What are a programmer's rights to what he writes?

Doug,

I've clipped your response to one of my earlier posts below for reference.
Your answers are so rational and correct, any reply would be better left
unsaid.  The scenarios I proposed were hypothetical, but depict conflicts
that do arise in the course of employment.

Thanks for your help.

<begin snip - from Doug Handy>

Nathan,

>In many cases, the need for a programmer to retain rights to his work can
>not be predicted.

The use of the word "need" above is arguably over-stated.

For the sake of discussion, let me play devil's advocate.  The
opinions expressed are not necessarily those of my employer (ie, me).

>a.    A highly creative programmer develops a product within the scope of
>his employment which soon becomes a commercial success.

Then he did his job well, and presumably got his full wages and
benefits during the course of his employment.  Isn't this what he
agreed to when he took the job?  Why does this create a "need" to
retain rights to the work?

You generally don't negotiate in hindsight -- you negotiate first.
Otherwise, negotiations would be done very differently I'm sure.  Why
is it "unfair" to pay him what was agreed upon?

Let's turn the tables around.  A multi-manyear project is a total
commercial failure, and the corporation loses ten times the amount the
company paid the programmer.  Should the guy at the top of the company
approach the programmer about reimbursing the company for loses?

Why or why not?  Is the first scenario "fair" and the second "unfair"?

>b.  A programmer, while working within the scope of his employment comes up
>with a great idea that would greatly benefit his employer.

(snip)

>So, the programmer decides to develop an inferior solution for his
>employer while he develops the superior solution on his own.  A potential
>for conflict?

More like a potential for a lawsuit.  It would be *very* hard to do
this legally, even on your own time using your own computer,
especially when the product fell within the scope of your regular
employment.

You would need very explicit written authorization from the company to
be able to pull this off successfully.  I'm not arguing here whether
that is right or wrong -- I'm just noting that is the way it is.

>c.  The programmer in scenario (a) is disgusted with the lack of fairness
in
>his employment.

Remind me again what was "unfair" in scenario (a).

>but he lacks the financial resources
>required to start his own business.

Not to mention that he may have signed a non-compete clause purporting
to restrict his ability to do that very thing for the market covered
by his current employment.  The non-compete clause may not even be
enforceable in court, but it can sure increase your start-up costs to
prove it.

>He finally decides that his current
>employment is his best option at the moment.  But, the quantity, quality
and
>creativity in his work declines.  A lose-lose scenario?

Why should the quality of his work decline?  If his current employment
is his "best option", and he is being paid what he agreed to, then
what is "unfair"?

If you feel your work has more value than your current compensation,
then renegotiate your position to include profit sharing, stock
options, the ability to moonlight and retain rights, or whatever.

Whatever the outcome of the negotiations, if you agree to work for a
certain set of terms, then what is "unfair"?  Is it "fair" to have the
quantity or quality of your work decline because you did not negotiate
your first offer?  Who is "unfair" in this scenario?

I'm reminded of the parable in the Bible about the laborers gathered
from the marketplace.  Each was promised a certain amount to work the
remainder of the day.  Those hired later in the day were paid their
agreed upon amount, as were those who were hired earlier.  Yet the
latter ones felt it was unjust to pay them what they agreed to when
hired.  Is it "fair" to demand more money in this scenario?  Is it
"fair" to pay them the original amount?  Why or why not?

For the record, I've been self-employed nearly my whole career, and
never had any employees.  I was an employee of a software firm for
about four years, and while there did in fact create some software
with great market potential.  However, instead of marketing it they
decided to keep it for competitive advantage.  They still have full
rights to it.  So I know where you are coming from.  Been there, done
that.  Didn't bring home the rights.

But I'm still curious as to why this is so "unfair", and if you also
feel it would be "fair" to recoup loses from an employee after a
commercial failure.

Doug
<end snip - from Doug Handy>


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