Website EULA and Copyright Notice

  • twalters84
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Post 3+ Months Ago

Hey there,

Let's say a freelance programmer creates a website for somebody. The freelance programmer is a subcontractor and the work was not a work-made-for-hire. So the freelance programmer owns the rights to the code.

What if the other party the programmer sells the website to has a copyright notice at the bottom of their website saying that they own the copyright?

Second, what rights does the party have that the code is sold to? Is this just usage rights or do they have resale and / or redistribution rights as well?

Third, if a website is already sold to somebody, can the original author send the purchaser a EULA saying what rights they have?

Sincerely,
Travis Walters
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Post 3+ Months Ago

  • Don2007
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Post 3+ Months Ago

Quote:
The freelance programmer is a subcontractor and the work was not a work-made-for-hire.


It's still a work made for hire.

I'm a subcontractor, I build a house and sell it to you. It's now yours. It's the same with the web site.
  • twalters84
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Post 3+ Months Ago

Hey there,

I would have to disagree with you.

Microsoft builds code and sells it to people.

That doesnt give them the right to redistribute or resell the software. It still belongs to Microsoft.

This question was not about whether it is a work made for hire. I am 99% sure it is not a work made for hire.

http://www.copyright.gov/circs/circ9.html

- The freelance programmer worked on website code for an individual.

- The freelance programmer worked from his own home.

- The freelance programmer could do the work anytime he wanted.

- The freelance programmer provided the tools necessary to work on the website.

- The freelance programmer received no benefits and no tax was withheld from the paychecks.

- The freelance programmer suggested 95% of the ideas which were added to the website.

- There was no written agreement stating that this was work for hire.

Sincerely,
Travis Walters
  • twalters84
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Post 3+ Months Ago

The difference is when you build a house you should have a contract as work-made-for-hire. There was no contract here.
  • joebert
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Post 3+ Months Ago

Quote:
Second, what rights does the party have that the code is sold to? Is this just usage rights or do they have resale and / or redistribution rights as well?

What do the logged communications between the programmer and other party say ?

Quote:
Third, if a website is already sold to somebody, can the original author send the purchaser a EULA saying what rights they have?

There is a reason websites and software make you agree to the EULA before to get started.

Quote:
I am 99% sure it is not a work made for hire.

Close only counts in horseshoes and hand grenagdes.
99% of facts presented in court make no difference on the verdict.

Quote:
The freelance programmer received no benefits and no tax was withheld from the paychecks.

The key word here is "paychecks".
Those paychecks combined with communications between programmer and purchaser are documents which show this was a work made for hire.

Depending on where this is and how much money changed hands, the purchaser may even 1099 the programmer which means the programmer would have to pay all of the taxes (roughly 20% of the total amount) for the transaction.
  • Don2007
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Post 3+ Months Ago

The fact the it was a 1099 doesn't stop it from being a work for hire. There doesn't have to be a written agreement saying that the work was for hire. It's automatic unless otherwise stated and
TITLE 17 > CHAPTER 2 > § 201 (b) proves what I'm saying, so you can all stop guessing.

(b) Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.



http://www4.law.cornell.edu/uscode/17/u ... -000-.html
  • twalters84
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Post 3+ Months Ago

Hey there,

Quote:
What do the logged communications between the programmer and other party say?


There was never a discussion of rights during the creation of the site. The only time rights were mentioned at all was near the end of the project. The client did not want to pay for everything so he signed a letter stating the freelancer has rights to the code and material except for branding. The freelancer did not think he needed that document but wanted to be safe regardless.

I actually have a meeting with an attorney today at 2:30 PM EST to find out what rights both parties have.

Quote:
I am 99% sure it is not a work made for hire.


http://www.copyright.gov/circs/circ9.html

My argument revolves around that document. Most of the factors contributing an employeremployee relationship under agency law were not present in which case the freelancer can be deemed an independent contractor.

Quote:
Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.


Since the work was done by an independent contractor and part 2 of that clause was not met, meaning there was no document saying this was a work-made-for-hire, then the independent contractor could be deemed the author of the material, in which case he would have all rights and the client should just have usage rights to his website.\

I believe this is the reason websites like rentacoder.com and elance.com have something in their contracts that says this is a work made for hire before projects start there.

Quote:
Those paychecks combined with communications between programmer and purchaser are documents which show this was a work made for hire.


It is hard to sell code without getting a paycheck. You mean to tell me if somebody writes a check to purchase Microsoft software, then they have full rights to Microsoft Windows?

Everything is not always black and white. Hopefully, my lawyer should be able to give a better interpretation of what is going on here and who should have what rights. I have a feeling this all might be dragged into court before its all said and done with.

The freelancer should at least be protected with full rights having that document letter at the end saying he has the rights to the code and software except for branding.

If the meeting does not go as plan today and the client has more rights than I think, then perhaps the client would settle some how. I know the client is having financial trouble and that's why he didnt want to pay in full.

I'll let you all know what happens today :)

Sincerely,
Travis Walters
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Post 3+ Months Ago

Quote:
Quote:
Those paychecks combined with communications between programmer and purchaser are documents which could show this was a work made for hire.
It is hard to sell code without getting a paycheck. You mean to tell me if somebody writes a check to purchase Microsoft software, then they have full rights to Microsoft Windows?


I missed a key word before, I've added that key word in bold above. :)

I have a feeling this would all come down to communications between the two parties if the judge is sane and someone was smart enough to save logs.

Since there is no contract the communication logs are the only record of any verbal agreements that took place, and if the developer consistiently gave the impression that the purchaser would be the owner of the project I think it would go in the purchasers favor.
I for one would consider constant references to the project as "my ***" from the purchaser with no rebuttal from the developer as acknowledgement by the developer that the purchaser would be the owner of the product.
If there's no solid indication either way, or nobody is able to produce authentic communication logs, a judge would really have no choice but to rule in favor of the author. Especially if the purchaser never paid in full, which with no logs or contracts, is probably irrelevant.

I'm interested to see how this goes, but only if I can see all of the communication logs and legal documents that end up going with it. :D
  • twalters84
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Post 3+ Months Ago

Hey there,

Quote:
I for one would consider constant references to the project as "my ***" from the purchaser with no rebuttal from the developer as acknowledgment by the developer that the purchaser would be the owner of the product.


In that case, could I show the logs contained no references of the developer saying "your ***" to the client :)

Email communication was logged by the freelancer. However, no MSN communications were logged. The freelancer was keeping a record but his sister spilled a water bottle on the laptop. Motherboard got fried sadly. I have no clue why they replaced the hard drives as they were able to get a lot of the data off them. It took them about 4 months to replace it. Incompetent company if you ask me - but that's another story :)

I probably have over 1,000 pages of email communication printed out so far and I got about 2 hours to go through it all. I better get to work.

Sincerely,
Travis Walters
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Post 3+ Months Ago

Quote:
In that case, could I show the logs contained no references of the developer saying "your ***" to the client


Sure, but if the client keeps suggesting that the product is theirs with no dispute from the developer I don't see what good it would do.

Agreements can take many forms and the validity of each form is entirely up to the interpretation of the judge who hears the case. :)
  • Don2007
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Post 3+ Months Ago

twalters84 To obtain the rights to that code, no matter who the programmer was, you or someone else, would have to file a civil suit against the web site owner. The web site owner would cite the same copyright law that I posted and your case would be lost unless you have a written agreement to the contrary.

Secondly, court cases can put a lot of stress on you. Is it really worth the time, effort and money to file the case? That's what has to be decided.
  • twalters84
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Post 3+ Months Ago

Hey there,

Don, you really should read the following:

http://www.copyright.gov/circs/circ9.html

It is only a work made for hire if the subcontractor signs an agreement that states it is a work made for hire prior to the work being completed.

If the freelancer was under the employment of the client (and not a subcontractor) then the client would have the rights. To determine if the freelancer was an employee, you would have to look at the employer-employee relationship as defined under agency law. That article above explains this.

Regardless, the freelancer has a written statement from the client that says the freelancer owns the rights to the code and material used in the creation of the site except for branding (logos, trademarks, etc).

So either way the freelancer should have all rights to the code he has written and can actually become a competitor of the client. I spoke to an attorney today and he feels that the case is strong enough to go ahead an form an LLC.

While to me it is pretty clear what rights the freelancer has, it would be up to a judge to determine what rights the client would have. The only thing the freelancer is concerned with is the client reselling or distributing the code; the freelancer does not care about the client having usage rights. If redistribution or resale occurs, then like you said, is it really worth the time, effort, and money? I suppose the freelancer could only answer that if his own website is successful.

Sincerely,
Travis Walters
  • Don2007
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Post 3+ Months Ago

If there are conflicting statues and the parties don't agree, then some lawyers are going to make some money if it goes to court.

My question now is what does the programmer gain if he wins in court and what does he lose if he doesn't?

Try to answer in dollars and compare that amount to the cost of an attorney.
  • twalters84
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Post 3+ Months Ago

Hey there,

Well, Google and other search engines do not like duplicate content. If the client distributes the freelancer's software, other people may easily input the content directly off the freelancer's website. Since the code is the same and the content is copied, the profile pages would look exactly the same.

The freelancer did delete any content the client added when imported the code to his own website.

Well, assuming the freelancer already has usage, distribution, resale, and intellectual property rights, he could not lose anything. He could gain the courts approval to restrict the client to only usage rights so the client could not redistribute the code.

It is hard to answer in dollar amounts because nobody knows how successful the website will be. It will largely depend on how much traffic it gets.

The whole situation is a mess really. Moral of the story to anybody reading this is do not trust anybody - always have an agreement beforehand even if you know the client for several years.

Sincerely,
Travis Walters
  • Don2007
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Post 3+ Months Ago

Quote:
The whole situation is a mess really. Moral of the story to anybody reading this is do not trust anybody - always have an agreement beforehand even if you know the client for several years.


I already knew that and have known that for many years. I also know, that it pays to stay out of the courts since it makes one old faster than his time.

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