Whose product?

by Eszter Hargittai on December 4, 2003

I am about to hire a programmer to write some code for me that will help collect data for my research. It suddenly occured to me that there will be a final product here and I have no idea who would have ownership of that product. I’m not trying to complicate things, I am just wondering. My preference would be to make the program available free of charge to other researchers who could benefit from such a product. But will I have the right to do that? What kind of agreement would I have to have with the programmer up front? Is she automatically the owner of the program? If I pay for all the time she spends on creating it and the program specifics came from me would it be mine to distribute freely? I suspect some of this might depend on what kind of agreement we come to ahead of time. Could I ask her to create the program under a Creative Commons license, for example Attribution-NonCommercial-ShareAlike 1.0? I realize I can certainly ask her and she could say no, but I’m wondering if that sounds like a reasonable approach.



Phillip J. Birmingham 12.04.03 at 8:33 pm

I don’t know where you are posting from, but here in the US, the standard approach is to just specify in the contract that copyright to the program is owned by you. Then you can release it under whatever license you like.


eszter 12.04.03 at 8:38 pm

Yes, I’m in the US. I was hoping not to get into too much legalese. And I certainly would hope not to have to file forms. I guess that’s not necessary.


blufive 12.04.03 at 8:38 pm

IANAL, but: If you’re paying, surely that makes it work for hire, with the rights ending up as yours? The “specify in the contract” noted above would surely be enough to make it watertight, too.


theCoach 12.04.03 at 8:43 pm

It would be best to be specific in the contract. There is a difference between a finished application and the source code that builds it. Quite possibly the person that you are hiring has already developed some software components that will make building your application much more cost effective – a case in which she would or should be reluctant to give you the ‘extra’ work. But certainly, having the source under a creative commons is a very reasonable request. It should, of course, cost slightly more, because you are getting more (and giving it away), but make sure it is in a contract.


jeremy hunsinger 12.04.03 at 8:45 pm

oh it gets sooo much more complicated if you want it to be. for instance, many universities have the policy that if it is university funded research, that they institution own the rights to it, not you, not the programmer. now for small projects which have little hope for future profit that is usually ignored but you never know…. it is always best to read the faculty handbook and the intellectual property guidelines before you make any decisions.


sq 12.04.03 at 8:47 pm

If you’re at a university and/or using university funds, the copyright may belong to the university; you might want to check with the administration on what kinds of distribution they’ll allow.


Kevin Brennan 12.04.03 at 9:04 pm

It would probably only be automatically considered “work for hire” if the person was a full-time employee.

However, it’s easy enough to put in the contract that you get all copyrights to the code in question. This would be normal terms for contract work.

That said, there might be an issue if the application uses any third-party components. They are likely to have some limitations on distribution and/or sales. If you want to distribute it freely I suggest you specify that the developer is to only use code that can be distributed under the GPL. That’s something most coders will get and it will guarantee that the code can be reused freely.


Tom Runnacles 12.04.03 at 9:39 pm

I’m utterly ignorant about the legal niceties here, but is it important to you that the code shouldn’t be reused commercially? Even if everyone else remains completely free to do what they like with it?

My own preference would definitely be for the Apache license, since it means that (1) nobody can ever lock down the code by making it exclusively proprietary, (2) there has to be attribution, but (3) commercial developers can reuse it without impact others’ rights if they want to.

If your developer is constructing a handy new jet-powered type of wheel, why should anyone anywhere ever have to reinvent it?


eszter 12.04.03 at 10:07 pm

Tom, that license does not mean that it cannot be used at all for commercial purposes. This seems relevant from the CC FAQ:
“When other people use or trade or copy your work, they cannot do so for ‘monetary compensation or financial gain,’ unless they get your permission.”


micah 12.04.03 at 10:08 pm

If you really care about how ownership works here, it’s probably a good idea to find a lawyer to draft or review a contract for you to make sure that it will do what it’s supposed to. I also agree with sq above–a call to the general counsel’s office at your university might help. Maybe they can give you some advice about this sort of thing.


anon 12.04.03 at 10:22 pm

The CC licenses are not intended for software. If you want a full copyleft effect for software, just use the most popular Free Software license, the GPL.

If you don’t want to go the copyleft route — that is, you want to allow the distribution of proprietary derivative works, use some GPL-compatible non-copyleft license, like the license of XFree86. The Apache license has the flaw that it’s not compatible with the GPL, so people won’t be able to combine the software with software under the GPL.

In the absence of a contract, whether a work is ” work made for hire” or not depends on whether the work is done by a “employee.” This is, IIRC, a balancing test of questions like, “Who managed the work?” “Who made creative decisions?” “Who bought and paid for materials?” “Who owned the tools?” Etc. If you want to avoid this uncertainty, sign a contract. It doesn’t have to be big and complex. The contract can either specify that the software will be licensed to you under X terms, or that the work is “work made for hire”, and thus that you are the copyright holder, or that the author of the software agrees to assign copyright to you after the work is created.

In any case, you should specify what hardware and software platforms this will run under, so that there aren’t problems with releasing it as Free Software later.

As for registration, don’t bother if your work is under a simple permissive license. If it’s under the GPL (or LGPL), and you intend to enforce the license, you should register the copyright. Use Form TX and see the Copyright Office’s Circular 61 for details. It’s a two page form — very simple.


Jon H 12.05.03 at 12:18 am

Nolo Press has a book of sample contracts, including contracts for software development. It has two that apply, one written from the perspective of the developer, one written from the perspective of the person who wants the work done.

It also includes discussion of each contract and the issues in contracting.


Anthony 12.05.03 at 2:00 am

In general, write the terms down in the contract you have with your programmer.

Think about what rights you want to retain, and what rights you’re ok with the coder retaining. It sounds like you want the right to be able to redistribute the program on a not-for-profit basis, but you wouldn’t really care if she went on to sell it for $100k to someone else. If that’s the case, you can let her retain copyright, but have her grant you a license to redistribute under certain terms that are mutually agreeable.


Barry 12.05.03 at 2:27 am

And test, test, test, test, test the code before you stuff all of your data into it.

I can’t give details, but if you don’t run a quick analysis of the initial subjects’ data immediately, things might be going wrong that you don’t detect until you’ve miscollected/misrecorded large amounts of data.


andrew s. 12.05.03 at 6:31 pm

“If you’re at a university and/or using university funds, the copyright may belong to the university; you might want to check with the administration on what kinds of distribution they’ll allow.”

In addition to that, if it is a university project, every one that I’ve worked at doesn’t allow individuals to enter into contracts on the university’s behalf–everything needs to be signed by a registered representative of the university (and thus reviewed by the counsel’s office beforehand–hence the relative importance of getting guidelines before vs. after the fact.)


eszter 12.05.03 at 8:59 pm

Thanks, everyone, for the input. It’s clear that I need to gather more information about how this works at the university (yes, this is a grant-funded project). I appreciate your comments!


Sidra Vitale 12.07.03 at 6:09 pm

There are licenses for almost everything, and if you specify with the programmer in advance what you want to release the code as (or not release at all), the programmer will either agree to work in that framework or not. (And if not, come see me, I’m a coder and available for work.)

One big thing for me as a programmer is whether or not I can reuse modules later that I have developed while working for you, and it’s one of the practical benefits of working with open source-ish code and developing open source-ish products. (I’m saying ‘ish’ to emphasize work where I get to take a copy of the source away with me, regardless of the precise nature of the license.)

Just wanted to give you a bit more of the programmer’s POV.


shanti 12.09.03 at 10:06 pm

I’m a statistical programmer who has worked only in research/university environments and I’m with Sidra on this one.

Most of us would expect that you would want to distribute this (after all, other researchers or programmers may want to replicate, verify, or modify your work, so I think it’s quite natural that the code should be freely available). I have never had to sign a specific contract to this effect; it was just part of the university rules that I was handed before hiring. I would be surprised if it were any different at your uni, but as others have mentioned it nevertheless it pays to check.

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