to information that you would not otherwise have known. Unless this is "proprietary" or "trade secret" in nature (unique to the company and solely developed by them), I don't see how one can be restrained from using whatever the hell you learned working on the first project on the next one. I even think it is perfectly reasonable for to you to write the exact same type of system (hopefully fixing all the things you did wrong the first time) for someone else, provided you don't actually copy the code. This amounts to employing techniques, concept and ideas that you developed/learned in your first project. This is learning! This is life! Working for someone doesn't remove your humanity. By the way, your attempt to restrict the argument to other "technical" fields is unreasonable. Many of the same principles apply to virtually all other free-lance type work: writing, film, architecture, CERTAINLY law, accounting, consulting engineering, etc etc etc. You mean to suggest that a lawyer drafting contracts for a company or an accounting reviewing the books doesn't have access to certain "inside" information? A lawyer can re-draft an identical contract for another company, employing form, wording, and anything other knowledge gained by working on the first contract. Ditto the accountant solving a tax problem, for example. You can't own someone's brain, no matter who tries to do so!!!!! Marc Johnson
kurtzman@pollux.usc.edu (Stephen Kurtzman) (08/17/88)
In article <6682@umn-cs.cs.umn.edu> imp@crayview.msi.umn.edu (Chuck Lukaszewski) writes: >Please reconsider your opinion. Do you mean to imply that no one should be >able to buy pieces of art -- that we must simply license them? Do you mean >to imply that the video movies we buy at the store should be revokable at any >time? That we license toilet tissue? When you buy a movie on video tape you have, in essense, a limited use license. You may watch the movie anytime you want. You may make backup copies, if there is no copy protection scheme (and sometimes even if there is :-). You do not, however, own the piece of art. You may not make copies for others to use. You may not charge admission to view the movie. The same holds true for any other copyrighted material you buy, be it text, photo, or video. I haven't the foggiest idea what you feel is the analogy between toilet tissue and art. >[...] if you are indeed compet- >ent, and especially if you have specialized knowledge, you can set a price and >negotiate it. And you have the power to say 'no' at all times. I think that is what the original poster said. But he went further and advocated saying no. >Besides, most companies won't hear of not owning the soft- >ware that the contract out. Most companies would buy a copy of a program that solves their problem rather than contracting out. It is cheaper. If you wish to retain rights to your software perhaps you should demand less money, or not work on an hourly basis.
tenney@well.UUCP (Glenn S. Tenney) (08/17/88)
A few comments re: the original and another followup... 1. Yes, some states (CA is one) have laws protecting EMPLOYEES. These laws do *not* cover contractors. 2. As for a contractor, well you are usually paid a hefty sum or your work. If you want to retain rights, then negotiate those terms. Without such negotiations, you are right, the people paying for the work own it. No one is 'forcing' you to do the work there. However, if I hired you to develop, an accounting program for my business, I wouldn't want my competitors getting it from you --- would you? 3. This is a bit similar to hiring an artist to do custom work. If you buy their existing (or modified to your desires) work, then the rights usually remain with the author/artist. If, you hire that artist to be an almost employee and do the work under your close supervision then you are usually entitled to the rights. Glenn Tenney
johnson@c10sd1.StPaul.NCR.COM (Wayne D. T. Johnson) (08/18/88)
In article <3110@sdsu.UUCP> roetzhei@sdsu.UCSD.EDU (William Roetzheim) writes: > >I believe that the company 'owns' everything produced on company time. >This means that programmers can not code on company time and then take >the code (or fragments of the code) home to use for other purposes. I also >believe that knowledge entrusted to an employee by the company to do his/her >work belongs to the company and can not be used for personal gain. On the >other hand, I believe that a programmer (or anyone else) has the right to >use his/her talents and skills to produce code/algorithms/etc. on his or >her own time, and that the company has no rights to these items. Some >States (CA is one) have laws which say basically the same thing. > >WHR Minnesota also has a law that states that anything that is produced on your own time with your own equipment is yours, and that any intellectual properties agreement stating such are null and void. There are also court presedents that state that is you are required to sign the agreement after you are hired (vs. signing in order to be hired) that it is void. There is one major complication, just what is company time? Many (if not most) companies offer Flex-Time for its professional staff. If you can work your own hours, what is company time. Also, if you are a salaried employee, you are paid for the tasks you do, not the time you spend. I have also heard of a case where an employee developed a product in his spare time (at the office), on company equipment. After he began selling this software himself he was fired and the company sued to prevent him from selling this product. The court ruled that since the company had not planned the product (and thus the employee had not been asigned it as a task), nor was it impacted by the use of its equipment, that the company had no right to the product and the employee continued to make a merry profit. Disclaimer: I am not offering legal advice, just stating my viewpoint. Consult with professional legal consul before making any major decisions. was allowed to continue to sell it. -- Wayne Johnson (Voice) 612-638-7665 NCR Comten, Inc. (E-MAIL) W.Johnson@StPaul.NCR.COM or Roseville MN 55113 johnson@c10sd1.StPaul.NCR.COM These opinions (or spelling) do not necessarily reflect those of NCR Comten.