Is it Legal?

[sthomas]

I have written a program on company time. Therefore I know that it is the companies property. However, the company is not a software company and will never be a software company. the software can be used for a lot of other purposes beside what we use it for. I and I alone wrote the software. I am the only developer in the company.

I asked the President/Owner about letting me sell the software and he told me he would give me a commission. Problem is he has no idea what he is talking about. I would have to support it, Create a web site to market it, run customer service, etc. All on my own time, and he wants me to simply take a small commission. Not going to happen

I am looking for a little advice as to where a line can be drawn.

If I take the software and simply upgrade it to .net from VB6 is this now no longer considered their software if done on my time.

If I go home and rewrite from memory, is this considered my software.

Any general rules I can follow??

[Kasracer]

If you wrote the program and it was not part of your job description to write the software, why the hell would it be theirs?

[crptcblade]

You'll need to check any of the paperwork you signed when you got the job. If it says anything about them owning intellectual property that you develop, and you wrote it on their time, with the programs they paid for, then they have every right to it if they want it.

[Edneeis]

Because he wrote it while working which means they were paying him to do it regardless of whether its on his job description or not.

[sthomas]

I am the developer for the company. I wrote it because I saw a need for this solution in the company. I wrote it on company time.

I just assumed it was theirs? Isn't it intelectual property?

[sthomas]

My real question is what can I do. If the company says no way to me selling it and then does nothing with it. Can I change it a bit and call it mine, if so how much of a change do I need to make. Is moving from vb6 to .net enough??

Probably a question for attorneys but I was hoping someone else had been through it.

[Kasracer]

Originally posted by Edneeis
Because he wrote it while working which means they were paying him to do it regardless of whether its on his job description or not.

As long as he did not agree to anything that would make everything he does there property, they have no way to lay claim to it.

Even if they did, I'd delete every trace of it with a removing tool which zeros the area so it's un-recoverable and publish it as my own at home under a slightly different name.

They'd have no proof

[crptcblade]

Originally posted by kasracer
As long as he did not agree to anything that would make everything he does there property, they have no way to lay claim to it.

Even if they did, I'd delete every trace of it with a removing tool which zeros the area so it's un-recoverable and publish it as my own at home under a slightly different name.

They'd have no proof

Okay, calm down MacGuyver.

If you are doing things the honest way, check your paperwork, and consult a lawyer if you you still have doubts.

If your boss said he didn't have a problem with you selling it, just get it in writing.

[sthomas]

KasRacer. Thats funny. I don't know if your serious or not. To me that seems a little unethical???

Are you suggesting I delete the program. I could certainly do that and probably get away with it, maybe?

I was kinda hoping I could accomplish this through better means.

I would however, lose my job. I suppose If i rewrote it and they found out I would lose it as well??

[Shurijo]

The key is "intellectual property", like the poster above said. Even if you create another program from scratch, you will be using the concepts and knowledged gained while you were employeed to create the first software product. You can't use any of the previous code and just "upgrade it" and consider it a new "idea".

You should contact an IP lawyer (yes, there are thousands of lawyers that specialize in this exact topic). There is also a bunch of online resources, that I don't remember the exact URLs, that discuss the topic from a programmer's viewpoint, etc.

Imagine if a MS Windows programmer left MS and "upgraded" the MS OS and tried to sell it...

Do you think you could make more profit from selling this item than combined total of the court fees and the risk of potential loss of employement?

[sthomas]

Well, it is kinda interesting because before I came to the company we had an outside contractor working for us. He wrote several programs for the company. The company told him they wanted the source code and he fought and won. Even though we asked him to write the code, told him what we wanted and paid him for it. He claimed it was his intellectual property.

I was told we could reverse engineer it. Isn't that the same thing. It's not your idea but you build it off of another model.

Well, I will take your advice and consult an attorney.

Thanks

[nemaroller]

Here's the thing...

Its probably a gray area... if you didn't sign anything laying claim to intellectual property, you probably have a very good leg to stand on. Further, if you worked on this at home as well, then you have a better chance. I assumed you probably worked on it at home, because god knows I have been.

Here's the other thing...

IF you can sell this... there's no reason to tell your boss about it. Chances are probably 0 they would ever find out. Secondly, without having access to the source code of the software you're selling, how could they possibly prove you wrote it at work, or is the same code as the one at your company. Well, they can't really. Further, they probably wouldn't bother with the legal costs unless you make 10x more money than they do, at which point, you can settle suit with them for a small measley sum.

[DevGrp]

Why did you tell your boss about selling it? Anyway remove all traces from your computer at work, then take the source code home. You wrote the program at home because you thought it would make your job a little easier, therefore you own all rights.

[BodwadUK]

Check your contract.

It would be easier if you had not told the manager about it because you could remove the source code and develop from home. They wouldnt know and wouldnt have had a leg to stand on.

DONT SELL IT IN YOUR OWN TIME FOR SMALL COMMISSION HE IS TRYING TO TAKE ADVANTAGE OF THE SITUATION.

What is the program anyway???

[Arc]

I have been thru this situation and as was said, as long as you didn't sign anything stating otherwise it is your intellectual property. The company does not have copyrights on the product therefore they have no claim to it. This is nothing like the Windows example another poster gave especially since you would not be competing with your company by selling this product since as you said they do not sell software.

If you are really worried about it, upgrade it to .net as you suggested. This would make the code different enough to where they could not possibly have a leg to stand on(not that they would anyway).

[Sheppe]

The most sure solution would be to re-write it at home in .NET. Doing it that way would change the source enough so that even if it is the same product as what you wrote for the company, it is not theirs. Also, I agree with the above posts, RE: if you didn't sign anything saying that any programs you develop/your intellectual property belong to them then it's yours.

[Shurijo]

Originally posted by sthomas
Well, it is kinda interesting because before I came to the company we had an outside contractor working for us. He wrote several programs for the company. The company told him they wanted the source code and he fought and won. Even though we asked him to write the code, told him what we wanted and paid him for it. He claimed it was his intellectual property.

The legal difference is the phrasing of the subcontractor agreement. (I go thru this during every application that I make for the government, they believe they own the source code to everything even the chair I sit in, if I make something for them.)

If your subcontract called for a "product", then he retains IP to it. If your subcontract called for a "service" then your company retains IP to it. If you provide a service to program, then your code belongs to the person paying. If you provide a product (paid based on a product fee rather than a time & materials cost amount), then you retain IP to it.

[sthomas]

I did NOT sign anything when I started for the company. We are a midsize printing company. We take datastreams and send them to the printer. I was brought in to format data strings.

We had 3 individuals who would sit and move data from an FTP site to a folder. Then they would run the data through another process. Once that finished they would copy the file to another folder and then walk out to the printing area and kick off the print job.

Not Good.

I was not asked to write the software but I did it anyway because management was blind to automation.

What it does: It is scheduling software that kicks processes off at designated times.(Nothing new as to an idea but I could not find anything like it on the market, so I built it)

I recently flew to Newark with the president to try and get a client to let us do their printing. He suggested that I demo the Software. The folks loved it and asked if they could buy it. Since the President knows nothing about software and simply wanted to obtain the account for manufacturing purposes he said nothing about the selling of the software. It was after this that I approached him on the possibility of selling it. I asked him because I felt it the honest thing to do. I think he believes if we sell it, another printing company could use it for their purposes as well.

[sthomas]

#1. What I am hearing is that the company may have been short sighted in not having me sign an agreement. Since they are not a development or software company, this gives me an advantage because they do not understand the legalities of hiring a programmer.

#2. If their is no agreement it sounds like the benefit of the doubt goes to the programmer??

[Pirate]

I agree with DevGrp . Anyways , I hate working for others because they just consume your time , effort , you make them a lot of income for little money . I wish I can work for my own .

[DevGrp]

Originally posted by sthomas
I did NOT sign anything when I started for the company. We are a midsize printing company. We take datastreams and send them to the printer. I was brought in to format data strings.

We had 3 individuals who would sit and move data from an FTP site to a folder. Then they would run the data through another process. Once that finished they would copy the file to another folder and then walk out to the printing area and kick off the print job.

Not Good.

I was not asked to write the software but I did it anyway because management was blind to automation.

What it does: It is scheduling software that kicks processes off at designated times.(Nothing new as to an idea but I could not find anything like it on the market, so I built it)

I recently flew to Newark with the president to try and get a client to let us do their printing. He suggested that I demo the Software. The folks loved it and asked if they could buy it. Since the President knows nothing about software and simply wanted to obtain the account for manufacturing purposes he said nothing about the selling of the software. It was after this that I approached him on the possibility of selling it. I asked him because I felt it the honest thing to do. I think he believes if we sell it, another printing company could use it for their purposes as well.

Dude you might have a gold mine in your hands. Here is what I would do. Copyright the program. The program is yours. Your boss did not ask you to write the program. You saw a way to boost your productivity and you did something about it. Now the only problem I see is you writing the program on company time using company resource. That might be a problem if you go to court. But I said earlier, remove all traces of the program from your computer of work.

Now, if one company wants to buy this program, my best bet is others will want to do the same. Do what the big companies do and charge a fee for each computer its installed on.

Good luck

[BodwadUK]

From how i understand it no matter when or where you write the code if you have signed no agreement then the code is your. Your employer merely has the right to use the compiled application.

You have developed it yourself with no agreement to pass it on to the company (Code) In many ways you agreed to supply it by writing it in their time but not the code and rights.

remove all trace from the PC at work beleive me the company may try and cheat YOU!!!! You are not deceiving anyone by deleting it because officially and legally it is yours. It may be wise (For your job) to

A) Seek proper legal advise
B) Confront the boss and offer him a fair deal that gives his company the only rights to use the software. Charge Well
C) if you dont like the boss then find out about demand and if the income would be enough just quit leaving no trace of the program at the company.

[birthjay]

- Seek a lawyer's advice.

- Copyright the work.

- Save ALL the information that proves YOU wrote the program even if it was at work. Keep it safe and hidden.

- As said in previous post, the agreement you may or may not have signed when you joined the company is a big issue. You can probably go to personell and look through your folder. That folder belongs to you. If you did sign something, ask for a copy of it to give you your lawyer.

- After all that is done you may or may not want to offer the company a "small" commission since you wrote it on company time or you can just pay them straight out for the time you used. HOWEVER, since you wrote the program for use at the company I do not think you did anything wrong by writing it at work.

In summary, you wrote it to make a job easier at work so writing it at work was ok. You did not sign an IP ownership agreement so it is yours. Of course, lawyers will make it hard on you regardless.

I admire you for being honest and trying to do the right thing. That is a rare thing when it comes to software. However, honesty does not included telling everything you know to people that may use your honesty against you.

Good and important thread.

[alexandros]

Why did you tell your boss about the program you wrote ?
He never would find out !!
Anyway say that you will not publish it.
You can create your own website and sell it as shareware using a registration service such as www.e-sellerate.com , www.regsoft.com ,www.digitalcandle.com etc. or even
www.paypal.com which does only take a 3% commision for each credit card sale instead of 10-15% the others take.

DO NOT GIVE A DAMN PENNY TO YOUR CAPITALIST BOSS !

They already take enough money from you and pay us nothing.

cheers and good luck

alexander

[mrunion]

I am assuming you are in the United States. If not, ignore this.

The United States Copyright Law covers the company you did the work AT and whose equipment you used to do the work. It doesn't matter that they didn't ask you to do it, whether or not you have an intellectual rights agreement or anything else.

You do NOT have the rights to distribute the code. This is unfortunate, but the fact remains it is considered a "Work Made for Hire" by the US Copyright Laws.

Thanx,
Matt

[jstansell]

One thing you can do is ask to BUY the rights to the code. Depends on just how much you think it is worth. If you can BUY them,then they are yours to do with as you please.

[Pirate]

...Unsubscribed...

[ramezb84]

here's my opinion...

priority 1 : don't do it, u'll never make enough money out of a piece of software to support you as long as your job does. its not worth risking. your boss doesn't seem to appreciate your work, but hey, most bosses are like that, just let it pass, and learn to make ur own software at home.

priority 2 : get a close friend to rewrite the same program using a different language(c#, java, vb.net) and publish it under his name. maybe even publish it in another country.

i read this quickly, so i may be a bit confused but...
were the employees who did the job manually fired after you developed your software? if so, you should probably give your boss an estimate of how much u saved the company, maybe then he will give you full ownership of your work? in any case, it would be a very bad idea to get your boss pissed by selling your software to a competing company in the same business. more of a moral thing, loyalty and crap.

hope my opinion helps/isn't repetitive

[RichardAtherton]

and my own Tuppence worth having been through this before. Is yes employment contracts used to be important, however, basically these days if you work for a company anything you produce whether on your own time and equipment or theirs belongs to them and you have no rights over it whatsoever.

Many times the issues doen't even arise especially if the application hs nothing to do with the way they conduct or operate their business. If you set up a device as in using a different langugae or getting a friend to claim copyright, if discovered then they still own the rights, it's the idea that has intellectual property rights not the method in which it was produced.

The very best thing to do is as someone suggested earlier come to written agreed terms with your employer, anything less and if you are successful opens you up to all sorts of legal problems. You see value in your work they probably don't and would think you are being a little bit fussy.

[RealisticGraphics]

Ok, probably nobody reading this now but here's my 2 cents.

From what I remember from some research I did is code in and of itself can NOT be copyrighted or owned as IP. Only the output of that code. Although I would deffinately get a lawyer or at least consult one (check out www.findlaw.com), I think that as long as you changed the output enough that, while the idea stays intact, it looks totally different there would be nothing that they could do. This is all provided that you rebuilt the program on your own time with your own development software. That's the key.

If you think about, people do this all the time. How many different e-mail programs exist? How many text editors, hex editors, coding IDE's, etc... As long as it doesn't look the same but does the same thing (hopefully with some added functionality) then it's a seperate set of software and yours.

Not to mention that I also believe for them to sue you for distribution they would have to file the appropriate copyright word at least 30 days before you started selling it otherwise they can not lay claim to the software anyway.

Shakespeare may have said to kill all the lawyers, but might as well use them why they are still around

[salvelinus]

Redundant, but get a lawyer.
If you developed it on their machine, their time, their software, etc, it's probably theirs. The issue of whether or not they asked you to write it is moot.
If you're not an employee, but an independent contractor (no taxes are taken out of your pay, and they send you a 1099), look to the agreement you signed.
Don't listen to people telling you to erase your traces, etc. That's wrong.

[taxes]

Hi,

This response is given without guarantee of it's accuracy and totally without recourse.

Let us get a few points straight.

1. You HAVE to proceed with this in an honest and legally correct way, which to be fair to you, seems to be your original intention. Even if you were prepared to be dishonest, things have gone far too far on this forum for you to assume you can now hide anything. Quite frankly, several of the postings here could be considered grounds for a conspiracy to defraud charge (or it's U.S. equivalent). You CANNOT rely on these postings to be unnaccessible. Most internet correspondence is already being checked for sensitive words by various government departments and you dare not rely on this forum being missed out of such surveillance. Also you cannot ignore the possibility that someone reading these postings might be prepared to "drop you in it" in appropriate circumstances.

2. I am sure that your programme must have some weaknesses, even bugs. You could even write some important routines at home, making them necessary for the smooth running of the programme. In such circumstances, you could sell the programme for a relatively small amount, charging a much higher figure for making yourself available for maintenance and upgrading.

3. You cannot copyright mere words, letters or figures. What copyright protects is the specific compilation of words letters and figures, in a manner which does not already exist. With regard to programming code, it is very easy to rearrange the coding to be different, but still giving the same result. Look how many musical items have very similar constructions but each one has it's own copyright protection. If you want to go down this route, then recompile the code at home, but if you damage the existing code at work, you will be open to legal action.

4. In any event, the overruling factor is What do you want your relationship with your employer to be? Obviously he has every right to be upset if you try to sell the software to a competitor. Are you prepared to lose your job over this? Would you intend to market the software during Company time or to Company contacts? Can you consider being upfront with your employer and, if the prospects are good enough, tell him your dilema; that you feel that there is a good market and that if you do not satisfy it, there is a very high probability that other people who see the results of your software will produce something similar outside of your control. Ask him to do a 50/50 deal with you and allow you to develop and market it in Company time and through Company contacts (and others).

Best of luck (and if you are very successful and want tax advice, contact me

[taxes]

Hi,
This response is given without guarantee of it's accuracy and totally without recourse.

"Well, it is kinda interesting because before I came to the company we had an outside contractor working for us. He wrote several programs for the company. The company told him they wanted the source code and he fought and won. Even though we asked him to write the code, told him what we wanted and paid him for it. He claimed it was his intellectual property."

A totally different scenario to yours. GERERALLY if the Company said to the contractor

1 "Produce the code for us" The rights are the company's

2. "Solve our problem" The rights are the contractor's.

3. "Find us a programme" The rights are the contractor's.

But any contract (verbal or written) may override the above.


Actually, you should be asking this question on a legal advice forum. The advice you get from us is, at best, intelligent guess work as there is a lot to be taken into consideration which we do not know, at worst --rubbish!!!

[RSJIG]

This is a little late in the game but.
Several years ago, I worked as a contractor for a company, they did no software development. I was allowed to program as a source of income for them. So i brought in my VS 6 and installed it. After about a year, I came up with the Idea to web enable a piece of software that we sold and supported(we were in the consulting business). My boss allowed for the development and I worked on it at home as well. When it was done, she sold it to my demise.
So here is our Situation.
1. My Idea
2. My Development Software
3. Her Time/my personal time
4. Her computer/my computer
I was awarded 50% of the sale, and the only reason, even though I had never signed a document stating intellectual property, was that the Development software used at work was owned and registered to me.
Otherwise, I would not have received squat.

You should consult a LAWYER.

[techgnome]

All of the above posts are very good reason why ALL programmers, no matter what they do or where they work should ALWAYS have some kind of agreement with the employer about works produced and their ownership.

Here, we actually have a duble whammy. Not only does everything I produce on my machine here at work belong to the company (no biggie, I don't have time for pet projects anyways) but we also have a non-compete agreements as well. Which means I can't produce anything like what we do here, but I cannot work for any other company producing similar software (which is so specialized there isn't much of a competition field) nor can I go to work for any of our clients (or potential clients) -- all for a period of one year.

Which is why I have been so carefull in my new venture and developing only at home, not discussing it with anyone here at work, and not using any of the code I've built at work (which is fine since work is VB6 and new company will be VB.NET).

Since there doesn't seem to be an agreement, it becomes a very grey area indeed. My advise would be to contact a copyright/IP lawyer.

It's tough to say one way or the other how much of a leg you have to stand on considering the speciality of the software (sorry but the email client comparison doesn't work).

TG

[taxes]

Hi,

"You should consult a LAWYER."


The people who benefit most of the time you do that are the lawyers

[salvelinus]

Originally posted by taxes
Hi,

"You should consult a LAWYER."


The people who benefit most of the time you do that are the lawyers

They'll get their money either way. But you'll lose yours without them.
You should be able to get a lawyer to review any contract/agreement, or give you advice if you don't have one, for a couple hundred dollars (U.S.). Defending it in court's another matter.

[yulyos]

Hi,

First thing take a hidden partner, that his name will be the creator of the program

chand the program language that you right
chang the name of the program
chang the look of the program

final I think every thing you get paid for it
it is not your exclusive property

Have a nice day

[Shaggy Hiker]

You might also ask how well you like your job. Since the appearance is what will matter, you have pretty much shat in your nest if you do something that they interpret as screwing them over, legal or not. It would be easier to work something out. Your bosses remark might have been ill-considered. Once he understands the issues he is raising, he might change his mind. Afterall, if he wants a cut of the profits from selling the program, then he should be willing to assume the burden of sales and support, even if that just means your time, or hiring another person.

[salvelinus]

No no no. Get explicit agreement as to what's yours and what's theirs. Legal battles, even if you win, may leave you with nothing. Some companies, I've heard, have claimed that anything you create is their property, even if you create it at home on your own system and it doesn't conflict with their niche/
Sure, they'd probably lose that suit, but you have to spend to defend it. Who's likely to have more money, you or them?
Get the lawyer. If nothing else, you can sue the lawyer for malprctice for bungling your case.