Intellectual Property at Work?

[binibuls]

Is it true that only software can be copyrighted? Or can certain files, like Filemaker, which act like programs, be protected too?

I recently spent a lot of my own time and effort on 3 Filemaker databases, which I created at home and brought into work later. They weren't well received at first due to a pretty anti-FMP staff. Though these databases did eventually get used by other staff, I never intended to give them up to the company for [color:red]sole ownership, since most of the work was done off the clock.

They had always just had one admin password -- which was stupid because no one else knew how to develop, nor did they need to see the scripts, or delete records, etc. But then I gave notice and said I was going to take away my systems and put everything back in Excel. They refused to let me retain the admin password and leave them a nice limited-privileges user only.

They actually fired me because I had limited the user privileges, even though other databases they use have similar limitations! Not understanding why some buttons were not working (I had gone so far as to disable script completely on one), they assumed I was just locking them out. They fired me without discussing it or looking into it more closely -- the files were still readable and some still writable too! Just no scripts.

If they knew anything about FMP they would have been able to navigate records with the sidebar instead of relying on my buttons.

I actually wanted to help them get back to using Excel since they aren't at all FMP saavy and will have no idea how to troubleshoot it now that I'm gone. They hated filemaker at first. Now they fired me for trying to give them back a system they can handle on their own! I never got to finish helping them getting back to Excel. I know they'll have problems at some point with all of them (some DBs incorporate folder actions and all sorts of triggers in the finder) and will eventually give up, but I don't feel what happened was just.

Their case: because the files contained confidential student information, and had become a part of the workflow (although NOT the only way to do things), the company claimed that they had become sole owners of the files. They were on their network, therefore they owned them, and I couldn't take them with me. I think they failed to understand that I only wanted to keep clones (no record copies) for a portfolio of my work. None of these guys know what that means.

Isn't that like saying because you use Microsoft Word in a business you have a right to look at the source code? Ridiculous. Or that your license can't expire?

Isn't it like bringing in a leather-bound notebook to work -- you write down some addresses in it, and when you quit you give them the papers back, BUT NOT THE COVER TOO!

I was intimidated and forced to give out the new admin passwords for all of the files in a room full of six people, or "face criminal investigation"... then I was escorted out.

Now I have no way of protecting the applescripts and other formulas contained in the databases from anyone in the future exporting them into their own. I have no copy of those scripts for myself.

It was an awful experience working for this company, and it just makes me ill to think that after showing me so little respect for over a year, they are going to assume credit for my work. Work they never appreciated until I tried to take it back (or at least make it less functional.)

If anyone reading this has had a similar situation, or thinks I was right (or wrong) to try to protect what I feel was my intellectual property, please let me know! Remember I was never commissioned nor paid for these!

Do I have any legal rights? Do they face "criminal investigation" for taking this from me? And firing me without knowing all the facts? Would I have had to have a written agreement ahead of time, or is the author always considered the owner? How does it work when you're an hourly employee, but you did most of the work at home?

: [color:blue]*feeling like I want to die* :(

[Genx]

Their case: because the files contained confidential student information, and had become a part of the workflow (although NOT the only way to do things), the company claimed that they had become sole owners of the files. They were on their network, therefore they owned them, and I couldn't take them with me. I think they failed to understand that I only wanted to keep clones (no record copies) for a portfolio of my work. None of these guys know what that means.

Copyright is normally automatic - you develop the source code as an individual and unless you explicitly sell it or license it in some way - it is your IP.

The place at which you may run into issues is the lack of a EULA - you obviously gave them leave to use the software without any license agreement whatsoever. How you managed to leave yourself without a copy of the software given that most of your development was done "outside of work hours" though is beyond me.

In Australia our legislation states: Section 35-6 of the Copyright Act: works written by an employee within the scope of their employment belonged to their employer.

Bottom line is it's a bit iffy and hard to say without all the facts... The data is obviously theirs, but the employer would essentially have to prove that you developed the software for them (possibly even that it was done at their request), that it was within the scope of your employment to do so and that you were compensated for said development.

You'll probably have to look up the relevant legislation in America and find a few cases to back you up... or go get some legal advice.

Isn't it like bringing in a leather-bound notebook to work -- you write down some addresses in it, and when you quit you give them the papers back, BUT NOT THE COVER TOO!

Lol, on an unrelated note, there was a case in Australia where the employee actually got to keep their book... with all the addresses still in it. Edited December 13, 2007 by Guest

[Vaughan]

A couple of things (stop reading -->here<-- if you're sensitive)

1) if it took you less than a year to create this database, forget it. Somebody else can re-create it from scratch, and do it better, in a couple of weeks, for a couple of thousand dollars.

2) if you have less than $500,000 to spend on litigation, forget it.

3) if you have more than $500,000 to spend on litigation, forget it.

4) get a written contract before doing any development work you expect to be paid for. Be explicit about the price, the conditions and the specifications.

5) what's to stop you from taking a copy and selling it to somebody else? Since there isn't a written agreement how can anybody claim sole ownership of it?

--

From all of this comes good news: instead of putting all your energy into fighting this thing, YOU could re-write the software from scratch and do it better in a couple of weeks. If you want. If you think there is a customer or two who'll buy it.

If not, forget it.

[Steven H. Blackwell]

Vaughan's advice is well taken. Pay attention to it.

The law in the USA is a little different. We have the concepts of "work for hire", "agency", and "employee." All these have specific legal definitions apart from their common, ordinary meanings.

Additionally, there are specific categories covered by work for hire, and a FileMaker database [color:red]might very well not be one of those categories. Hence, they could not be works for hire, and therefore the company would not ab initio own them. However, by contract, ownership could be conveyed. Then there is the question fo what actually is conveyed, since FileMaker, Inc. has all rights to the program itself.

See US CO Circular 9, "Works Made For Hire Under The 1976 Copyright Act", on this matter.

Check the US Copyright Office web site and speak to a competent IP attorney for further advice.

How is it that you don't have a copy of this database?

Steven

[Genx]

How is it that you don't have a copy of this database?

I'm a little confused about that too...

[binibuls]

Thanks for all the input...

I don't have the latest versions of the files because they had student records in them, so I never took them home, as-is. I didn't make clones on a regular basis either, not expecting this to happen. They pulled me into a room, got the passwords, and escorted me out -- so that I wouldn't be able to touch the files. It was very unexpected.

I don't care so much about having the files, of course I could re-write what I did, but I'll never work in that exact context again. They certainly wouldn't be able to find anyone to re-write them -- most of the staff are completely incompetant. They honestly won't be able to figure out how to change the date in a field if it isn't selectable in the browser. There is one camera instructor who also wrote and maintains their server database, but I doubt they would bother getting him to look after my stuff. Very stingy people. And my databases were quite quirky and customized.

I'm more distressed by the fact that this place that I hate has my work. That they humiliated me for no reason, and got away with it. They've never done anything to deserve keeping the benefits of my system but getting rid of me. I had hoped they would realize the [color:green]value of my labor after I left, and the organization went with me. I have Marxist hang-ups.

I have found some early versions of the files, and they don't have many of the useful scripts, etc, but it's clearly the same layouts. They could possibly be used to file for a copyright, as "original publication." Except that you have to provide pages of source code... not really applicable, I think.

One of the files, a Final Cut Pro log, was made specifically for a project for another client. Again, it wasn't contracted, but wouldn't that give the first client just as much right to ownership as the Film School in their scenario? Could I get that person to claim ownership?

There was never a contract signed with regard to these files, in fact no one but my department even knew about them. Like I said, my supervisor argued against using them at first, then covered up the fact that I made them when they were clearly helping enormously. She doesn't like to share the spotlight.

I only know I signed a form at one point stating that I wouldn't take files containing classified student information out of the school. Of course, I would have only taken clones, so the whole reason for firing me was not only unfounded but premature. It's at-will anyways though.

But does the lack of contract/agreement/payment work in my favor or against me? I certainly would draft one in the future to protect myself, but the school's lack of interest at the time didn't seem to require it. Again, they are too stingy and disinterested to agree to pay me for the work, but it was such a mess there that it was impossible for me to work without helping myself out. I guess it all depends on whether it is mine our theirs by default in this case...

The term "work for hire" seems to imply work that you are hired to do. I was hired to be a teaching assistant and run film. Nothing to do with Filemaker. But if "scope of employment" means any time between my start date and end date, including nights and weekends, then that screws with things. On the other hand, it was well beyond the "scope" of my duties.

It seems pathetic, but I'm 27 and no one seems to take me seriously. I have to take jobs like this that have little to do with what I'm good at. When I try to set prices for more skilled work it tends to backfire. So I end up doing it anyway.

I've emailed an IP lawyer, and will call more tomorrow. It would settle my conscience to know one way or another if I had a right to delete those files.

I know I can't afford a lawsuit if it's $500,000, but if I had that much I would pay it, because I don't have much reason to keep going on with my life unless I can affect some kind of change. I wonder if you add in the director's homophobic comments, their practice of asking you to work overtime and not claim it, and previous acts of credit card fraud would strengthen the case, or if all of those things are just skillfully enough within the limits of the law...

I have alerted Adobe, Roxio, and Apple of their use of pirated software, so maybe there can be some sort of justice on that front at least. I also scheduled a fire inspection...

oh bother.

[David Jondreau]

While it might seem that filing a lawsuit will lead to personal growth, it's generally an event to avoid.

Consider the files to be what you paid in exchange for getting rid of a crappy job.

Move on and the first time your next employer asks you to work a weekend, say no.

[Genx]

I have alerted Adobe, Roxio, and Apple of their use of pirated software, so maybe there can be some sort of justice on that front at least. I also scheduled a fire inspection...

LOL!!!

At this point I would probably agree with the other guys. See what the lawyer says, but after that, move on, get a new job and be happier.

[binibuls]

Also, apparently in the USA copyright litigation requires copyright registration. Meaning that although I can claim authorship for files right now (since they were not work for hire), I can't file litigation without registering each one.

Which means submitting the files on CD-R, with operating software (FMP?) and user manual, and 50 pages of the source code... what would that entail for a FMP file? A read of the file as text?

I actually only appear to have kept 2 of 3 of the originals. (My documents folder at home mysteriously dissappeared last week )

I suppose I can, as suggested by several people, re-write them all to a degree that would make them considered the "best edition" (since its >1978) before submitting them for copyright.

Assuming they don't go to the trouble of trying to claim it first, pretending the author is someone else. There is an applescript "Change All" button that I use in all of the files, which has a © 2007 (MyName) at the beginning. Not a real registered copyright but fairly hard for the less saavy to cover up...

Copyright Registration for Computer Programs

[binibuls]

Very good advice. I agree that I need to move on. But I'm glad I'm figuring out how to protect these things in the future.

[David Jondreau]

Registering your copyright may not help as much as you think. Maintaining healthy communication with your client is the most important thing IMHO. That a mutually agreeable contract reviewed by an attorney who knows her tech IP law and contracts.

[Wickerman]

Like others here, I sympathize with your situation and agree that pursuing litigation is probably not a wise course of action.

I'd have to add, though, that a lot of the details in your account of the situation suggest that your approach to implementing the FMP solution was less than ideal, and I have to say I have some sympathy for your employers, too.

To begin with, it sounds as though you took it upon yourself to implement a Filemaker solution that *you* felt comfortable with, despite the reservations of other staff and your employers. That's just asking for trouble, and is inconsiderate of your colleagues. Later, you say your employers were "stupid" for having only one admin password, when you've already pointed out they don't understand Filemaker. This comes off as arrogant.

Then over time the system gets adopted by others, which means they begin relying on your system and data gets embedded in your solution. At this point you suddenly "give notice" and "inform" them that you're yanking the database. Again, you expect them to have a clear understanding of your intentions and to grasp the meaning of a 'clone' file although they are not Filemaker savvy.

At this point, they are rightly concerned about the security of their data, and your behavior probably didn't put them in a trusting frame of mind. Your having reported them to Apple et al for piracy is a rather petty and vindictive act, clearly not an act of principle, or you would have addressed the issue sooner.

Finally, your entire complaint here seems to be anticipating a wrong that has not yet been suffered: that they are going to exploit your designs for further profit by sharing them with third parties. What makes you think that? You point out they don't even understand Filemaker and you think they're going to try to cash in by peddling your scripts to others? Is that realistic?

This may sound harsh, but I really think this scenario was bound to play out badly because it seems you don't seek cooperation and agreement from your colleagues before making bold decisions and taking actions that have implications for those you work with, and for. One of the results is that your employers seem not to trust you. That's a shame, because it sounds like you had really good intentions and were very generous with your time and talent in implementing your Filemaker designs.

If you really want to get a cloned version of your files, I'd suggest you write a conciliatory letter to your former employers and offer to pay for a third-party FMP developer to derive a cloned copy from their version that they then pass along to you. That might irk you, but I think that's likely your best bet for actually getting the files.

Good luck

Albert

[Colin Keefe]

Bear in mind that the OP is - up until very recently - an in house developer in a work environment where development wasn't even part of the job description, on what was probably his/her first FM development effort.

Vaughan's right on in saying it's not worth the bother of litigating for IP. Whatever value accrued in the project is in what you learned from developing and what you learned from the experience. The physical files themselves are at this point just an artifact of that process.

I would chalk this one up to life experience, binibuls - though I think the lessons learned aren't so much about IP as about what constitutes a healthy developer-client relationship, either in-house or in a consultancy scenario. This was your first "project", which from a relationship standpoint went about as far south as it can go without a prison sentence. Though if you were serious about calling for a fire inspection...

Walk away, have a few beers, and, after a month or two, think about what went wrong and why. Do a serious, objective post-mortem on the project. If you went to film school you probably know the value of a good objective critique, even a self-critique. Chances are you'll be able to identify missteps by both parties...and they may not be the ones you think you see as the problem now.

Colin

[binibuls]

My initial reaction of anger has mostly passed, and after "a few beers", I can say that I understand now more than ever that the conditions of my work were not ideal, not clear, and that I could have done something to avoid that.

However, I want to respond to some of the comments.

I agree that some of my reactions to this experience have been vindictive. When someone has marred your professional record and humiliated you, and you have no affordable way of restoring your dignity, you tend to lash out. But I haven't lashed out by burning down the building like in Office Space -- on the contrary, calling the fire marshall to protect the safety of the students is something that I can only apologize for not having done sooner.

While I'm not the most experienced Filemaker developer, I have created databases for years in my freelance editing work. I've also contributed to the development of existing Filemaker code books on several major motion pictures. At the end of Post Production, the original author of those databases (usually the asst. editor) would deliver only a read-only copy or, more often, a print-out. That always seemed reasonable to the studios.

Although a lawsuit is too costly and, I agree, something to be avoided for everyone's sake, I would like to point out that there have been nearly identical cases in which there is dispute over IP (although we should stop calling it that, since it's actual property, not an idea or slogan), in which the courts have ruled in favor of the author. See Roeslin vs District of Colombia, for example. Like Roeslin, I wasn't hired as a programmer, or developer, or anything of the kind. I was hired as an entry-level office assistant.

I'm not saying that someone reading this should get the idea that it's OK to do work without a written agreement. If anything, I think that's the main point to be learned from this.

When I said it was "stupid" to only have one password, I was referring to my own stupidity. Yes, I should have had the other users work with more restrictions from the beginning, to help them avoid accidently deleting records. That's something I've learned.

I'm not so much concerned about this business "selling" these solutions or bits of code from them. I'm more concerned about a) them using it (against my will) and : not being able to sell these solutions to other schools due to the dispute over their ownership.

While these solutions might not have been "convenient" to my coworkers at first, because they required more work (like labeling tapes), everyone has clearly come to understand the importance of a system like this. I did openly declare to my coworkers that these were alternatives to Excel and paper logs, and if anyone (including myself) didn't like using them we could go back to previous methods. I even kept up the data entry in both Excel and Filemaker for months.

As an act of goodwill, I was dedicating my last two weeks to getting the data (which isn't ever deeply embedded in Filemaker, we all know how easy it is to "export records to excel") back to Excel, as well as providing PDFs and read-only copies of the databases. I made it clear that I was doing this, and while I didn't want the department to continue using my solutions, I was providing all of the data, and encouraged them to come up with similar ways of being organized. Like I've said, leaving these solutions in place with no one to manage them was much more harmful to business than leaving a system everyone can troubleshoot. I voiced that opinion. I was in no way "yanking" the files or the data. However, my job and income were "yanked" away from me.

I've never been fired before, and never imagined being threatened with studio blacklisting, or being escorted out of anywhere, except the maybe the prom...

The main thing that was hurtful was not have fair warning, not having a meeting about this ahead of time, and despite my clarification of what I was doing and my total cooperation at the firing meeting, the company did not sway from its course of action, which had been made rashly. It would be quite different if I had left peacefully (or been asked to leave peacefully) and still had concerns about the ownership of the works.

Yes, this is a "life experience", a horrible one, and as much as I like being condescended to by older people, it doesn't exactly make a case for the value of life.

While I support an employer's rights to know what's going on, and to continue their business as usual, I don't respect an employer that fires you without a fair warning meeting, even if they are an "at-will" employer.

I live in a country that wastes millions of tax dollars on a farce of a war, doesn't provide single-payer health care, actively opposes same-sex marriage, and provides tax cuts for the rich. I'm sorry if I'm not willing to accept injustice like a good citizen.