IP ownership in software contract clauses Many software contract templates will say something along the lines of "All intellectual property [...] that is developed or produced under this Agreement, will be the sole property of the Client." This can't be right. If I modify open source code as part of the work done, by nature of the open source license that code can not become intellectual property of the client. If I have my own code/scripts/settings/templates/etc that I use as a contractor, and I modify those in the interest of coding efficiency in the interest of serving the client, it hardly seems correct that these assets become property of the Client. Am I mistaken? Do I need to amend the clause?
This can't be right. If I modify open source code as part of the work done, by nature of the open source license that code can not become intellectual property of the client. Certainly it can. That which is "developed or produced" would be the modifications to the pre-existing code, i.e the copyright on the derivative work so created. If the base code was under a share-alike or copy-left license, then the client can only distribute it under the same license (or a compatible one, perhaps). But nothing compels the client to distribute it, and for the client's use, the client owns the copyright, without fear of any future claims by the contractor. If I have my own code/scripts/settings/templates/etc that I use as a contractor, and I modify those in the interest of coding efficiency in the interest of serving the client, it hardly seems correct that these assets become property of the Client. Those are your work, and you can choose whether to sell the copyrights to the client or not. Again, only the work done for that client would be covered under the wording quoted above, unless there is another provision that grants the client a license to use the pre-existing work which you modified for the job, which there probably ought to be. Or I suppose the agreement could assign copyrights in pre-existing work to the client, but that seems an odd choice, and the language in the question would not do that. You and the client could agree on a different provision such as: The contractor grants to the client a fully-paid, non-exclusive permanent license to use all intellectual property developed under this agreement, and any pre-existing works that may be incorporated therein. The contractor warrants that s/he is entitled to grant such license, without infringing on the intellectual property of any other person or entity. That wording would have the contractor retain all copyrights and other IP, but provide a license to the client to use it without further payment or expiration. Many other ways to structure such a provision are possible, dividing the rights up however the contractor and client can agree. The price for the work might vary depending on what rights the client obtains. Both forms, and many others, are perfectly legal, it is just a question of what the contractor chooses to sell, and what th4e client chooses to buy.
What happened is that you created a legal mess. You are obviously on the hook for copyright infringement. The maintainers of the project will scramble to replace your code with newly written code. They will likely ask your company which code they are complaining about - that puts your company into the problematic situation that they shouldn't identify code that isn't theirs, that it will be hard to sue for infringing code when they didn't give the project maintainers a chance to fix it, and that everything they identify will be replaced. Since it is your actions that caused the trouble, anyone suffering damages from your actions can sue you.
Multipage contracts, like any multipage texts, will likely bear some level of originality and so they will have a copyright owner. Absent a license allowing you to reuse the text, you will not be allowed to do so. The fact that you were a party to a contract represented by the text does not change your position: your contract does not have anything to do with the copyright of its text, therefore you still need to honor the copyright as if you were not a party to the contract. It is not uncommon that the copyright will be owned by the lawyer who drafted the text. Your business partner who supplied it would have employed/contracted one. Or, the lawyer could have provided the text to your business partner together with the copyright (less common). Why wouldn't fair-use be at play here? Don't you already get the permission to copy and modify the contract from the original party when they send it to you? (Is such right only limited to original execution?) The original party, whether it is the copyright owner or just a license holder, can send the text to you for possible copy and modification in the course of executing the contract with that party only. The copy that you receive is provided solely with the express purpose to make you an offer (so that you know the terms of the contract) and give opportunity to suggest modifications i.e. make a counter-offer. To reuse the text with another party you need a permission/license from the copyright owner. Fair-use won't play here because you'd be using the text for the purpose it was created for—executing contracts—as opposed to, say, writing a research paper on language/phrases used in legal documents. Does it at all invalidate the agreement itself if the party that supplied the contract doesn't actually own the copyright to it? After all, if you're not legally allowed to have a copy of the text that specifies the terms of the contract, how would it be possible to adhere to such terms? Most contracts do not even need to be in writing. The text will be just one of the evidences if your contract, not the contract itself. No matter whether you obtained the text legally or not, it still does its job as evidence. Whilst you may well be sued for the copyright infringement, in no way will it affect the validity of your contract, which will still hinge on those well-known 6 elements having nothing to do with the copyright of the text.
if I directly purchase this custom content... As a general rule, &quot;intellectual property&quot; is very different from tangible property - arguably, &quot;intellectual property&quot; is a misnomer. Trying to apply concepts from property law (such as &quot;a thing has a single owner, who can do anything not illegal with it as they please&quot;) is fraught with danger. You would generally not &quot;purchase content&quot;, but rather purchase a license for the content, allowing you to do various things. One of those things might be to &quot;curate/edit this collection of recordings and present it publicly as an art project (probably just online)&quot;. Another might be to &quot;to sell or otherwise profit from this&quot;. All that depends on what your contract says. In an ideal world(?), contracts would all be detailed enough to leave no uncertainty about what is allowed and what is not. In the real world, a bunch of SMS can form a contract. For instance, the following is a contract: A (version 1): Hey B, could you send me a clip of you waving at the camera? I will pay $10 for it. B: sure ...but it’s not clear what A and B agreed as to what the clip would be used for. Saving and viewing on A’s device, probably yes; putting it in fullscreen in the next blockbuster movie, probably no. Showing it to A’s friends, putting it in an art project? That’s getting dicey. You might have heard about &quot;work for hire&quot; granting full copyright control to whoever pays for the work to be created. In the united-states, the above exchange does not explicitly designate the content as work-for-hire, as would be required by 17 U.S.C. § 101 (&quot;...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire&quot;). Here’s a better SMS contract: A (version 2): Hey B, could you send me a clip of you waving at the camera? I will use it to make an art project, collating many such clips, and publishing that on the internet. I will pay $10 for it. B: sure Here there’s no question that B agreed with the proposed use. On the other hand, it’s likely than a different use would be deemed a copyright violation - the contract was proposed by A and should be understood as limiting A’s right to use the clip to exactly what they said they would do. If they wanted it to say something else, they could have sent a different SMS (see contra proferentem).
IANAL, but a EULA is a Contract of Adhesion https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion and restrictions against publishing benchmarking data about products is fairly common https://www.eff.org/wp/dangerous-terms-users-guide-eulas A contract is a contract, even a click-through, and is legally binding; there is plenty supporting case law. You sign when you click: http://smallbusiness.findlaw.com/business-operations/contracts-and-electronic-signatures.html Basically, VMware has lots more money than you do. If they are annoyed at your posting of benchmarks that don't make their products look as good as they feel they should, they can at very least send a DMCA to the site that posts the benchmarks. Whether that works could depend on where the website is hosted. At most, they could take you to civil court, if you are in their jurisdiction. What happens, if you refuse to take your unapproved benchmark down? Can they sue you? Yes. (In civil, not criminal court). How much leg does a clause like this stand on the courts? In the United States? A contract is a contract. And VMware and you (I assume) are in the US, so the contract is enforceable. In the rest of the world? Outside of the US, enforceability is variable; that is searchable in law databases for each country and agreements between countries. Consider your motives for posting benchmarks against VMware's EULA. Do you have good points to make? Or are you simply complaining about the product? Who has more money to spend defending or fighting the EULA? You or them? If you're seriously concerned about this, talk to a lawyer and don't take legal advice from the general public.
Why do you think Oracle have not been protecting their trade mark? Using a trade mark to describe the product (“Written in JavaScript”, “Seeking JavaScript developer”) is not an infringement and the trade mark owner is under no obligation to, indeed, cannot stop this. Where they are required to defend their trade mark is when it is being used in such a way that there is the risk of confusion that the goods or services could be confused with the trade mark owner’s goods or services. Further, they are not required to defend all breaches, only enough to show that they are actively doing so. Also it is not important that the trade mark be associated with the trade mark’s owner. Do you know who owns the trade mark “Ben &amp; Jerry’s”?
For cases where this occurred within the United States, with works created on or after January 1, 1978: (the OP has since clarified that their scenario occurred elsewhere) By default, the author (the actual creator) of a work is the owner of the copyright. However, this is not the case if the work is a &quot;work made for hire&quot; for an employer. In that case, the company is considered the author of the work, and owns the copyright. From US Copyright Office Circular 09: If a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual. Works are considered to be made for hire in two situations, as described by that circular (emphasis added): a) a work prepared by an employee within the scope of his or her employment or b) a work specially ordered or commissioned...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If no written agreement was signed and no employment relationship existed, then ownership of the copyright to the software would go to the person who wrote it, and they would be able to do anything that a copyright holder could do with a work, including using it however they want or selling it. Do note that this would only apply to software or changes made by the person in this situation. They could not, for example, sell or distribute any other piece of the software written by other people without the copyright holder's permission, even if these pieces are necessary to use the software that this person created.
The GPL does not forbid you from charging money for software, nor does it require you to provide source code to the general public. What the GPL requires is that your software be free software, with "free" used in the sense of "free speech" rather than the sense of "free beer." According to the Free Software Foundation (authors of the GPL), the right of users to sell software is a requirement for it to be free software. If you receive a GPL license for software, you can give it to whoever you want provided you also ensure that person can get the source code. You don't need to make the source code available to the public, only to the people you actually distribute the binaries to. The GPL is structured along the lines of "if you distribute the software to someone, you must give them these rights;" it is not structured along the lines of "you must distribute the software." Of course, if users have the right to distribute copies for free, it's hard in practice to charge money (all it takes is one user distributing copies). But that doesn't mean you can't try. Some companies make substantial money selling free software through various models (e.g. Red Hat, which charges money for support). Others might bank on the fact that plenty of people are willing to pay to get it from the official site, and aren't interested in finding a free copy somewhere. It doesn't matter; as long as they license the software to you under the GPL and give purchasers access to the source code on the same terms, they're in the clear (if you want to redistribute binaries, it's your job to redistribute the source code as well).