Ideal EULA for Custom Software? 72
Tiger4 asks: ""End User License Agreements (EULA) for custom developed software present a nasty problem for both developers and the customer. What rights does should the developer grant to the user, and what rights should be retained by the developer to capitalize on their effort? Similarly, the customer, who is paying for the work, wants all the rights possible to maximize their investment, but probably only needs a small subset of them, such as maintenance and upgrades. The developer probably wants to be able to re-use and resell chunks of the code; the customer doesn't want single source lock-in, so they want re-use and alteration rights too. The Open Source licenses don't solve all ills, because some processes and data may be trade secrets, or at least closely held in an industry. So what terms should definitely be in a EULA, to provide both maximum flexibility and protection for both developers and customers?"
Ask a lawyer (Score:5, Insightful)
Re:Ask a lawyer (Score:5, Insightful)
A EULA is for when it's not custom work, when you are not negotiating anything, but selling or distributing your code to an unknown (at the time of the transaction) party.
Again, as the OP stated, ask a lawyer, not slashdot.
Re:Ask a lawyer (Score:2)
Make A List (Score:1)
None (Score:4, Interesting)
None whatsoever, the client should retain the copyright. The developers have already capitalised on their effort by being paid. Rephrased, the question is more like "What's the most profitable way to avoid giving the client what they paid us to create?"
And what if they want to sell licenses to others to offset the cost they incurred?
The bottom line is if somebody pays you to create something to their specifications, then it's a work-for-hire, and they should get the copyright. If you want to re-sell the work that they've already paid you for, then you should pay them for a license.
Addendum (Score:2)
Obviously you need to talk to a lawyer too. Open-source licenses aren't EULAs, and you don't seem to be talking about EULAs anyway, but contracts put in place before work begins. They don't need any EULA to install or use your software, at least in the USA (you didn't mention what country you are in, which 99% of the time means USA).
DMCA gives EULAs teeth (Score:2)
They don't need any EULA to install or use your software, at least in the USA
You're referring to 17 USC 117 [bitlaw.com], correct? In practice, section 117 has been superseded by section 1201 [bitlaw.com], which allows a copyright owner to attach arbitrary restrictions to the decryption of the encrypted install package.
Re:None (Score:5, Informative)
I might be assuming too much, but it sounds like the OOP, Tiger,
1) Doesn't know what the hell he is talking about;
2) Thinks he can backdoor some rights into the software after-the-fact with a EULA.
Re:None (Score:2)
That's no different to if the code required any other proprietary library. Such a dependency would either be described ahead of time with appropriate licensing terms, or it would be avoided.
If you were told that you could have the project completed for $X cost with a dependency on proprietary libfoo-1.5 available at $Y cost, or have the project completed for $Z cost with no dependencies, would it really matter whether libfoo w
Re:None (Score:2)
Re:None (Score:2)
You're confusing one way things can be arranged with how they must be. Yes, one arrangement is the work-for-hire arrangement in which all rights are acquired by the employer and the developer gets nothing but his salary or the fee agreed for writing the software. That is the default arrangment when the developer is a regular employee. However, the question evidently refers to the situation in which the developer is not a regular employ but is contracted by someone to write some software. In this situation
Re:None (Score:2)
Don't get me wrong, I didn't mean to imply that this was the default state of affairs legally. I'm just saying that if you are hired to produce a specific tool, then it's pretty sleazy to lock it away and claim that it's yours even after you've been paid for it, and demand the organisation who paid for it ask you for permission to use it. That's so upside-down it's unbelievable that anybody would agree to it, and yet it happens all the time.
Re:None (Score:2)
I find nothing at all sleazy about the developer wanting to retain his copyright and the ability to reuse the code, as long as he doesn't attempt to cheat the customer to do it. It's hard to imagine why a client would ever need copyright for an in-house app, as long as they have a permissive license, and any needs for secrecy/confidentiality are spelled out ahead of time.
As has been noted, these issues should be spelled out in the w
Re:None (Score:3, Interesting)
I agree that this is sleazy if it isn't up front. One situation in which it makes a lot of sense for someone to be hired to write a program but retain the rights to it is one in which the purchaser doesn't have a lot of money and the program is one which, perhaps with adaptation, will be useful to lots of people. In this case, it makes a lot of sense for the developer to charge a relatively modest fee for writing the program and granting the client a license for it, while retaining the ability to provide t
Re:None (Score:2)
Well, what does exactly mean "you have already been paid for it"?
Does this mean they will pay me for the hours it effectlively took me to write down the program? Is that enough?
What, then, about the costs in time and money it took me to learn my trade? What the time saving my client can get because I can reuse code from previous works? What if I feel proper that future clients will take advantage from the wor
Re:None (Score:2)
Re:None (Score:2)
Well, really it's a bit more complicated than that. Sometimes you can agree that a work is a work made for hire, and sometimes you can't. I would suggest looking carefully at the definition of what is and isn't a work made for hire in 17 USC 101.
Re:None (Score:2)
Are you sure about this? It was my understanding that the vast majority of work-for-hire contracts do not reserve copyrights for the developer. Contracts where the developer holds all the copyrights are more the exception than the rule.
Certainly, in each case it depends o
Re:None (Score:2)
"Work-for-hire" nor "contracts" is "default".
AFAIK (USA+IANAL perspective), WFH status occurs when you are an employee of the company, and involves considerations above and beyond just "I pay you, you work" (I'm not sure of the exact considerations, but I know that there are some.) The default state is that of a contract employee, with copyrights defaulting to the creator (not the client). Of course, rights assignment can and should be covered in the contract agre
Re:None (Score:2)
On the other hand, I know a guy that shoots a lot o
Re:None (Score:3, Insightful)
Re:None (Score:2)
I actually had photographers in mind when I wrote that. I think keeping copyright on photos you are hired to take is pretty sleazy too.
Re:None (Score:2)
Re:None (Score:2)
What makes you say that? I never claimed it was unusual for photographers to do this, merely that I think it's pretty sleazy.
Not in the majority of cases. The line that I draw is who picks the subject matter. In the case where you, say, hire a photographer for your wedding, you pick the subject matter. In the case where you pay somebody t
Re:None (Score:4, Insightful)
That's not necessarily the case. Suppose the developer has built a library of routines that are particularly suited to a common job, such as a database for doing a "balanced scorecard". I'm contracting with them now and they'd like to use their core library to make the project go faster with fewer bugs. Sure, I get rights to the code they produce, but they don't want to allow me to distribute their library code to others.
This is pretty much the situation I'm in right now. The agreement we have is that we are co-owners in the IP of the project. The basics are:
- neither of us can release the code to the outside world without approval from the other
- we can use the code without restriction in our corporation and our subsidiaries
- they can use the code in other projects with permission and as long as there is no connection or mention of us
- they cannot use us in any promotional material ("___ corp used us, and you should too")
It keeps us from going to into business against them, and it keeps them from taking our "trade secrets" to our competitors.
It works well for both of us because there is actually some co-development going on with the project.
Re:None (Score:1)
Re:None (Score:2)
Of course, there are plenty of companies that like to think that a click-through EULA has the same strength as a contact.
Re:None unless they didn't pay for them (Score:1)
Re:None (Score:2)
Why? In any case, the client will know, not you.
Probably the computer you sent you message is full of software you don't own the copyright for (probably you don't have any single piece of software within you retain copyiright of) and, still, you are perfectly able to fullfill your needs about it. The fact we talk not about "off-the-shelve" but about "on-demand" software doesn't change the fact that the client *may* need full copyright passed to him,
Re:None (Score:2)
In your opinion: yes. Ethically: there's an argument to be made for this position, depending on the specific circumstances. Under copyright law: NO. Copyright law specifically and exclusively defines the term "work for hire", and it does not apply to entire software applications developed under contract.
The only question is copyright (Score:3, Interesting)
Now, your only problem is to whom the copyright will go. The law says that a work for hire should go to the person who did the hiring. I don't agree with that, but its pretty much settled.
Works for hire, EULAs (Score:2)
From 17 USC 101:
Re:Works for hire, EULAs (Score:2)
What makes you think so? Generally courts uphold EULAs. Some courts don't, but the pro-EULA side is winning. I would suggest looking at the ProCD case, which is the leading pro-EULA case.
Several attempts have been made to pass special legislation to make them binding, and I'm vague on this but I think a few states have?
You're probably thinking of UCITA, which was enacted by
Re:Works for hire, EULAs (Score:2)
Why is it that I cannot also patent a story? Why cannot I distribute a book with an EULA that restricts resale, and disallows any copying, even for fair use? Software EULAs do this. One of the central points in Blizzard v. Bnetd was that rights to reverse engineer for the purpose of
Re:Works for hire, EULAs (Score:2)
There's a guy who is attempting this. Of course, novelty, nonobviousness, and utility are serious hurdles, but the big one is subject matter. It's difficult to see how a plot falls within the realm of the useful arts.
Why cannot I distribute a book with an EULA that restricts resale, and disallows any copying, even for fair use?
Who said you can't? Remember, the first sale and fair use doctrines merely say that the copyright holder lacks authority over copies and wo
Re:Works for hire, EULAs (Score:2)
> copyright holder lacks authority over copies and works under certain circumstances on the
> grounds of copyright. They don't bar the establishment of independent authority over copies
> by means of contracts. And if someone agrees not to engage in a fair use, why would a court
> let them get out of it?
It is part of the deal made between the State and the copyright holder. The State grants an artificial mo
Agreed, don't use EULAs (Score:2)
Re:The only question is copyright (Score:2)
Re:The only question is copyright (Score:2)
My point is that any copyrighted work should be subject to the doctrine of first sale. Short of copying and then distributing the work in question, I should be able to do anything I wish with the work. I'm not sure if that holds up legally, but its my opinion. Similarly, I believe any non-commerical copying and distribution should not be illegal. Of course, that isn't the case.
Re:The only question is copyright (Score:1)
Negotiate it up front (Score:2)
Sorry, but... (Score:1)
Nah, try this license. (Score:1)
Re:Best EULA in existence (Score:1)
There are no EULAs to be found on the page you link to.
Re:Best EULA in existence (Score:1)
Who needs a EULA if you have a decent licence in the first place?
EULAs are not good things.
the GPL of Course (Score:1)
Re:the GPL of Course (Score:1)
The GPL is not a EULA.
Biggest issue: (Score:2)
If at all possible, use an established, recognized license. The GPL, something from Creative Commons -- hell, I love the Unreal licenses for simple brevity and readability, but chances are, you'll want something written in 20 pages of pure legalese, so make sure it's something I've seen before, so I don't have to read through it again.
It'd be so nice if there were only 5 or 10 licenses in the world, so that it's actually feasable to read them, and know what you're agreeing to when you see the l
Re:Biggest issue: (Score:1)
Re:Biggest issue: (Score:2)
notice the key word?
Re:Biggest issue: (Score:1)
notice the key word?"
Indeed. Nobody has to agree to a license. If you don't, you cannot distribute the work, but otherwise you are fine.
However, if the author wants to force you to be bound by usage restrictions, he will let you agree to a contract: the EULA.
A license is not a contract. If it were, it'd be called a contract, not a license.
Re:Biggest issue: (Score:2)
No, if you don't agree to the license under which it is released, you can not legally use a piece of software.
After all, most of them outline the restrictions not only for the distribution of the program (or writing, etc in the case of creative commons), but also for its use (even though it is usually a fairly blanket "you can use it however you want as long as you do x and y").
It's not as cut and dry
Issues raised but no answers? (Score:2)
I'm a contractor who's been developing customized versions of a simple application for an agency who uses it with client after clien
Re:Issues raised but no answers? (Score:2)
Don't you read your own words?
That's exactly the point when the software licensing attorney comes in. You already know what would you want to do with the software and know what the other part expects from the contract too. Know it's time for an attorney to translate it into legalesee.
Re:Issues raised but no answers? (Score:2)
No, I have people for that.
You're right as far as you go; I could've been more specific. We want to use the attorney as little as possible - there's a very limited and specific market for my software, and my employer is a nonprofit which gets much of its project-specific funding from taxpayer dollars, so there is strong motivation to minimize spending. If, for example, there are ready-written licenses we can adapt to at least be a jumping-off point, that could potentiall
Re:Issues raised but no answers? (Score:2)
"my employer is a nonprofit which gets much of its project-specific funding from taxpayer dollars"
And your company is still doing this _for_a_profit_?
Now: The work is not yours, but your employer's (it's a "for hire"). Your employer is a nonprofit, then GPL is quite good for the case. And it reaches your objetives: you won't need an attorney at all to use it. You just need to follow the FSF guidelines.
Best EULA? (Score:2)
I think that's what Sony is using on CDs nowadays.
Easy (Score:2)
Let me get this straight... (Score:2)
In case you hadn't noticed, you are not Microsoft. Fucking over your customers is probably not a very good business plan when there's a million other companies that would be glad to actually give them what they payed for.
GPL works (Score:2)
Look Mr Client, I ain't writing a work for hire, at least not unless you add a zero to the check. Because I'll be cutting and pasting code in from my own stash and from other Free/Open code under normal conditions and I priced this job on the basis that I'd be doing likewise with the new code written for this project on the next one, and it is a lot simpler to use one uniform license. Now, the benefit to YOU is that I'm giving you the source co
Freedom (Score:1)