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

Nathan,

>Its not "next to impossible" for independent contractors.  Neither is it for
>employers and employees.  

I disagree.  When an IC is hired to do an entire project, the IC will
own the rights (unless agreed otherwise).  If as an IC, I am brought
it to fix some existing code, I don't pretend to have any copyright
claim to the lines of code I worked on.

I will only assert any copyright on things which will stand alone as
separate works.  I wouldn't even think about trying to make a claim in
the case of maintenance work for things I didn't completely author by
myself.

And I'm a one-man IC.  When hiring an IC firm, while the IC may have a
valid copyright claim for a stand-alone project, the individual
members of the team do not.

>This is like asking who owns the poems within a collection of
>poetry.  Individual authors may own the individual poems.  The publisher
>will own the table of contents - and the book the poems are printed in.

But again any single poem is typically written by a single poet, or at
least is a collaborative work done jointly at the same time.  I'm not
aware of anyone later changing a line in a poem, and then claiming
joint copyright with the original poet.

>You said yourself, in an earlier post, copyright does not apply to ideas.
>Only expression.  The expression in the design is distinct from the
>expression in the source module.  The resulting copyrights are also
>distinct.

So if you do the coding but not the design (and the design copyrights
are distinct), what good is the coding copyright to you?  You'd
infringe on the design copyright holder's rights if you
reuse/resell/etc any works including the design without permission.

>In software, the copyrights in a compiled object, or an entire application,
>will be distinct from the copyrights in the source modules embodied therein.

Boy, that ought to be a fun one to administer. 

>Hopefully, my previous answers have cleared up the misconception that
>copyrights are an all or nothing issue.  On the contrary, Ann Landers may
>hold the copyright to her column, the newspaper may hold copyrights to the
>paper (as a whole).  

But a syndicated column is still a separate work which can stand
alone.  Local editors aren't changing lines in the column; Ann isn't
changing the rest of the paper.  It is more like the collection of
poems; Ann is the poet, the paper is the publisher.  The copyrights
are distinct.  I still don't think it compares to modifying source
code.

>The law has provisions for joint works.  But a practical solution to this
>problem is a (n) percent rule.  If an author contributes (n) percent to the
>module, he's a joint owner.

I don't see this as practical at all.  How do you quantify the (n)
percent?  By source lines?  Do you include comments?  Whitespace?  Do
you include lines generated by the compiler for external definitions?
Do /Copy statements count once per system or for each module?  Do you
increase your percentage by not reusing code?  Are 100 lines of menu
source "worth" the same as 100 lines of MI code?  If you code each
keyword on a separate line, does your percentage go up?

If you use a design tool, and it generates lots of source lines, do
those lines of source have equal weight to other segments of code?

>>>Attrition happens; especially in this industry.  When you start
>>>modifying someone else's code, what do you suggest the new programmer
>>>owns?
>
>The (n) percent rule would apply here too.

Again, I just don't see the practicality of this.  For that matter, I
don't even see the advantage to it.  What do you propose to do with a
3% ownership claim to something that by your definition the employer
has equal rights to?

>Under today's law, companies will sue an independent contractors for
>copyrights by claiming he was an employee.  

But not very often, because then they would also be liable for back
payroll taxes, benefits, etc.  In fact, I can't name a single case
when that has happen (which is not the same as saying it never
does/did).  It is, however, *very* common for a company to require the
IC to give up the rights as part of the original contract.

And I don't know of any IC who claims copyright to modifications they
make to existing code.  Again, maybe it happens, but I've never seen
it in my 20+ years in this business.

>You have a problem with empowering employees?  In the case of
>insubordination, an employer can "let the employee go."

Much more likely to just make all employees sign over all copyrights
-- just like is quite commonly done with IC contracts.

>We're not dealing with cave-men here.  Management can implement controls via
>guidelines and procedures.  

Like an employment contract clause to retain exclusive rights... <g> 

It is almost a given it would happen.  If under current laws they
already commonly make you sign a non-compete clause (however
enforceable they are), they are sure to make you sign something to
keep from taking the exact source code with you!

Let's use your example of an employee writing something which after
the fact, is determined to be of great commercial value.  Let's even
say one employee did it by himself from scratch so we don't have the
(n) percent claim to worry about.  By your rules they both have equal
copyright rights to the code.

So let's say the firm decides to start selling copies for $1000 each,
and sales take off.  Does that mean the employee can start selling
copies for $750 each since he also has "equal rights"?

Or, if the advantage of keeping equal copyright to code is to allow
you to build a portfolio to take with you, does that mean you can then
reuse that code at another job?  (Can you spell competitor?)  If you
then insert the code into another company's application, does that
company then also have a claim to it?  If not, does their right to use
it stop when you quit or are terminated?  (Ha!  You can't fire me or
you can't print A/R invoices anymore!!!)  If they can continue to use
it, can you hire an employee for his portfolio contents, then fire him
pretty quick and keep running the code?

Sorry, I just can't see it working in practice.  I don't even see the
theory of why an employee *should* have copyright claim to the lines
of code he modifies.  What in the world are you supposed to do with it
if you only have non-exclusive rights to (n) percent?

Maybe I'm dense, but I just don't get it.  What is the advantage?
Don't you think that every company lawyer would immediately recommend
employment contracts which assign all rights to the employer?

Doug
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