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Ideal EULA for Custom Software?

Cliff posted more than 8 years ago | from the licenses-everyone-can-be-happy-with dept.

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?"

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Obviously... (1)

Musteval (817324) | more than 8 years ago | (#15230188)

You should make them agree to give up all rights to anything ever. You own them, their families, and their property. Nobody reads EULAs.

Hey, it worked for Sony.

Re:Obviously... (0)

Anonymous Coward | more than 8 years ago | (#15230533)

How about this

I PWNED JOO FOOLS, GIV ME 1ST BORN AND $$$

Ask a lawyer (5, Insightful)

j1mmy (43634) | more than 8 years ago | (#15230200)

sheesh.

Re:Ask a lawyer (4, Insightful)

Ohreally_factor (593551) | more than 8 years ago | (#15230278)

Exactly. And if you're developing custom software, at least some, if not most, of the issues will be spelled out in the contract. You might or might not want a license agreement of some sort, but it depends on the contract you negotiate.

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 (1)

cpt kangarooski (3773) | more than 8 years ago | (#15230512)

I agree.

Make A List (1)

nikkoslack (739901) | more than 8 years ago | (#15230228)

of the rights you want to retain, and what rights you'd expect a customer to want, then rank them from most important to least important. Then take these to an IP attorney. Seriously. There's too much case law around that deals with IP that you'll never get it right yourself. It gets harder when you sell software in other states.

None (3, Interesting)

Bogtha (906264) | more than 8 years ago | (#15230232)

what rights should be retained by the developer to capitalize on their effort?

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?"

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.

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 (1)

Bogtha (906264) | more than 8 years ago | (#15230244)

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 (1)

tepples (727027) | more than 8 years ago | (#15230275)

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 (4, Informative)

Ohreally_factor (593551) | more than 8 years ago | (#15230309)

You've brought up an excellent point, but it's not always so black and white. Ownership of the copyright can (and should be be) subject to the negotiations of the contract before any work begins. If the agreement is work for hire, then you are absolutely right. But what if the project reuses code to which you already hold copyright? See, it can get a little ambigious, which is why it's important to examine all possible angles during negotiation and then spell it out in the contract.

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 (1)

Bogtha (906264) | more than 8 years ago | (#15230359)

But what if the project reuses code to which you already hold copyright?

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 was written by the same people who you are hiring to write your application?

Re:None (1)

Ohreally_factor (593551) | more than 8 years ago | (#15230395)

I think we're basically in agreement in substance. It (should) be spelled out in the contract before any work begins. Although you didn't say it explicitly, yes, the vast number of such contracts are work for hire, with no special rights reserved by the contract worker, so for the most part you are right.

Re:None (1)

belmolis (702863) | more than 8 years ago | (#15230325)

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 by default the developer owns the rights and what rights are to be transferred to the client must be negotiated. The two can agree that this is to be a work-for-hire but they need not, and it is not the default arrangment.

Re:None (1)

Bogtha (906264) | more than 8 years ago | (#15230389)

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 (1)

Arker (91948) | more than 8 years ago | (#15230453)

Well the sleaziness is in the apparent desire to strip the customers rights.

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 work contract, not slipped in at the last moment in another silly EULA like he's talking about. I can see where he's coming from - the evil empire does it, why should they have all the fun? - but, uh, no. Very unprofessional.

Spell it out clearly in the contract beforehand, whatever the case may be.

Re:None (2, Interesting)

belmolis (702863) | more than 8 years ago | (#15230580)

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 the program to others.

Re:None (1)

turbidostato (878842) | more than 8 years ago | (#15233736)

"it's pretty sleazy to lock it away and claim that it's yours even after you've been paid for it"

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 work already done?

Since there are so much variables (being the most important my ability to reuse my work, that doesn't exist in almost any other service) the only proper way to deal with it is negotiate a contract and bind to it. Maybe I will bill X if I only need to modify an already developed GPLed program (but then, we both have to bind to GPL terms); maybe I'll bill 2X if I code the whole bunch; maybe I will negotiate 3X if he wants non-exclusive rights to the source so he can ie, repackage and sell it to third parties; maybe my price will be 4X for an exclusive rights to the sources, maybe... Well, maybe we will have to discuss all the terms in extent and then clearly state them in a contract previous to start the works, yeah, this seems quite reasonable.

You don't get the realities (0)

Anonymous Coward | more than 8 years ago | (#15302410)

That's not really what it's about. I know nobody will see this at this point, but I just wanted to point it out to you Bogtha.

Our company never sells the copyright for custom software we produce. If we didn't retain copyright ownership to all the code we produced, it would be an absolute nightmare, from both a legal and technical standpoint.

We have internal libraries we reuse constantly. We have techniques we discover while working for one client that we can apply to make better software for our other clients. These things would require 100% cleanroom implementations at each step of the way if we didn't own the copyrights. We might also license third party code for inclusion that fits the project needs and budget, which we simply couldn't transfer to the client, since it isn't ours. (Yes, this includes BSD and MIT licensed code). Without retaining the rights, each project would be longer and more expensive for the client.

Typically the only clients who want the copyrights are very small shops (usually a few people, none with any intellectual property experience) or random posters on Slashdot, who wrongly feel they're being "screwed" if they don't get the copyrights. We're usually talking about one off scripts and people who post for projects on rentacoder or something. We're not talking about serious software that's expected to help businesses do their jobs, software the requires teams of developers, hundreds of hours, and benefits from the fact that we've done this before.

The issue is more complex than "I pay for it, I own it."

We certainly would never place any use restrictions on the software we develop for clients. You get full source, unlimited rights to modify and use, and so on. We regularly agree to exclusivity arrangements where we promise not to resell the completed custom software to others (competitors, for example) or retool the solution into shrinkwrapped software for X number of years or indefinitely. These clauses are more than enough to protect the investment and rights of the client. And we'll go to whatever lengths, short of selling the copyright, to ensure the client can do what it needs to do and has as many rights as it needs to have in order to accomplish its goals for the project.

But it's simply pedestrian to expect a modern custom software shop to operate without rights to what it produces. The expense and legal risk alone would inflate our rates to the point that very few companies could contract us to build software for them, and certainly not the small shops that typically demand the copyrights (at the rates they demand them, no less).

Re:None (1)

Holi (250190) | more than 8 years ago | (#15230484)

If he's developing this is as something he wants, and preferably is working on for other clients, then he should be licensing this to his customer then he sholud maintan the copyright but expect to support this for the forseeable future. If he is designing software to their specification and for thier exclusive needs then to hand off the code with minimal support but plenty of documentation, then hell it's their problem and take your money and move on. Honestly the second will probably be the most profitable

Re:None (1)

cpt kangarooski (3773) | more than 8 years ago | (#15230529)

The two can agree that this is to be a work-for-hire but they need not, and it is not the default arrangment.

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 (1)

Ohreally_factor (593551) | more than 8 years ago | (#15230549)

In this situation by default the developer owns the rights and what rights are to be transferred to the client must be negotiated. The two can agree that this is to be a work-for-hire but they need not, and it is not the default arrangment.

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 on the actual contracts involved, and contracts are inherently negotiable, but how many contract developers actually negotiate for these rights? How many businesses will accept such terms when all they need do is find another developer?

Re:None (1)

FLEB (312391) | more than 8 years ago | (#15231012)

the vast majority of work-for-hire contracts

"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 agreed to before the job begins.

Re:None (1)

Ohreally_factor (593551) | more than 8 years ago | (#15234571)

Thanks for the in sight. IANAProgrammer, although I do work as a freelancer/independent contractor in a creative field. Almost invariably, everything gets spelled out in the contract (or deal memo, in my case), and very rarely do I hold any creative rights. Nine jobs out of ten, I'm not on payroll, but paid as an independent contractor, even though on some jobs most of the equipment is provided by the client, while on others I am providing my own equipment.

On the other hand, I know a guy that shoots a lot of second unit "on location" footage for TV, and he almost always retains copyright. After the one to two year exclusivity requirement lapses, he turns around and sells it as stock footage.

The main reason that he has been able to negotiate these deals with producers is that he's giving them their location shots for non-union (yet still very healthy) rates. The producers tell him what they want, he goes and shoots it, then bills them for stock footage licensing. If you've ever seen King of Queens, you've probably seen his work.

Re:None (2, Insightful)

SpacePunk (17960) | more than 8 years ago | (#15230337)

Tell this to photographers.

Re:None (1)

Bogtha (906264) | more than 8 years ago | (#15230374)

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 (1)

Jeff DeMaagd (2015) | more than 8 years ago | (#15230519)

I agree on this point, I would never hire another photographer unless I owned the exclusive and complete rights to the pictures. But for software, the developer might bring in their own library that they made over the years to simplify often-coded tasks, and I don't think that should necessarily fall under complete customer ownership, but a subset that allows them to continue to use it for that software.

Re:None (0)

Anonymous Coward | more than 8 years ago | (#15230770)

Apparently you are unfamiliar with the entire photographic industry. Usually only staff photographers give up rights to their work. I've never seen a freelance photographer who gave up rights to commissioned works. Then again, I've never seen a freelance job that paid enough to warrant being work-for-hire.

Do you also think it's sleazy to retain the rights to a song that I pay you to record? What if I pay you to write a book? Is it sleazy for you to want to retain the copyright for that book?

dom

Re:None (1)

Bogtha (906264) | more than 8 years ago | (#15232197)

Apparently you are unfamiliar with the entire photographic industry.

What makes you say that? I never claimed it was unusual for photographers to do this, merely that I think it's pretty sleazy.

Do you also think it's sleazy to retain the rights to a song that I pay you to record?

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 to record a song, it's usually the musician that picks the subject matter. In the case where you pick the songs, e.g. an orchestra performing Bach, then you should get the copyright to the recording, not the orchestra.

The way I see it, if somebody else is telling you exactly what to do, you are merely acting as a tool of the real creator.

What if I pay you to write a book?

Again, since the author usually isn't told exactly what to write, they should get copyright. It's not a distinction based on which medium is being used, it's a distinction based on who's ultimately responsible for the nature of the final product.

Re:None (3, Insightful)

hazem (472289) | more than 8 years ago | (#15230654)

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?"

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 (1)

Watson Ladd (955755) | more than 8 years ago | (#15231342)

That's a negotiated contract, not an EULA. A EULA defines the terms under which the software can be used, and can be exited from at any time by destroying the software. It doesn't get signed. Acceptance is indecated by use, and the penalties are usually limited. IANAL, but what you described looks like a signed contract covering the work.

Re:None (1)

hazem (472289) | more than 8 years ago | (#15233643)

Right, but I imagine what's really needed here is a contract, not a EULA. This looks like a single developer making software for a single customer.

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 (1)

ralatalo (673742) | more than 8 years ago | (#15231208)

I had the idea of a sliding scale depending upon what they want. If they wanted to allow the code to be released under GPL then the cheapest rate If They wanted to walk away with the code, then the highest rate. Somewhere in between would be a middle rate with an annual maintainance fee to keep the GPL code non-releases... it would be released when the maintainance fee was dropped.

Re:None (1)

turbidostato (878842) | more than 8 years ago | (#15233676)

"None whatsoever, the client should retain the copyright"

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, he may need non-exclusive access to the sources, maybe only guaranteed maintenance for a given period, or just a binary and then forget about you. Different situations, different needs.

"And what if they want to sell licenses to others to offset the cost they incurred?"

Due to current copyright laws, that's something that will have to be agreed upon by *both* parts, and accordingly expressed in a properly suited contract. Failing to have this clearly stated on advance may mean end up expending a lot of years and a lot of money to make it clear after the fact in front of a tribunal.

"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 that's your opinion, you just have to state it in legal form in the next contract to sign when you hire such a project. Other cases will vary.

"If you want to re-sell the work that they've already paid you for, then you should pay them for a license."

Maybe.

Or maybe *they* will have to pay me for a license if they want my technologies and know-how applied to the program they pay me to write.

All in all is a case-by-case scenario. As it has been already stated, there can't possible be an "EULA" on a "one-shot" project, since "EULA" are "pro-bono" license agreements which terms has been stated *previously* to the relationship between vendor and consumer. That's obvioulsy never the case on an "on-demand" work, so the case is easy: you talk with the client about her needs, you state what the rights you want to retain are, both parts negotiate and when an agreement is reached both parts pass the job to their respective legal representatives to reach a legal document that state the verbal agreement; both parts review the agreement and then sign on the marks.

It's called a "contract".

Re:None (1)

sribe (304414) | more than 8 years ago | (#15240567)

The bottom line is if somebody pays you to create something to their specifications, then it's a work-for-hire...

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.

No (0)

Anonymous Coward | more than 8 years ago | (#15230241)

A customer who pays for the development of custom software does not want to license it. They want to own it. So the idea that they "only want a subset of the rights" or should even consider the inherently nasty document known as a EULA (in general, a legal document designed to be a contract without negotiation) is wrong.

Btw, this is how IBM got screwed back in the 1980s. They only licensed DOS when they should have bought it. Agreeing to a EULA can be a very expensive and costly mistake.

I gather you are trying to figure out ways to get your customers to swallow this bitter pill.

Try this: (-1, Troll)

dcapel (913969) | more than 8 years ago | (#15230246)

Microsoft(r) Windows(r) XP Home Edition

END-USER LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: This End-User
License Agreement ("EULA") is a legal agreement between you
(either an individual or a single legal entity) and the
manufacturer ("Manufacturer") of the computer system or computer
system component ("HARDWARE") with which you acquired the
Microsoft software product(s) identified above ("SOFTWARE"). The
SOFTWARE includes Microsoft computer software, and may include
associated media, printed materials, "online," or electronic
documentation and Internet based services. Note, however, that
any software, documentation, or web services that are included in
the SOFTWARE, or accessible via the SOFTWARE, and are
accompanied by their own license agreements or terms of use
are governed by such agreements rather than this EULA. The
terms of a printed, paper EULA, which may accompany the
SOFTWARE, supersede the terms of any on-screen EULA. This
EULA is valid and grants the end -user rights ONLY if the
SOFTWARE is genuine and a genuine Certificate of
Authenticity for the SOFTWARE is included. For more
information on identifying whether your software is genuine,
please see http://www.microsoft.com/piracy/howtotell [microsoft.com] .

By installing, copying, downloading, accessing or otherwise using
the SOFTWARE, you agree to be bound by the terms of this EULA.
If you do not agree to the terms of this EULA, you may not use or
copy the SOFTWARE, and you should promptly contact Manufacturer
for instructions on return of the unused product(s) in accordance
with Manufacturer's return policies.

SOFTWARE PRODUCT LICENSE

The term "COMPUTER" as used herein shall mean the HARDWARE, if
the HARDWARE is a single computer system, or shall mean the
computer system with which the HARDWARE operates, if the
HARDWARE is a computer system component.

1. GRANT OF LICENSE. Manufacturer grants you the following
  rights, provided you comply with all of the terms and
  conditions of this EULA:

  * Installation and Use. Except as otherwise expressly
  provided in this EULA, you may install, use, access,
  display and run only one (1) copy of the SOFTWARE on
  the COMPUTER. The SOFTWARE may not
  be used by more than one (1) processor at any one time
  on the COMPUTER, unless a higher number is indicated
  on the Certificate of Authenticity. You may permit a
  maximum of five (5) ("Connection Maximum") computers
  or other electronic devices (each a "Device") to connect
  to the COMPUTER to utilize the services of the SOFTWARE
  solely for File and Print services, Internet Information
  services, and remote access (including connection sharing
  and telephony services). The five (5) Connection Maximum
  includes any indirect connections made through
  "multiplexing" or other software or hardware which pools
  or aggregates connections. Except as otherwise permitted
  below, you may not use the Device to use, access, display
  or run the SOFTWARE, the SOFTWARE's
  User Interface or other executable software residing
  on the COMPUTER.

  * Software as a Component of the Computer - Transfer. THIS
  LICENSE MAY NOT BE SHARED,
  TRANSFERRED TO OR USED CONCURRENTLY
  ON DIFFERENT COMPUTERS. The SOFTWARE
  is licensed with the HARDWARE as a single integrated
  product and may only be used with the HARDWARE. If the
  SOFTWARE is not accompanied by new HARDWARE, you may
  not use the SOFTWARE. You may permanently transfer all
  of your rights under this EULA only as part of a
  permanent sale or transfer of the HARDWARE, provided
  you retain no copies, if you transfer all of the SOFTWARE
  (including all component parts, the media and printed
  materials, any upgrades, this EULA and the Certificate
  of Authenticity), and the recipient agrees to the terms
  of this EULA. If the SOFTWARE is an upgrade, any
  transfer must also include all prior versions of the
  SOFTWARE.

  * Mandatory Activation. THIS SOFTWARE
  CONTAINS TECHNOLOGICAL MEASURES THAT
  ARE DESIGNED TO PREVENT UNLICENSED
  OR ILLEGAL USE OF THE SOFTWARE.
  The license rights granted under this EULA are limited
  to the first thirty (30) days after you first run the
  SOFTWARE unless you supply information required to
  activate your licensed copy in the manner described
  during the setup sequence (unless Manufacturer has
  activated for you). You can activate the SOFTWARE
  through the use of the Internet or telephone; toll
  charges may apply. You may also need to reactivate the
  SOFTWARE if you modify your HARDWARE or alter the
  SOFTWARE.

  * Security Updates. Content providers are using the digital
  rights management technology ("Microsoft DRM") contained
  in this SOFTWARE to protect the integrity of their
  content ("Secure Content") so that their intellectual
  property, including copyright, in such content is not
  misappropriated. Owners of such Secure Content ("Secure
  Content Owners") may, from time to time, request MS,
  Microsoft Corporation or their subsidiaries to provide
  security related updates to the Microsoft DRM components
  of the SOFTWARE ("Security Updates") that may affect
  your ability to copy, display and/or play Secure Content
  through Microsoft software or third party applications
  that utilize Microsoft DRM.
  YOU THEREFORE AGREE THAT, IF YOU
  ELECT TO DOWNLOAD A LICENSE FROM
  THE INTERNET WHICH ENABLES YOUR USE
  OF SECURE CONTENT, MS, MICROSOFT
  CORPORATION OR THEIR SUBSIDIARIES
  MAY, IN CONJUNCTION WITH SUCH
  LICENSE, ALSO DOWNLOAD ONTO YOUR
  COMPUTER SUCH SECURITY UPDATES THAT
  A SECURE CONTENT OWNER HAS REQUESTED
  THAT MS, MICROSOFT CORPORATION OR
  THEIR SUBSIDIARIES DISTRIBUTE. MS,
  Microsoft Corporation or their subsidiaries will not
  retrieve any personally identifiable information, or
  any other information, from your COMPUTER by downloading
  such Security Updates.

  * Back-up Copy. IF MANUFACTURER HAS NOT
  INCLUDED A BACK-UP COPY OF THE
  SOFTWARE WITH THE COMPUTER ON
  PHYSICAL MEDIA (e.g. CD OR
  PARTITIONED HARD DRIVE), YOU MAY
  MAKE A SINGLE BACK-UP COPY OF THE
  SOFTWARE. You may use the back-up copy solely for your
  archival purposes and to reinstall the SOFTWARE on the
  COMPUTER. Except as expressly provided in this EULA
  or by local law, you may not otherwise make copies of
  the SOFTWARE, including the printed materials
  accompanying the SOFTWARE. You may not loan, rent,
  lease, lend or otherwise transfer the CD or back-up copy
  to another user.

  * Reservation of Rights. Manufacturer, Microsoft Licensing,
  Inc. ("MS") and its suppliers (including Microsoft
  Corporation) reserve all rights not expressly granted
  to you in this EULA.

2. DESCRIPTION OF OTHER RIGHTS AND
  LIMITATIONS.

[...]

If you acquired the SOFTWARE in the United States of America,
this Software License Agreement and Warranty are governed by the
laws of the State of Washington, U.S.A. If you acquired the
SOFTWARE outside the United States of America, local law
may apply.

EULAID:WX.2_HOM_OEM_EN

The only question is copyright (2, Interesting)

stinerman (812158) | more than 8 years ago | (#15230269)

EULAs violate the doctrine of first sale. You can't license software any more than you can license a book. The GPL, BSD, and other such distribution agreements are not EULAs and are certainly fine.

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.

Re:The only question is copyright (0)

Anonymous Coward | more than 8 years ago | (#15230368)

Again, more hogwash legal baloney on slashdot. The copyright is own by the person for whom the work was prepared, 17 USC 201(b). However, this software probably does not fit the definition of work made for hire under copyright law. See 17 USC 101. The definition is very specific. See Community for Creative Non-Violence v. Reid for a better explanation.

Even so, EULA's are about contract, not copyright. They are always made in the shadow of copyright law, but it is ultimately a state law question.

Last, you should be fired for asking a legal question on slashdot.

Works for hire, EULAs (1)

Arker (91948) | more than 8 years ago | (#15230483)

From 17 USC 101:

A "work made for hire" is--


(1) a work prepared by an employee within the scope of his or her employment; or


(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment--
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.

So yeah, good point there. As to EULAs though, they would indeed have to be contracts to be binding, but they fail so many tests of a contract they can't be that. 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? But trying to claim they're valid under contract law is just absurd.

Re:Works for hire, EULAs (1)

cpt kangarooski (3773) | more than 8 years ago | (#15230543)

As to EULAs though, they would indeed have to be contracts to be binding, but they fail so many tests of a contract they can't be that.

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 Virginia and Maryland, and which several other states opposed with anti-UCITA laws. But when EULAs are upheld, it's usually been under the traditional UCC, and not UCITA.

Re:Works for hire, EULAs (1)

stinerman (812158) | more than 8 years ago | (#15230741)

Laws regarding software are so incredibly complex. You can copyright software; you can also patent specific algorithms contained in it. You can also distribute it with an attached EULA (in some jurisdictions, as you state).

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 interoperability was specifically allowed in the DMCA. The EULA took that right away, and the court upheld it.

The funny thing is that if I publish source code in a book and sell that book to a customer, I cannot control what he does with that book (except copy it) even though I hold the copyright over that code. He may resell it, throw it on the fire, etc. If I decide to sell my software code to a consumer, but do not publish it in a physical medium, I am free to put all kinds of arbitrary restrictions on what he/she may do with it. To me, the medium in which a work is published, should not change the copyright protection afforded to the work.

Re:Works for hire, EULAs (1)

cpt kangarooski (3773) | more than 8 years ago | (#15231462)

Why is it that I cannot also patent a story?

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 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?

To me, the medium in which a work is published, should not change the copyright protection afforded to the work.

It generally doesn't, though neither of the things you talked about are elements of copyright.

Of course, I don't really care for where copyright law is, or where it's going, so I would not be averse to the law barring certain things, such as software patents (until such time as they seem to be useful) or EULAs (though not bespoke licensing agreements, waivers of rights, or the odd desirable adhesive contract such as the GPL).

Re:Works for hire, EULAs (1)

jmorris42 (1458) | more than 8 years ago | (#15251274)

> Who said you can't? Remember, the first sale and fair use doctrines merely say that the
> 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 monopoly in return for certain considerations from the creator of the work. Fair Use use is one of them. Similarly a Patent is granted on the condition that it be fully disclosed, so that even before it expires others are able to build on the invention.

If you don't believe me, look to the Blockbbuster vs damn near every video game maker court battle. The EULA clause against rental was held to be unenforcable and consider that Blockbuster wasn't buying off the rack at Walmart so a 'real contract' would have been in force as part of the bulk purchasing they would be doing. Except under very limited conditions a contract can't waive a fundamental right. Especially when dealing with a monopolist. All copyright and patent holders are by definition monopolists, holding officially granted monopolies by the State.

Re:Works for hire, EULAs (0)

Anonymous Coward | more than 8 years ago | (#15263803)

"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?"

I think the UK, for example, has something called a "public lending right". Libraries are required to pay the authors some amount of money (about 5 pence) every time a book is checked out. On some books, I believe I've seen a notice on the title page to the effect of "This book may not be loaned, except in the United States". I would think that if a publisher thought they could get away with it, they would have imposed lending restrictions in the US long ago. I don't know if anyone's brought a case on something like that, but I'd be suprised if there isn't some case history.

As screwed up as our copyright law is here in the US, at least in some ways it's still better than in Europe. "Public lending right"...sheesh.

Agreed, don't use EULAs (1)

Rocketship Underpant (804162) | more than 8 years ago | (#15230575)

In addition to what the parent said, they're insulting to your customers. Do you really want to be a bully?

Re:The only question is copyright (1)

metamatic (202216) | more than 8 years ago | (#15230814)

You're thinking of shrink-wrap or click-thru EULAs. There's no problem with a legally binding EULA if you put it on paper and have the customer sign it before they purchase the product. (Been there, done that.)

Re:The only question is copyright (1)

stinerman (812158) | more than 8 years ago | (#15230999)

I'm not sure of the actual law regarding EULAs if it is an actual contract.

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 (1)

WillAffleck (42386) | more than 8 years ago | (#15230942)

additionally, since it is literally impossible to amend such EULAs by the signer, they are not a true contract, which a real contractee can line out and initial with changes.

Negotiate it up front (1)

flooey (695860) | more than 8 years ago | (#15230320)

This seems like exactly the sort of thing that should be negotiated when the contract with the client is made to develop the software in the first place. Tell the company what rights to the software you want when you're approached about the job, see what they want, and then proceed from there. There's no one right answer.

Sorry, but... (1)

bunbuntheminilop (935594) | more than 8 years ago | (#15230508)

...nobody reads them anyway. Why don't you just copy the EULA off of a similar product? Make sure the lawyers read it first.

Nah, try this license. (1)

NuclearDog (775495) | more than 8 years ago | (#15233083)

This license is much more entertaining than any one you'd copy from a competitor, and about as effective ;)


USER TERMS OF SERVICE AND VERY BORING CONTRACT

The "USER" (you) of this Program shall agree to not steal, sell, rent to others, copy, burn or otherwise destroy Program. Program's rights are obtained, reserved and withheld by Program's programmers, artists, designers and composers. Plagiarism and theft is a breach of the Terms of Service, and Breacher is subject to the full extent of the law against computer and computer software theft, both of which are pure EEEEEVIL. By breaching this Terms of Service document, the game's creators will get very, very mad and say mean things about you. You also do not void the terms in this contract, for the User has agreed to buy this game and use it in the proper way prior to signing Terms of Service.

Good, you got past the important part. User agrees to forfeit their soul and give up all other past-times, including but not limited to sports, eating, sleeping, conversation, friendship, family, pets and civilization. Also, User agrees to hand over all assets, amounts of money of greater total than -$10 and maiden sacrifices to further our evil diabolical means to almost definitely form an army of darkness that will take over the world as well as the gaming industry by 1997.

User also agrees to allow the game's creators (hereby referred to as "The Imperials") to exploit User's body for fighting, manual labour, washing dishes, and eating 99% dolphin free soap.
Breach of this contract is punishable by any combination of book beatings, forced reading of The Place of Lions and/or Hunter in the Dark, forced viewing of Wit, Teenage Mutant Ninja Turtles: The Coming Out of Their Shells Tour and/or Ishtar, forced listening of The Land of Fruit by 4th of July Toilet, reporting other people who have breached the contract, and/or the testing of explosive and/or nuclear and nukuler weapons on User's house, estate, body or pets. If breach occurs, User will expect to be nuked in 2-6 weeks, and User agrees to pay all shipping, handling and terrorist negotiation fees.

If User (hereby referred to as, "Gullible Sucker") attempts to contact a lawyer through Gullible Sucker's now currently tapped phone lines, this is considered a breach in the Terms of Service, and will receive full repercussions nonetheless. If Gullible Sucker is in disagreement with Terms of Service, then User cannot use the Program, and is still bound to the Terms of Service.

Gullible Sucker is eligible to win prizes by registering through The Imperials' website! All you need to do is to tell The Imperials Gullible Sucker's Name, Address, Phone Number, E-mail, Credit Card Numbers and Expiration Dates, names of all female virgins in family and Work Address. Prizes include extra items for User's character in Program, and balls of drier lint. This entry form is designed to ultimately destroy the EVIL game thiefs that plague this planet, and may they all step on a porcupine barefooted, and eat a tree and die, and with all hope they will all spontaneously combust and burn into ashes, AND THEN...nevermind, back to the Terms of Service.

Gullible Sucker agrees to be nice to other online players, give away a free item once a week, co-operate, send a message to other users at least once a week, PVP fairly, avoid hacking, and most importantly, to not "player-kill" other users (hereby referred to as, "PK"). PKing will result in a super-special punishment involving Gullible Sucker's hands (or lack thereof, if PKing occurs).

Copyright 2003 The Imperials. All rights, programming, music, LYRICS, graphics, sprites, contracts, slaves and gold coins reserved. This at least applies to all the songs we made up, not the ones we stole. Used without permission. In other words, if you attempt to steal our idea, then you can just burn in !$%&.

Entry must be received by 02/31/1998. "Many will enter but few will win". Now that line sounds like something Sub-Zero would say, isn't it?

BONUS $5 MAIL-IN REBATE! Just drop in to The IMPerials' Home Base (will usually be on fire) and ("ENTRANT") must break the door into splinters, jump through a flaming hoop while in a sheepdog costume, fill out 400 pounds of forms and triplicate with Entrant's off hand while off hand is on fire, dance with donuts on Entrant's ears and on top of Entrant's head, eat an oak desk, pronounce "Petropavlovskkamchatskiy is bigger than Aleksandrovsksakhalinskiy but both are only 44 megatons smaller in mass and 2 square miles smaller in surface area combined than Ostrov Oktyabar'skoy Revolyutsii" verbatim, withstand a Driveby Poking, get thrown off the roof of a Hummer while Hummer is driving at 80 miles per hour, inhale 40 shrimp, balance on a bottle of ketchup, lick an electrical powerline on the highway, write a technical manual of at least 4,289,195,723 pages on electrical fuel injection for unicycles, defeat a German samurai in hand-to-hand combat, exhale 30 shrimp, cook non-Kraft Dinner Macaroni and Cheese without a fork or a pot, learn the entire Bushman language and take a quiz on Bushman language and get every question right to prove Entrant's competenententenency, donate 500,000,000,000,000,040 Canadian pennies to The Imperials' cause, play Beethoven's 5th Symphony on an acoustic guitar while hanging upside-down and while being eaten alive by fruit bats, swallow shrimps' exoskeletons, beat Top of the Tower by submitting the winning password and by defeating the final boss while under duress from albino spider monkeys, send in a $5 mail-in rebate, mortgage Entrant's and Gullible Sucker's homes, charge head-first into a flatscreen television set, crush a king scorpion with both of Entrant's hands, dig through the other side of the earth to a sign that says "This sign's message was not erased at the request of the original sign writer" which is 40 miles west of Beijing, break the world land speed record for driving in reverse on a John Deere Magnum lawn mower tractor, eat a spruce desk, spit on a walrus's back from 130 yards away, calculate how many licks it does take to get to the center of a Tootsie Roll, flunk the Pepsi Challenge, kill Napoleon by stabbing him in the right eye, left shoulder, right nipple, right thigh, left knee, left ankle, right foot, left big toe, left index toe, and right pinky toe with a cucumber, complete the world's second largest Lego castle, hide in an arctic deep freezer, invent scissors and the question mark, openly admit that Gullible Sucker and Entrant both are rebel scum, film Entrant and Gullible Sucker completing entry forms for mail-in rebate, destroy a Hertz Decible Reader by burping and causing overload of meter, groom a fish's legs, sing La Donna E Mobile in reverse, survive an attack by an apprentice assassin using a pencil and a grenade, chug 40 kilolitres of V8, eat a pine desk, memorize requirements to send in mail-in rebate and recite them all in less than 199 seconds, and sign and meet a written and physical Terms of Service in Gullible Sucker's own blood. If this can all be done in the proper order and in less than 40 minutes then Gullible Sucker (not Entrant) is eligible. If entry forms are not accurately completed, judges may give a subjective amount of payment instead (according to Entrant and Gullible Sucker's performance). Did we mention this mail-in rebate is for redeeming Gullible Sucker's soul? Deadline is tomorrow.

In the event of a discrepancy, this statement takes priority over all other statements contained in the Terms of Service.

Best EULA in existence (0)

Anonymous Coward | more than 8 years ago | (#15230857)

Can be found by clicking here [gnu.org] .

Re:Best EULA in existence (1)

bbc (126005) | more than 8 years ago | (#15233184)

"Best EULA in existence can be found by clicking here."

There are no EULAs to be found on the page you link to.

Re:Best EULA in existence (1)

apathy maybe (922212) | more than 8 years ago | (#15235213)

Exactly ...
Who needs a EULA if you have a decent licence in the first place?

EULAs are not good things.

Would you like to sell your soul? (0, Troll)

WillAffleckUW (858324) | more than 8 years ago | (#15230893)

or would you rather admit that, since noone reads EULAs, this is all totally unenforceable from a legal standpoint and binds noone except the gullible.

Don't Post Law If You Don't Know Law (0)

Anonymous Coward | more than 8 years ago | (#15233182)

Just because the end user doesn't read a contract doesn't mean they're not enforceable. You're propogating the Slashmyth that EULAs aren't binding because nobody reads them. All the court says is that if you have the terms RIGHT IN FRONT OF YOU and you choose to ignore them, you're SOL.

Advice: Get a lawyer friend, or purchase one, then research Clickwrap, Gateway, etc.

People know or should know that any software, etc, is going to have licensing terms. Courts know people should know. Thus, courts say people can be held liable.

the GPL of Course (1)

bruce_the_loon (856617) | more than 8 years ago | (#15231024)

What else would you expect Slashdot to recommend?

Re:the GPL of Course (1)

bbc (126005) | more than 8 years ago | (#15233430)

"The GPL of course."

The GPL is not a EULA.

Biggest issue: (1)

SanityInAnarchy (655584) | more than 8 years ago | (#15232286)

Readability.

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 license page of some random installer. Instead, every software company feels they have to reinvent the wheel -- even if the language is essentially the same, it's not obvious enough to avoid reading them -- unless, like me, you have no intention of following the agreement anyway.

That is the main right I want as a customer -- to know what rights I have.

Re:Biggest issue: (1)

bbc (126005) | more than 8 years ago | (#15233512)

The OP wasn't asking for a license, s/he was asking for a EULA.

Re:Biggest issue: (1)

bladesjester (774793) | more than 8 years ago | (#15234739)

EULA - end user license agreement

notice the key word?

Re:Biggest issue: (1)

bbc (126005) | more than 8 years ago | (#15235166)

"EULA - end user license agreement

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: (1)

bladesjester (774793) | more than 8 years ago | (#15235250)

Nobody has to agree to a license. If you don't, you cannot distribute the work, but otherwise you are fine.

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 an issue as you are trying to make it. Most licenses have aspects of what people consider to be eulas already in them. It just happens to be that, for things written under a contract agreement or similar arrangement, the "end user" is the company (not the people who work for it).

Issues raised but no answers? (1)

bscott (460706) | more than 8 years ago | (#15233524)

I'm facing a similar situation myself right now and read with interest the comments to this post - I saw lots of issues raised and opinions debated, but very few concrete responses. Obviously, contacting a software licensing attorney at some stage of the process is pretty much unavoidable, but does that mean that we can't have a substantive exchange of ideas on a public forum?

I'm a contractor who's been developing customized versions of a simple application for an agency who uses it with client after client. We're at the point where we've decided to create a more generalized, user-configurable version, so I can move on to other things and they can simply sell the shrinkwrapped app to their future clients, splitting the proceeds with me. My employer and I are on the same page with respect to all main points of the arrangement, but have no idea how to even begin to put stuff on paper. We do plan to retain legal services eventually, but I'd really appreciate any pointers to some broad-based overviews of the process, information about some of the issues to consider and/or pitfalls to avoid, etc. We don't even know the legal difference between 'licensing' and 'selling' software, just that there is one, for example, and the more we look into this the more confusing it seems to get.

Re:Issues raised but no answers? (1)

turbidostato (878842) | more than 8 years ago | (#15233781)

"but have no idea how to even begin to put stuff on paper"

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? (1)

bscott (460706) | more than 8 years ago | (#15234384)

> Don't you read your own words?

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 potentially save us money. There are various other concerns including IP protection issues that we may or may not be able partially to handle ourselves, too. Just knowing what to ask for (and about) when we walk into the office would be a big help.

Ideally I hope to contact another programmer who's gone through something similar, and maybe buy him/her a few pizzas while I pick his/her brain about stuff. But it's been years since I socialized with technically-oriented types so it may take a bit of networking to track him/her down...

Re:Issues raised but no answers? (1)

turbidostato (878842) | more than 8 years ago | (#15236147)

I think I don't get you.

"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? (1)

gstoddart (321705) | more than 8 years ago | (#15234478)

How about "All your base are belong to us"?

I think that's what Sony is using on CDs nowadays.

Easy (1)

nurb432 (527695) | more than 8 years ago | (#15236177)

"consumer has no rights after accepting this agreement"

Let me get this straight... (1)

Heretik (93983) | more than 8 years ago | (#15249915)

You get payed to develop custom software for people, then you go ahead and develop it, keep ownership, and graciously provide the customer with a restrictive license to use your code?

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 (1)

jmorris42 (1458) | more than 8 years ago | (#15251330)

Haven't done it many times but I use the GPL. Reasoning thus:

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 code. This means that WHEN it needs modifications you can get anyone to fix it. Sure I will understand it best and I hope to get that future work but I might move or get hit by a bus. You can mark the boundaries around what you consider your 'business logic' that gives you an advantage and I'll agree not to disclose that part, although I will still mine it for code fragments. Since you got it under the GPL though, YOU are still be free to do as you please with it, even resell it so long as it is under the terms of the GPL.

The only grey area is that by a strict reading of the GPL I can't waive my right to redistribute the modified work if it incorporates GPL code from other projects, but since I do pass full GPL rights to the customer I don't think my reasoning would fail even a FSF zealot's test.

Freedom (1)

dajobi (915753) | more than 8 years ago | (#15252131)

Use a Free Software license. It is unethical for the developer to take away the rights and freedoms of his users.
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