Re: Ownership of work?

David, I almost hate to have to give this answer to the question you
posed, but I really have to because of my experience with the subject.

The guy who owns the work is the one with the better lawyer. In most
cases, the employer won't have trouble keeping ownership of a product
they commissioned. If your friend doesn't have the ability to protect
his work in court and it is valuable enough to the employer, no matter
what he signed or didn't sign he will not be in control.

For him to retain control of his work he should deliver it with a
license agreement that the user (xyz) signs. You and I know that isn't
likely to happen. Even if your friend does not sign that (below)
agreement and xyz corp keeps him on, if he should take the software
developed there and sell it elsewhere xyz would be able to block the
sale indefinitely via the courts and is really unlikely to lose. But
that would mean it would have to be worth it to them to do that.

I wish that there was a more clear cut example, but the problem with
civil law is that it is in the end decided in a court. It always comes
down to a question of who is willing to pay more to litigate it. The
only time you get a decision that is based on contract law is if both
sides litigate to the end and that never happens.

So if your friend can get an officer or rep of xyz to sign his license
agreement to his software he's in a stronger position. But I can tell
you that xyz could still litigate if they wanted to claim that your
friend assured them verbally they'd have first right of refusal on
exclusive rights or some such. His best chance of winning all litigation
would be to show he had the software before approaching them and that he
had a distribution or marketing plan that he pursued which included
other customers and that this plan was in place before the software was
sold to xyz.

David Gibbs wrote:

> Folks:
>
> Who owns the work?
>
> Obviously, if programming is done on an employers time, using employers
> resources (hardware, office space, software, etc), they own the code.
>
> However ... what if a programmer does work on his own time, using his own
> resources (say, an account on Netshare400) ... but it's code ... does the
> employer have any claim on the resultant code?
>
> A friend of mine is encountering this type of situation ... he was
> presented with a new employment contract that states "Any software
> developed while employed by xyz corp is the sole property of xyz corp"
> (or
> something to that effect).
>
> Ideas?
>
> david


--
Chris Rehm
javadisciple@earthlink.net

And thou shalt love the Lord thy God with all thy heart...
...Thou shalt love thy neighbor as thyself. There is none other
commandment greater than these. Mark 12:30-31