Re: What are a programmer's rights to what he writes? -- MIDRANGE-L

Nathan,

Disclaimer: IANAL.  Also, all comments pertain to the USA only (I have
no idea what the laws are outside the USA).  

>Is it illegal for a programmer to use source code he was employed to write?

Clinton-eese answer:  It depends on what the definition of "use" is.  

>My question is what rights do programmers have to their works?  

I'll assume here that we are restricting the context to employee
programmers.  Independent contractors fall under a very different set
of rules.  Of course, the distinction of employee vs independent
contractor is not as clear as one may suppose either, but that is
another matter.

My comments will be assuming the position of an employee (or employee
of an IC writing code for the IC's client -- in which case you are
still an employee).

What rights do programmers have?  Next to none to the actual source
code.  Code snippets for the sake of showing style *may* fall under
the safe haven of "fair use", but I'd be careful in picking what code
snippets to use.  Keep them short (relative to what they are derived
from), and make sure they don't reference anything that could even
potentially be construed as a trade secret or proprietary knowledge.
There should be plenty of code which shows style but is generic enough
to not have any references to company specifics.  Stick to it.

You don't have the right to take copies of the source code with you
when you leave, which translates to not being able to pick code
snippets later because you legally couldn't have anything to pick them
from.  That means I'd suggest the code snippets be picked before
leaving, and documenting the timing somehow.  A printed date on the
code snippet listing may not be sufficient.  A separate copy printed
and mailed to yourself via registered mail (and which remains sealed)
may be sufficient (remember IANAL).  The postmark should obviously be
prior to the termination date.

That being said, copyright extends to the particular expression of an
idea, but not to the idea itself.  IOW, the actual source code belongs
to the employer, but (ignoring trade secrets temporarily) you could
recode a similar concept from scratch and be safe.

For example, let's say you developed some service program routines to
encapsulate database I/O  or some other common functions.  The actual
source code could not be "used", but the concept could.  Often it is
possible to think of ways to better a design or i implementation when
given the chance to redo it.  This makes for a prime time to end up
with something better than the original code anyway.

Be careful of anything which could be argued to be an industry trade
secret, particularly if you signed an employment contract which
contained a non-complete clause and/or you end up working for a
potential competitor.

Remember that most companies have deeper pockets than most
individuals, and can more easily afford to bring a nuisance suit even
if they weren't sure they could win a trade secret or copyright
infringement claim.  Unless they could be held liable for your
attorney fees, you could very well end up "losing the war" even while
winning every courtroom battle.  What good is to be right if it
bankrupts you, or takes enough of your time to keep you from
productive employment?  Lawsuits either take a lot of time, or money,
or both.

The bottom line is "avoid all appearance of evil".  And if you do need
a lawyer, try not to hire Douie, Cheatum & Howe.

>And, in your opinion, what rights should a programmer have?

The right to cash their check. <g>  The employer is taking all the
"risk" and the law rewards them with solely owning the work.  If that
isn't acceptable for the wage offered, then it should be negotiated
(up front, in writing).  If you want to take something with you, ask
first. Or ask for permission to post the code publicly.  If they allow
that, it would (should?) be safe to reuse.

Doug
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