foo_48120 asks:
"My small development shop, myself and four employees, is taking on a fairly large job that will run a substantial part of the clients business. To protect themselves they want the source code to the project. Frankly I don't blame them. We bid aggressively to get them to underwrite our own efforts to build this code, which we plan to resell again and again. That is the basis for our company.
I have no problem with them holding the source but need to make it clear that we own the code and that they have a license to use it in their business. They may at their discretion hire others to modify the code, but would still be required to pay their maintenance contract and be prohibited from reselling it or using it to run an additional business. How do you provide open source without escrow, yet protect what we are documenting up front as out intellectual property rights in the ownership of this code?"
Of course third party developers may break things and we would not be responsible for that or for fixing it without further renumeration.
Ideally, if we make them happy then we will do all future upgrades and add on modules as well. I am not worried about that. I do want to know if anyone has experience in the writing of such a licensing agreement? Perhaps they could provide me with a sample copy of their text?
Let's leave aside for now the issue of totally open source vs. closed source. There are times when you want the product to be proprietary as we do, however I want them to feel comfortable using our code so that if a proverbial plane were to fly into our building and wipe us all out then they don't go down the tubes with us."
Signed contract... good lawyer. (Score:5, Informative)
Escrow (Score:2, Informative)
Contractual Clauses (Score:5, Informative)
Additionally, create an Intellectual Property clause in the contract spelling out specific ownership rights/responsibilities.
Insert IANAL comment here.
Outstanding service and support (Score:4, Informative)
My company (Score:5, Informative)
There are two basic ways (as we see it) to do this. Keep ownership and grant a license that has a specific list of allowed uses or just the reverse where you give them ownership but retain specific license for yourselves.
You can usually make it work as you need it with either party having ownership, since ownership just means they have final say, can change the license, and get any non-specified (default) rights.
Keeping in mind this is only one small part of the whole contract and I don't promise this is safe or useful for you as it is... here is a paragraph right out of our standard contracts:
(b)Grant of License. Steem hereby grants to Client, upon the terms and conditions set forth in this Agreement, a non-transferable, non-fee bearing, single use, worldwide right and license, without the right to sublicense, for software developed by Steem for use with the Web Site. Any artwork, graphics, or designs created to Client specifications for use in the Web Site become property of the Client upon the Web Site Launch. However, Steem retains the right to display any created artwork, graphics, or designs as part of Steem's portfolio of design work. Steem retains sole rights and ownership of all interactive code. The provisions of this Section 7 will survive indefinitely regardless of the completion or termination of this Agreement.
Re:I would make two version of the tree (Score:3, Informative)
That said, the other posters on this thread are quite correct in saying that the "right" approach is to craft a contract that specifies how your code may be used.
Yes you can do this and it works (Score:2, Informative)
In one case, client has the source, but the company owns the rights and if the client modifies it, all warranties are void.
In another case the client has the rights to use the code, but pays a license fee for each instance. Yes, you can have your cake and eat it too.
Escrow contracts are voided by bankruptcy (Score:5, Informative)
Conventional escrow doesn't work when customer needs it - when your company fails. A bankruptcy judge will review your company's assets, and may find that the source code is the only marketable asset, and must be preserved for your debtors. Judges have voided escrow contracts in order to maintain the remaining value of the company.
Thus, your customer is wise to ask for the source up front. And if your company is bankrupt, it's not going to matter much to you - except that you'll know you didn't screw the customer.
You need a lawyer. It's a pretty simple contract, once you've explained the parameters.
If you want to use Free-Software-friendly attorneys, I can direct you to several, but pretty much any attorney will do.
Bruce
Re:Sometimes I fail to understand people (Score:3, Informative)
That's just what guru.com says, and it is always best to have everything in writing, and it is always best to consult a lawyer, not a site like guru.com (or even slashdot.org, although we all love pointing out this fact every time this question arises over and over!)
Re:Copyright Law... (Score:3, Informative)
It has to be the same copy as originally purchased, and you couldn't keep a copy of that for yourself, but it could be redistributed.
They may also be able to create a derivative work if it is sufficiently remote from the original, as well as make fair use of it, etc.
Source Code (Score:1, Informative)
I beg to differ. . . (Score:2, Informative)
What the poster suggested is Open Source.
It is not free software because the source code comes with copyright restrictions.
Intellectual Property and the Copyright (Inform) (Score:2, Informative)
Re:Escrow contracts are voided by bankruptcy (Score:3, Informative)
If your company has no problem with opening the code to your clients
NOLO (Score:2, Informative)
I have used several books from NOLO Press to draft legal documents and contracts. All of which revolve around my Software business. Their books are very well written and understandable by us geeks with out a lot of legal knowledge.
One book stands out in my mind that you may want to check out - Web & Software Development: A Legal Guide [nolo.com]. If you do end up talking with a lawery, this book may help you to fully understand what you want and to be able to make sure that everything is included in the contract.
Life is like an elevator, sometimes you get the elevator and sometimes you get the shaft
ACTUAL CONTRACT EXCERPT... (Score:3, Informative)
This is an excerpt from one of our (my small consulting firm) contracts, where we are trying to achieve something similar, but unfortunately not exactly the same. I think it will help though.
For background, in this case, we were trying to maintian rights to the tools we developed, on the clients time, as ours, while they maintained rights to the end result - the product(s). This was to protect us for being good consultants, not building everything from scratch, as well as spending time to build reusable tools to help us build the product faster and better, and make maintenance and continuing development simpler.
I can post more of the contract if necessary, but I think this is the most pertinent.
Also, to all the "get a lawyer" folks, although you are right, he should, when drafting this contract, it was very helpful, and much more economical, to start with a contract that was similar to what we wanted and to make modifications, than it would have been to start from scratch. Lawyers are expensive.
8. Deliverables.
8.1 Work for Hire. The Consultant acknowledges that the Company is retaining the Consultant's services to, among other things, provide and/or produce original works for the Company, under the Company's direction and supervision, as identified in properly executed Statements of Work incorporated into this Agreement. The Consultant hereby assigns to the Company all right, title and interest in and to the Deliverables as "works made for hire."
8.2 Transfer of Rights. The Consultant acknowledges and agrees that the rights purchased by the Company comprise all rights in and to the Deliverables of every kind, nature and description, including, but not limited to, (i) the Deliverables themselves; (ii) the right to secure copyrights and/or patents thereon anywhere throughout the world, in the Company's name or otherwise; (iii) any and all publication rights therein in whatever form; (iv) the right to use, license, exploit, sell or otherwise dispose thereof in any manner and for any purpose the Company or its assignee sees fit; (v) any and all subsidiary rights therein; and (vi) a right of first refusal to obtain, upon terms equal to those offered to any third party, any and all rights therein which may revert to the Consultant by statute or otherwise.
8.3 Grant of Rights to Consultant. The Company hereby grants to the Consultant a perpetual, non-exclusive, worldwide, royalty-free right and license to use the Deliverables in connection with the Consultant's conducting of its internal business and in order to facilitate the Consultant's providing services to the third parties; provided, however, that the Consultant may not sublicense such rights to any third party without the Company's prior written consent.
8.4 Assistance in Obtaining Rights. The Consultant furthermore agrees that, for a period of one year from the expiration or termination of this Agreement, it will execute any documents, give testimony or do anything reasonably required by the Company, at the Company's expense, to assist the Company in obtaining, enforcing, and/or renewing copyrights and other legal protections for all Deliverables hereunder created and/or developed. The Consultant will be compensated at Consultant's then current rates.
9. Tools.
9.1 Ownership. The Company acknowledges that in the course of developing or implementing the Deliverables, Consultants may develop certain software or methodologies for the development, maintenance, or support of the Deliverables ("Tools"). Tools are not required for the intended use of the Deliverables, but merely assist in the maintenance, development, or support of the Deliverables. Notwithstanding anything to the contrary in this Agreement, Consultant will retain and own all right, title and interest in and to the Tools, including, but not limited to, copyright rights.
9.2 Grant of License to Company. The Consultant hereby grants to the Company a perpetual, non-exclusive, worldwide, royalty-free right and license to use the Tools in connection with the Company's maintenance, development, or support of the Deliverables and other Company development efforts outside the scope of the Agreement. The Company and its successors shall not sublicense, assign, provide or sell the Tools to any third party.
Make them show you the money (Score:1, Informative)
You'll forget any complications and also you'll get a lot of money.
Re:I bought source MANY times for vast amounts of (Score:1, Informative)
Re:My company (Score:3, Informative)
That's not "Open Source" (Score:3, Informative)
Just because you get the source, is not sufficient to qualify as Open Source.
The Open Source Definition [opensource.org] is effectively the same document as the Debian Free Software Guidelines [debian.org], and as such both have conditions that require that the software be alowed to be redistributed, even if modified or aggregated:
Very common (Score:2, Informative)
Re:Although he's not likely to find the definition (Score:1, Informative)
Consult the standard. The reserved word "it" is formed into the possessive form by appending an "s", forming "its". The macro "it's" preprocesses to "it is". There are more rules here than for C++, to be sure. :)