----- Original Message -----
From: Dave O'Brien
To: NZ Borland Developers Group - Offtopic List
Sent: Wednesday, April 09, 2008 2:44 PM
Subject: [DUG-Offtopic] Legal problem
I was asked a while ago to create some software for a business. The design
has been ongoing for quite a while (the client has been adding bits monthly)
and is nearing completion.
The problem I find now is that the business is having problems. Many
hundreds of hours work has not been paid for and a verbal agreement was made to
give me a percentage of their returns.
It now appears that that deal will not go ahead. The problem is the client
believes they own the software.
From an email:
1.. Under New Zealand Copyright Act Intellectual property in software is
owned by the person who commissions and pays or agrees to pay for the making of
a computer programme.
Well, they're right about that, as far as it goes. That's what the Copyright
act says. But it also says that this is subject to any agreement to the
contrary, i.e. you can make an agreement that you own the copyright not them.
I am of the opinion that "Goods remain the property of me until paid for in
full" and my invoices state this clearly.
Just writing that on your invoices doesn't make it an agreement, unfortunately.
But if they've paid any invoices with that written on them, and you can
honestly claim they agreed to that condition as part of your original verbal
agreement, you may have a point worth arguing.
Before I fork out for a lawyer, does anyone have any comments on this case?
Realistically, you'll probably lose this fight. If you use the work you've done
for them, they (or the receiver) will probably sue you for the profits you make
from it. Maybe you can argue that a withdrawn promise to pay you a share of the
profits does not amount to an agreement to pay. Probably the best you can
achieve is to negotiate the rights to use the work yourself, by threatening to
sue them.
Note: I am not a lawyer. My advice is worth what you paid for it.
Brian
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