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'[OT] Ethical problem'
2004\12\12@115610 by Mark

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face

       Hi,

       I designed a product for a client and he is producing and
selling it. We have no problems between us, the product is working
and the full payment was made. But we didn't signed any formal
contract. The software source code is mine, as he didn't manifest
interest in buying it. He has just the compiled code to burn his
processors.
       
       Now I have another client asking me to design a similar
product for his company or offering me royalties for the design
I already have done.

       I don't know how to manage this situation, and I'm afraid
my first client wouldn't like to know that I did a similar design
for another company.

       Would like to hear your advise on this.

       Thanks.
       Mark Jordan


____________________________________________

2004\12\12@131602 by Bob Axtell

face picon face
You must be totally ethical and decline to design the second item, UNLESS
the design is significantly different. Otherwise you might be sued later.

I normally tell the second one that I have designed a similar product
for the
first client, so the second man can contact him and perhaps license the
first
man's design.

--Bob

Mark wrote:

{Quote hidden}

>_____________________________________________

2004\12\12@132517 by Bob Axtell

face picon face
Bob Axtell wrote:

> You must be totally ethical and decline to design the second item, UNLESS
> the design is significantly different. Otherwise you might be sued later.
>
> I normally tell the second one that I have designed a similar product
> for the
> first client, so the second man can contact him and perhaps license
> the first
> man's design.
>
> --Bob
>
> Mark wrote:
>
>> Hi,
>>
>>     I designed a product for a client and he is producing and
>> selling it. We have no problems between us, the product is working
>> and the full payment was made. But we didn't signed any formal contract.
>
The fact that there is no formal agreement doesn't mean anything. There
is an automatic implication that he owns his own code, unless the
agreement spells out that he DOESN'T. Did you sign a formal NDA?

>> The software source code is mine, as he didn't manifest interest in
>> buying it. He has just the compiled code to burn his
>> processors.
>
This man is a terrible businessman. The source code IS the product.


>>
>>    
>>     Now I have another client asking me to design a similar product
>> for his company or offering me royalties for the design
>> I already have done.
>
Don't bother with royalties. You WON'T get paid. His accountant's can
cook the books against you.


>>
>>     I don't know how to manage this situation, and I'm afraid my
>> first client wouldn't like to know that I did a similar design for
>> another company.
>
Really, you need to have a lawyer look at everything. It's different in
every state and every country.


>>
>>     Would like to hear your advise on this.
>>
>>     Thanks.
>>     Mark Jordan
>>
>>
>> _______________________________________________

2004\12\12@141221 by Spehro Pefhany

picon face
At 02:55 PM 12/12/2004 -0200, you wrote:

{Quote hidden}

If it's a product that will compete directly with the first one, I would not
touch it, period. It sounds like the first guy is unsophisticated and could
well be outraged when he finds out that you are helping his competitor,
whether it's legal and/or ethical or not.

I'm not sure there's necessarily an ethical issue- suppose you charge the
guy the same amount (or more) as it would cost to do it from scratch-- who is
harmed by that? But I don't think it would be a good business decision- it
could look really bad and it would be hard to prove that you did the right
thing in those circumstances.

Best regards,

Spehro Pefhany --"it's the network..."            "The Journey is the reward"
spam_OUTspeffTakeThisOuTspaminterlog.com             Info for manufacturers: http://www.trexon.com
Embedded software/hardware/analog  Info for designers:  http://www.speff.com




____________________________________________

2004\12\12@142454 by Wouter van Ooijen

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>        I designed a product for a client and he is producing and
> selling it. We have no problems between us, the product is working
> and the full payment was made. But we didn't signed any formal
> contract. The software source code is mine, as he didn't manifest
> interest in buying it. He has just the compiled code to burn his
> processors.

What have you learned? Even when you don't see potential problems,
always make clear which parts of your code are yours, his, GPL, or
whatelse you feel appropriate. But never leave it unclear. Idem for the
total design.

>        Now I have another client asking me to design a similar
> product for his company or offering me royalties for the design
> I already have done.
>
>        I don't know how to manage this situation, and I'm afraid
> my first client wouldn't like to know that I did a similar design
> for another company.

Much like 'which uC should I use' your question lacks a lot of details.
How much money or other interests is involved with the two projects?
Could you simply refer the second customer to the first one? Could you
consult the first one to ask what he feels? Could you 'buy back' your
design from the first customer and then sell it (for more) to the second
one? Is this second customer worth considering anyway? Do you have a
colleage who you could refer the second customer to (the colleague could
do you a similar favour later)? etc...

Wouter van Ooijen

-- -------------------------------------------
Van Ooijen Technische Informatica: http://www.voti.nl
consultancy, development, PICmicro products
docent Hogeschool van Utrecht: http://www.voti.nl/hvu


____________________________________________

2004\12\12@142912 by Ake Hedman

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face
Mark wrote:

{Quote hidden}

Hi Mark,

I rather often also have this situation. I always decline to take on the second job. If it's *very* different then I see no problem if you use code form the first project  in the new project.  Where the  line is is hard to say but if  there is not something sad about  me reusing code fragments and algorithms I use them in other projects while using all code form a project in another is a no no.

/Ake

--  ---
Ake Hedman (YAP - Yet Another Programmer)
eurosource, Brattbergavägen 17, 820 50 LOS, Sweden
Phone: (46) 657 413430 Cellular: (46) 73 84 84 102
Company home: http://www.eurosource.se      Kryddor/Te/Kaffe: http://www.brattberg.com
Personal homepage: http://www.eurosource.se/akhe
Automated home: http://www.vscp.org


___________________________________________

2004\12\12@153634 by o Yipmantin

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Hi all,

This is a common problem with people who makes software for a specific
hardware.

I have 20 years developing software for many companies, but never 2
companies in the same activity.

By other side, I want to ask you (the group) the following question:

In this case, who is the owner of the copyrights of the product?

Is the client of our friend, or our friend by his job making the
firmware?

Who has the original idea? The client? or our friend?

The world of copyrights is a little bit hard to handle, I was a worker
in a company who has a lot of licenses from many companies as Warner
Bros., Miracle Studios, etc. etc., and believe me is a BIG problem to
handle that kind of products with companies who are in the same
activity.

Any way, I don´t like to make the same thing two times, so my vote is NO
for the second.

Regards,

Augusto, OA4CVT
 
-----Mensaje original-----
De: .....piclist-bouncesKILLspamspam@spam@mit.edu [piclist-bouncesspamKILLspammit.edu] En nombre
de Ake Hedman
Enviado el: Domingo, 12 de Diciembre de 2004 02:29 p.m.
Para: Microcontroller discussion list - Public.
Asunto: Re: [OT] Ethical problem

Mark wrote:

{Quote hidden}

Hi Mark,

I rather often also have this situation. I always decline to take on the

second job. If it's *very* different then I see no problem if you use code form the first project  in the new project.  Where the  line is is hard to say but if  there is not something sad about  me reusing code fragments and algorithms I use them in other projects while using all code form a project in another is a no no.

/Ake

--  ---
Ake Hedman (YAP - Yet Another Programmer)
eurosource, Brattbergavägen 17, 820 50 LOS, Sweden
Phone: (46) 657 413430 Cellular: (46) 73 84 84 102
Company home: http://www.eurosource.se      Kryddor/Te/Kaffe: http://www.brattberg.com
Personal homepage: http://www.eurosource.se/akhe
Automated home: http://www.vscp.org


___________________________________________

2004\12\12@154721 by John Pearson

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face
You should talk to an attorney.

----- Original Message -----
From: "Mark" <.....markKILLspamspam.....cpovo.net>
To: <EraseMEpiclistspam_OUTspamTakeThisOuTmit.edu>
Sent: Sunday, December 12, 2004 8:55 AM
Subject: [OT] Ethical problem


{Quote hidden}

> ______________________________________________

2004\12\12@165726 by Roland

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face
At 02:27 PM 12/12/2004 -0500, you wrote:
{Quote hidden}

mmm, can't agree with that. His service is design. Give the customer what
he wants.

Lets say I do mechanical design;-)

"Can you design a fridge for me?"
Ah sorry, I've already done that.

"Well, we're looking at doing microwave ovens too"
Gee, I designed one of those too, but I can make you a toaster!
______________

Change the design to suit the new client, then you'll be selling something
different.


Regards
Roland Jollivet

____________________________________________

2004\12\12@173919 by Bob Barr

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On Sun, 12 Dec 2004 11:25:09 -0700, Bob Axtell wrote:

>>>     Now I have another client asking me to design a similar product
>>> for his company or offering me royalties for the design
>>> I already have done.
>>
>Don't bother with royalties. You WON'T get paid. His accountant's can
>cook the books against you.
>

That depends heavily on the contract and  your on-going relationship
with the company.

By basing the royalties on gross sales rather than the net, there's
very little opportunity for sharp-pencilled accountants to "adjust"
your payments. The gross is the gross; the net is whatever the
accountant wants it to be. :=)

Just be sure to include a clause in the contract that allows you
access to their books for an audit if you ever need to do so.


Regards, Bob

____________________________________________

2004\12\12@220315 by Bob Ammerman

picon face
Note: the following are simply my opinions based on my own ideas of what is
right and wrong.

To the several posters who recommended the OP talk to an attorney: The SUBJ:
of this thread is "Ethical problem". Forgive me if I think a lawyer is a
very poor choice to go to when asking about ethics.

This is a relatively simple matter: what did the original customer expect
they were getting for their money? In the absence of a written contract your
obligation to the first customer, from an ethical viewpoint, is just this:
you must meet their expectations. (Why? because those expectations are the
effective contract between you, if you are trying to be ethical). If you
don't know what those expectations were/are, you would be best to discuss
them with the original customers.

If there is any doubt in your mind after taking the above into account then
it would not be being ethical for you to take the second customer on.

Finally, if you do decide to take the second customer on, then you should
probably talk to a lawyer to ensure the legality of your action (but only
_after_ doing the above).

Again, just my opinion.

Bob Ammerman
RAm Systems





{Original Message removed}

2004\12\13@005309 by Ed Browne

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face
If you are in the states, your state probably has an ethics test for the PE
license that might give you some guidance.  In my state a verbal agreement
is a contract so check your local laws.

I work in a fairly narrow field and my clients must know that their
interests are protected.  Normally they make it legally binding by an NDA.
Almost always this is slanted for the client so I have a mutual NDA that is
fair.

Personally, it's a no brainer - I have politely explained that I have done a
similar project for another client so can't do theirs.  Most people will
remember your honesty and try you again later.

And finally, a good reputation takes a long time to build, but very little
time to destroy.



       Hi,

       I designed a product for a client and he is producing and
selling it. We have no problems between us, the product is working
and the full payment was made. But we didn't signed any formal
contract. The software source code is mine, as he didn't manifest
interest in buying it. He has just the compiled code to burn his
processors.

       Now I have another client asking me to design a similar
product for his company or offering me royalties for the design
I already have done.

       I don't know how to manage this situation, and I'm afraid
my first client wouldn't like to know that I did a similar design
for another company.

       Would like to hear your advise on this.

       Thanks.
       Mark Jordan


____________________________________________

2004\12\13@044507 by Jinx

face picon face
> I don't know how to manage this situation, and I'm afraid
> my first client wouldn't like to know that I did a similar design
> for another company.

I think you'd be right to say the Customer #1 wouldn't be too
impressed if you sold "his" product to Customer #2. BUT it
may help to explore it further

Would he be afraid of competing with this other company ?

Would he be agreeable to #2 having the product if he got
some remuneration for allowing this ?

Would production quantities of #2 be more or less than #1
(shouldn't "really" affect ethics but in the practical world it's
going to be a point worth considering for both you and #1)

If #2 doesn't get it from you, can they engineer it themselves
and cut you out of the loop anyway ?

I'll assume, because you've asked, that you do have good
ethical sense, but some people/companies don't. It could
be worthwhile discussing this with #1 rather than saying
nothing and perhaps ending up a smudge on #2's sole

Robert P Bell is a US patent attourney and former patent
examiner who has a lot of good tips and advice for the inventor
and developer. You may find he has something helpful for you

http://users.starpower.net/robertbell.marksee/INDEX.html

For example, "The Poor Man's Patent"

http://members.cox.net/robertpbell/ARTICLES/POOR.HTM


____________________________________________

2004\12\13@080624 by Aza D. Oberman

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face
<Augusto Yipmantin adds to the discussion>
<snip>
> By other side, I want to ask you (the group) the following question:

> In this case, who is the owner of the copyrights of the product?

In the US there is the idea of "work for hire" where the employer or client
owns the copyright.  Absent an explicit agreement to the contrary this tends
to be the default.

In practive, art reproduced for illustrations seem to be becoming an
interesting exception.

> Is the client of our friend, or our friend by his job making the
firmware?

I'm clueless there.

> Who has the original idea? The client? or our friend?

That's a tough nut because it goes to the question of invention and
patentability.

The general rule is that mere application of technology, no matter how
advanced, is not invention.

There's an odd little legal ditty: "The duty perceived is the duty indeed."
If you can see how the client might be harmed, you have a duty to not harm
the client.

The situation that bugs me is when the client runs out of money or interest
and stiffs the developer for part of the cost.  Can the developer peddle the
design elsewhere to mitigate damages to the developer, or does the
developer's duty to the client continue even when the developer is not
compensated.

Aza D. Oberman

____________________________________________

2004\12\15@155255 by madscientist

picon face
Since you have no agreement with the first customer both they and you
are free to do as you please.  i'd say sell it or use parts of it in
what you sell to others and don't worry about it.  you might ask the
first customer, but if you had no arrangement or agreement (even verbal)
about it being proprietary and the first customer owning it then they
have no right or reason to expect that you won't sell it to someone
else.  

now if it was loosely implied that it be proprietary or that the first
customer would own some or all of the rights then you have a dilemma in
theory though you are probably legally ok to do what ever you want with
the code and other design elements you created.  if you do talk to the
first customer make sure they know they don't have any legal rights as
of yet, you might offer to let them buy those rights for a reasonable
amount but make sure that you don't give the impression of extorting
them (though some people are so paranoid and expect so much more than
what they've paid for they'll view anything as a shake down).
seriously, it sounds like you've retained all the rights other than the
first customers nonexclusive right to duplicate the machine readable
code in which case there is no conflict.  

i don't see any moral or legal issues but i'm not a lawyer.  if it is
possible to work out a reasonable agreement with the first customer
after the fact i would encourage you to do so.  if you can not work out
a reasonable agreement with the first customer talk to a real lawyer,
though you are probably ok.  depending on what you've designed and who
the first customer is they may say "go for it" and not be concerned or
they may claim rights they clearly don't have and get very angry
(generally not the type of people you want to do business with, there
are customers that are not worth the trouble though sometimes one is
desperate enough to put up with them for awhile..).

basically, you have no agreement with the first customer and they have
none with you in which case either party is likely free to do anything
they wish.  if you can substantially reuse the design and get royalties
i'd do that but make sure that they don't have an exclusive license
either (which you really can't give them given the first customers
"established" right to duplicate the code because you've been allowing
them to do so, though in some places that can be fought as well if
desired).  the law is ugly and complex, the moral issues are fairly
simple and i'd again say that from a strictly moral, ethical standpoint
that you are free to sell to others all or part of the code/hardware
design or license it to others as you wish.  if someone paid you to put
in a doorbell would you feel bad using the techniques you had learned to
put in another door bell for someone else?

the specifics about any verbal or other agreement with the first
customer and anything implied are definitely relevant but if these
issues were never discussed or alluded to i think you are free both
morally and legally, but check with a real lawyer!  i'm not a lawyer and
i don't play one on the net, any comments i've made should not be
construed as legal advice which i do not and can not give because i am
not a lawyer.  (standard disclaimer).  i've only stated my opinions and guesses.

Mark wrote:
{Quote hidden}

------

--
All we are saying is please tell the truth, Mr. Bush. <http://snipurl.com/bajp>
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____________________________________________

2004\12\15@160351 by madscientist

picon face
i think that if you own the code, you own the code.  it also depends on
whether you were an employee or a contractor.  an employee might not
have the right, but i think a contractor would.  again, if the first
customer hasn't paid for an exclusive right i don't think they have one.
by not making a formal arraignment i'd say the exclusivity could be
argued either way.  i suspect the original compensation wasn't
consistent with the idea of an exclusive right in which case it is
implied that they don't have an exclusive right.  in contract law there
must be a benefit to both parties and it must be relatively equal for
both parties or it is generally not considered a binding contract.
because of this i'd say that unless he paid you what a "reasonable"
person would expect for total ownership that they don't have total ownership.

depending on the product they might or might not be a terrible business
man.  if it's a small thing for a small market that will soon be
obsolete they are better off not paying for more ownership than they
need.  however, things should always, always be spelled out in writing
for the sake of both parties.  i really, really think the best, most
ideal thing to do would be to discuss this with the first customer and
come up with a reasonable written agreement even though the work has
already been done.  you may or may not need an attorney for this, a lot
depends on who you are dealing with and how "reasonable" they are.
again depending on how you were compensated and what if any employment
agreement you had "reasonable" could vary a lot.  i really recommend
being open and straight forward with the first customer.  at the same
time i don't think there is anything preventing you from starting over
and writing similar code as long as you don't copy any of it, this would
be like a "clean room" os although programers unfamiliar with the
original source are usually used for that.  with software you are bound
to come up with your own subroutines etc. that you will reuse often, you
want to make sure you have the right to do that even if you don't have
the right to duplicate the whole program or write another with the same
function.  i could be wrong, you really should talk to a lawyer, you can
probably get a free hour consultation from one and then you know where
you stand legally.  ethically it depends on what was implied though i'd
consider what the other person thought they were buying even if they
never said it out loud.  paper really is important!

Bob Axtell wrote:
------
> >> The software source code is mine, as he didn't manifest interest in
> >> buying it. He has just the compiled code to burn his
> >> processors.
> >
> This man is a terrible businessman. The source code IS the product.
------

--
All we are saying is please tell the truth, Mr. Bush. <http://snipurl.com/bajp>
http://snipurl.com/bajr http://snipurl.com/bajz www.heise.de/tp/r4/artikel/18/18957/1.html
http://snipurl.com/baji http://snipurl.com/bak1 http://snipurl.com/bajl http://207.44.245.159/article7454.htm
http://207.44.245.159/article7457.htm http://snipurl.com/b9xk http://snipurl.com/b9xn
____________________________________________

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