Posted by robin.prieschl on October 6, 2014 at 6:03pm
We are very fortunate to have an intellectual property lawyer come talk to us at the next Drupal meet up in Johannesburg.
As this field is very vast and to help him prepare we though it would be worth canvasing the community for some topics. Please post your questions in the comments.
Comments
What do lawyers eat?
What rights does one have in South Africa with regards to one's company name or trade mark used in a domain name by another?
What's the cost and value of a trade mark, does it have to be a mark or can it be a unique enough name too and does one have to register or log such a mark in every country separately?
Do we have any obviously missed fiduciary duties or good practices with regards to DASA: https://drive.google.com/a/burtronix.com/folderview?id=0BxBR595o37uxeXdP...
Would there be some benefits in creating a list of best practices (using linters to check that developers use Drupal coding standards etc.), creating fall-back companies or other procedural business practices and the like that the community can follow. Can small companies / individuals take out insurance against their work if following such a list and can DASA help provide any such assistance? Very vague, I know, but I'm trying to group a few concerns that people raised at our meet-ups.
How binding are e-mail and other virtual agreements. For example, time coded shared Google Docs with history.
What do lawyers eat?
Code and IP
Ooh, cool idea. I'm interested to know what happens when one adds code to existing code licensed under the GNU GPL. From what I understand about that license, any code it touches it also becomes GPL'd, which means (and I may be wrong) that any custom modules written for drupal are automatically GPL'd and therefore should be distributed publicly.
I've had someone tell me that this isn't how it works; that if you run the servers where the code is deployed, then the code doesn't have to be distributed. But I'd like to know what the lawyer says.
Also, how does it work when coding for a client - who owns that code? The developer or the client? Can the client later on give the codebase to a different developer and allow them to extend it? Can the developer use the code in other projects for other clients, and if so, must permission first be obtained from the first client?
I won't be at the meetup, so if someone could record these answers I'd be really grateful.
Confirmation and Clarity on that would be great
I recall a talk at a previous DrupalCon, I think it was a Lullabot one, where these things were discussed as part of a greater project planning talk, if memory serves. In this regard they touched on making sure the client knows that you are working on GPL software and that derived work will be covered by the GPL. Or rather, that any such things should be made clear in agreements.
The part one should make clear, as you point out, is the ownership of the code you develop for them. Since anything derived and covered by the GPL need to be distributed for the GPL to be in effect. If you give the code to your client, they have it and it is covered under the GPL, including the work you did on top of Drupal. Unless you made it clear that you are simply selling them a hosted solution where you never distribute the code to them, I suspect a South African court will side on the client's assumption that the code should be given to them and belongs to them. They are then free to distribute the code further for free, but are not obliged to do so. You then, may not have the right to do so at all (for the parts you added).
So if you agree with your client not to distribute their code and they do not distribute the code, it won't leak into the open. But if they start selling the code, say a module, and one of their clients put that module on their site for free download, well, your client can't stop them from doing that. I suspect the default view when you deliver something to a client will be something like that, but it's worth making it clear because I know a few Drupal shops that assume a different default without making it clear: that the code they develop belongs to them and they (the shop) can decide to distribute or not, not their client. They take the view that they develop solutions and that the code used is just an implementation. Some such shops think along those lines and want to remain in control / ownership of the code they create while others want to be able to contribute that code back to Drupal.
Then there's the question about adding loads of creative elements to a development. Like a custom theme. I'm never very sure about creative and GPL.
Perhaps a great standard clause for Drupal shops to add to their service offerings would be something along the lines of assuring the client that their specific business logic would be for their ownership but generally useful abstractions may be released back to the GPL community. Of course, that is usually pretty much the limitation of the confidentiality agreements we all sign for big projects.
So, my add-on question to yours that tie in to the ones I asked before too: Can the DASA help our community of business with a few standard clauses that they can choose from depending on preference? The previous paragraph's one may be the best value for the Drupal community, so maybe just that one suggested one, drawn up nicely by a lawyer and quick and easy to add to your standard rates documents.
More topics / questions:
I've learned much through many years of just running Burtronix and in various other roles at companies and start-ups dating back to the pre-2000 internet boom. Some of these I feel I know the answers to well enough while for others I've settled on what I figure are safe or good business practices, but I'm not convinced at all that I know it's all perfect. So perhaps discussion on these points will help myself and other Drupal companies too:
When should one consider a trade mark for one's company if one only uses one's
company name in trade?
What sort of intellectual property filing / registration / protection is
available to GPL (General Public Licence) developers when they have a new
business process they would like to convert into SaaS (Software as a Service)?
Would one protect the idea as a whole in one filing or break it into various
smaller filings?
If one has some sort of protection from the above, say a method patent and
execute on it building on a GPL code, even releasing the code, does one
completely lose protection?
If one does not release the code, running it as SaaS and the code is
inadvertently released, say through a bug or by an unscrupulous party, how does
this affect the continued release of one's code, now in the public domain with
a GPL notice attached?
What counts as "release"?
For Web/HTML apps for mobile much of the logic can be in JavaScript, either easily
readable or fairly easily made readable, but effectively "released". So for such
components of one's SaaS product built on GPL, does one have any protection and
if such parts form part of one's initially registered protected methods, does
one lose any such elements of protection.
In variation of the following:
(implicitly / explicitly agreed to)
How strong / useful are the various agreements in our industry:
When trying to find funding for one's SaaS products potentially willing and
capable assistance often comes from people uninterested in signing
confidentiality agreements. When do you consider trust good enough?